IndyMac MBS, Inc. Depositor IndyMac Bank, F.S.B. Seller and Servicer Deutsche Bank National Trust Company Trustee and Supplemental Interest Trust Trustee Pooling and Servicing Agreement Dated as of May 1, 2006 Home Equity Mortgage Loan Asset-Backed...
IndyMac
MBS, Inc.
Depositor
IndyMac
Bank, F.S.B.
Seller
and Servicer
Deutsche
Bank National Trust Company
Trustee
and Supplemental Interest Trust Trustee
____________________________________
Dated
as
of May 1, 2006
_____________________________________
Home
Equity Mortgage Loan Asset-Backed Trust
Series
INDS 2006-A
Home
Equity Mortgage Loan Asset-Backed Certificates
Series
INDS 2006-A
TABLE
OF
CONTENTS
ARTICLE
I DEFINITIONS
|
|
Section
1.01
|
Definitions.
|
Section
1.02
|
Rules
of Construction.
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES
|
|
Section
2.01
|
Conveyance
of Mortgage Loans.
|
Section
2.02
|
Acceptance
by the Trustee of the Mortgage Loans.
|
Section
2.03
|
Representations,
Warranties, and Covenants of the Seller and the
Servicer.
|
Section
2.04
|
Representations
and Warranties of the Depositor as to the Mortgage
Loans.
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
Section
2.06
|
Execution
and Delivery of Certificates.
|
Section
2.07
|
[Reserved].
|
Section
2.08
|
REMIC
Matters.
|
Section
2.09
|
Covenants
of the Servicer.
|
Section
2.10
|
Purposes
and Powers of the Trust
|
ARTICLE
III ADMINISTRATION AND SERVICING OF
MORTGAGE LOANS
|
|
Section
3.01
|
Servicer
to Service Mortgage Loans.
|
Section
3.02
|
Reserved.
|
Section
3.03
|
Reserved.
|
Section
3.04
|
Reserved.
|
Section
3.05
|
Trustee
to Act as Servicer.
|
Section
3.06
|
Collection
of Mortgage Loan Payments; Servicing Accounts; Collection Account;
Certificate Account; Distribution Account; Excess Reserve Fund
Account.
|
Section
3.07
|
Collection
of Taxes, Assessments, and Similar Items Escrow
Accounts.
|
Section
3.08
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
Section
3.09
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account
and the
Excess Reserve Fund Account.
|
Section
3.10
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
Section
3.11
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
Section
3.12
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
Section
3.13
|
[Reserved].
|
Section
3.14
|
Trustee
to Cooperate; Release of Mortgage Files.
|
Section
3.15
|
Documents,
Records, and Funds in Possession of the Servicer to be Held for the
Trustee.
|
Section
3.16
|
Servicing
Compensation.
|
Section
3.17
|
Access
to Certain Documentation.
|
Section
3.18
|
Annual
Statement as to Compliance.
|
Section
3.19
|
Assessments
of Compliance and Attestation Reports.
|
Section
3.20
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
Section
3.21
|
[Reserved].
|
Section
3.22
|
Prepayment
Charges.
|
Section
3.23
|
[Reserved].
|
Section
3.24
|
[Reserved]
|
Section
3.25
|
Commission
Reporting
|
ARTICLE
IV DISTRIBUTIONS AND ADVANCES BY THE SERVICER
|
|
Section
4.01
|
Advances.
|
Section
4.02
|
Priorities
of Distribution.
|
Section
4.03
|
Monthly
Statements to Certificateholders.
|
Section
4.04
|
Allocation
of Interest Shortfall and Realized Losses
|
Section
4.05
|
Supplemental
Interest Trust.
|
Section
4.06
|
Tax
Treatment of Net Swap Payments and Swap Termination
Payments.
|
Section
4.07
|
Certain
Matters Relating to the Determination of LIBOR.
|
Section
4.08
|
Distributions
and Allocation of Realized Losses to the REMIC I Regular Interests
and
REMIC II Regular Interests.
|
ARTICLE
V THE CERTIFICATES
|
|
Section
5.01
|
The
Certificates.
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
Section
5.04
|
Persons
Deemed Owners.
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
Section
5.06
|
Maintenance
of Office or Agency.
|
ARTICLE
VI THE DEPOSITOR AND THE SERVICER
|
|
Section
6.01
|
Respective
Liabilities of the Depositor and the Servicer.
|
Section
6.02
|
Merger
or Consolidation of the Depositor or the Servicer.
|
Section
6.03
|
Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others.
|
Section
6.04
|
Limitation
on Resignation of the Servicer.
|
Section
6.05
|
Inspection.
|
ARTICLE
VII DEFAULT
|
|
Section
7.01
|
Events
of Default.
|
Section
7.02
|
Trustee
to Act; Appointment of Successor.
|
Section
7.03
|
Notification
to Certificateholders.
|
ARTICLE
VIII CONCERNING THE TRUSTEE AND THE SUPPLEMENTAL INTEREST TRUST
TRUSTEE
|
|
Section
8.01
|
Duties
of the Trustee and the Supplemental Interest Trust
Trustee.
|
Section
8.02
|
Certain
Matters Affecting the Trustee and the Supplemental Interest Trust
Trustee.
|
Section
8.03
|
Trustee
and Supplemental Interest Trust Trustee Not Liable for Certificates
or
Mortgage Loans.
|
Section
8.04
|
Trustee
and Supplemental Interest Trust Trustee May Own
Certificates.
|
Section
8.05
|
Trustee’s
Fees and Expenses.
|
Section
8.06
|
Eligibility
Requirements for the Trustee and the Supplemental Interest Trust
Trustee.
|
Section
8.07
|
Resignation
and Removal of the Trustee and the Supplemental Interest Trust
Trustee.
|
Section
8.08
|
Successor
Trustee or Supplemental Interest Trust Trustee.
|
Section
8.09
|
Merger
or Consolidation of the Trustee or the Supplemental Interest Trust
Trustee.
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
Section
8.11
|
Tax
Matters.
|
Section
8.12
|
[Reserved]
|
Section
8.13
|
[Reserved]
|
Section
8.14
|
[Reserved]
|
Section
8.15
|
Access
to Records of Trustee.
|
Section
8.16
|
Suits
for Enforcement.
|
ARTICLE
IX TERMINATION
|
|
Section
9.01
|
Termination
upon Liquidation or Purchase of the Mortgage Loans.
|
Section
9.02
|
Final
Distribution on the Certificates.
|
Section
9.03
|
Additional
Termination Requirements.
|
Section
9.04
|
Termination
of the Supplemental Interest Trust.
|
ARTICLE
X MISCELLANEOUS PROVISIONS
|
|
Section
10.01
|
Amendment.
|
Section
10.02
|
Recordation
of Agreement; Counterparts.
|
Section
10.03
|
Governing
Law.
|
Section
10.04
|
Intention
of Parties.
|
Section
10.05
|
Notices.
|
Section
10.06
|
Severability
of Provisions.
|
Section
10.07
|
Assignment.
|
Section
10.08
|
Limitation
on Rights of Certificateholders.
|
Section
10.09
|
Inspection
and Audit Rights.
|
Section
10.10
|
Certificates
Nonassessable and Fully Paid.
|
Section
10.11
|
Official
Record.
|
Section
10.12
|
Protection
of Assets.
|
Section
10.13
|
Qualifying
Special Purpose Entity.
|
Section
10.14
|
Rights
of the Swap Provider.
|
SCHEDULES
Schedule
I Mortgage Loan Schedule
|
|
Schedule
II: Representations and Warranties of the Seller/Servicer as
of
the Closing Date
|
|
Schedule
III: Representations and Warranties as to the Mortgage Loans as
of the
Closing Date or Cut-off Date, as applicable
|
|
Schedule
I Mortgage Loan ScheduleS-I-1
Schedule
II: Representations and Warranties of the Seller/Servicer as
of
the
Closing DateS-II-1
Schedule
III: Representations and Warranties as to the Mortgage Loans as of the Closing
Date or Cut-off Date, as applicableS-III-1
EXHIBITS
Exhibit
A:
|
Form
of Class A and Subordinated Certificates
|
|
Exhibit
B:
|
Form
of Class P Certificate
|
|
Exhibit
C:
|
Form
of Residual Certificate
|
|
Exhibit
D:
|
Form
of Class C Certificate
|
|
Exhibit
E:
|
[Reserved]
|
|
Exhibit
F:
|
[Reserved]
|
|
Exhibit
G-1:
|
Form
of Initial Certification of Trustee
|
|
Exhibit
G-2:
|
Form
of Delayed Delivery Certification
|
|
Exhibit
H:
|
Form
of Final Certification of Trustee
|
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
|
Exhibit
J:
|
Form
of Transferor Certificate
|
|
Exhibit
K:
|
Form
of Swap Agreement
|
|
Exhibit
L:
|
Form
of Rule 144A Letter
|
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
|
Exhibit
N:
|
Form
of Request for Release (Mortgage Loan Paid in Full, Repurchased,
and
Released)
|
|
Exhibit
O-1:
|
Form
of Certification to be Provided by the Depositor with Form
10-K
|
|
Exhibit
O-2:
|
Trustee’s
Officer’s Certificate
|
|
Exhibit
P:
|
[Reserved]
|
|
Exhibit
Q:
|
[Reserved]
|
|
Exhibit
R:
|
Servicing
Criteria to be addressed in Assessment of Compliance
|
|
Exhibit
S:
|
Reporting
Responsibility
|
This
Pooling and Servicing Agreement,
dated
as of May 1, 2006, among IndyMac MBS, Inc., a Delaware corporation, as
`depositor (the “Depositor”),
IndyMac Bank, F.S.B. (“IndyMac”),
a
federal savings bank, as seller (in that capacity, the “Seller”)
and as
servicer (in that capacity, the “Servicer”),
and
Deutsche Bank National Trust Company, a national banking association, as trustee
(the “Trustee”)
and as
supplemental interest trust trustee (the “Supplemental
Interest Trust Trustee”),
Witnesseth
That
In
consideration of the mutual agreements herein contained, the parties agree
as
follows:
Preliminary
Statement
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in each REMIC
(as defined herein) created hereunder. The Trust Fund will consist of a pool
of
assets consisting of the Mortgage Loans and certain other related assets subject
to this Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the Mortgage Loans and certain other related assets (other than the
Supplemental Interest Trust, the Excess Reserve Fund Account and the Swap
Agreement) subject to this Agreement as a REMIC for federal income tax purposes,
and such pool of assets will be designated as REMIC I. The Class R-I Interest
will evidence the sole class of residual interests in REMIC I for purposes
of
the REMIC Provisions. The following table irrevocably sets forth the
designation, the REMIC I Remittance Rate, the initial Uncertificated Balance
and, for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii),
the latest possible maturity date for each of the REMIC I Regular Interests
(as
defined herein). None of the REMIC I Regular Interests will be
certificated.
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||
I
|
Variable(2)
|
$18,836,261.47
|
June
25, 2036
|
|||||
I-1-A
|
Variable(2)
|
$1,597,500.00
|
June
25, 2036
|
|||||
I-1-B
|
Variable(2)
|
$1,597,500.00
|
June
25, 2036
|
|||||
I-2-A
|
Variable(2)
|
$1,829,000.00
|
June
25, 2036
|
|||||
I-2-B
|
Variable(2)
|
$1,829,000.00
|
June
25, 2036
|
|||||
I-3-A
|
Variable(2)
|
$2,057,500.00
|
June
25, 2036
|
|||||
I-3-B
|
Variable(2)
|
$2,057,500.00
|
June
25, 2036
|
|||||
I-4-A
|
Variable(2)
|
$2,281,000.00
|
June
25, 2036
|
|||||
I-4-B
|
Variable(2)
|
$2,281,000.00
|
June
25, 2036
|
|||||
I-5-A
|
Variable(2)
|
$2,500,000.00
|
June
25, 2036
|
|||||
I-5-B
|
Variable(2)
|
$2,500,000.00
|
June
25, 2036
|
|||||
I-6-A
|
Variable(2)
|
$2,713,000.00
|
June
25, 2036
|
|||||
I-6-B
|
Variable(2)
|
$2,713,000.00
|
June
25, 2036
|
|||||
I-7-A
|
Variable(2)
|
$2,919,500.00
|
June
25, 2036
|
|||||
I-7-B
|
Variable(2)
|
$2,919,500.00
|
June
25, 2036
|
|||||
I-8-A
|
Variable(2)
|
$3,118,000.00
|
June
25, 2036
|
|||||
I-8-B
|
Variable(2)
|
$3,118,000.00
|
June
25, 2036
|
|||||
I-9-A
|
Variable(2)
|
$3,308,500.00
|
June
25, 2036
|
|||||
I-9-B
|
Variable(2)
|
$3,308,500.00
|
June
25, 2036
|
|||||
I-10-A
|
Variable(2)
|
$3,488,500.00
|
June
25, 2036
|
|||||
I-10-B
|
Variable(2)
|
$3,488,500.00
|
June
25, 2036
|
|||||
I-11-A
|
Variable(2)
|
$3,659,000.00
|
June
25, 2036
|
|||||
I-11-B
|
Variable(2)
|
$3,659,000.00
|
June
25, 2036
|
|||||
I-12-A
|
Variable(2)
|
$3,819,000.00
|
June
25, 2036
|
|||||
I-12-B
|
Variable(2)
|
$3,819,000.00
|
June
25, 2036
|
|||||
I-13-A
|
Variable(2)
|
$3,967,500.00
|
June
25, 2036
|
|||||
I-13-B
|
Variable(2)
|
$3,967,500.00
|
June
25, 2036
|
|||||
I-14-A
|
Variable(2)
|
$4,098,000.00
|
June
25, 2036
|
|||||
I-14-B
|
Variable(2)
|
$4,098,000.00
|
June
25, 2036
|
|||||
I-15-A
|
Variable(2)
|
$4,222,000.00
|
June
25, 2036
|
|||||
I-15-B
|
Variable(2)
|
$4,222,000.00
|
June
25, 2036
|
|||||
I-16-A
|
Variable(2)
|
$4,299,000.00
|
June
25, 2036
|
|||||
I-16-B
|
Variable(2)
|
$4,299,000.00
|
June
25, 2036
|
|||||
I-17-A
|
Variable(2)
|
$4,234,000.00
|
June
25, 2036
|
|||||
I-17-B
|
Variable(2)
|
$4,234,000.00
|
June
25, 2036
|
|||||
I-18-A
|
Variable(2)
|
$4,105,500.00
|
June
25, 2036
|
|||||
I-18-B
|
Variable(2)
|
$4,105,500.00
|
June
25, 2036
|
|||||
I-19-A
|
Variable(2)
|
$4,053,500.00
|
June
25, 2036
|
|||||
I-19-B
|
Variable(2)
|
$4,053,500.00
|
June
25, 2036
|
|||||
I-20-A
|
Variable(2)
|
$3,921,500.00
|
June
25, 2036
|
|||||
I-20-B
|
Variable(2)
|
$3,921,500.00
|
June
25, 2036
|
|||||
I-21-A
|
Variable(2)
|
$4,199,500.00
|
June
25, 2036
|
|||||
I-21-B
|
Variable(2)
|
$4,199,500.00
|
June
25, 2036
|
|||||
I-22-A
|
Variable(2)
|
$5,922,000.00
|
June
25, 2036
|
|||||
I-22-B
|
Variable(2)
|
$5,922,000.00
|
June
25, 2036
|
|||||
I-23-A
|
Variable(2)
|
$6,539,500.00
|
June
25, 2036
|
|||||
I-23-B
|
Variable(2)
|
$6,539,500.00
|
June
25, 2036
|
|||||
I-24-A
|
Variable(2)
|
$6,144,000.00
|
June
25, 2036
|
|||||
I-24-B
|
Variable(2)
|
$6,144,000.00
|
June
25, 2036
|
|||||
I-25-A
|
Variable(2)
|
$5,726,500.00
|
June
25, 2036
|
|||||
I-25-B
|
Variable(2)
|
$5,726,500.00
|
June
25, 2036
|
|||||
I-26-A
|
Variable(2)
|
$5,384,500.00
|
June
25, 2036
|
|||||
I-26-B
|
Variable(2)
|
$5,384,500.00
|
June
25, 2036
|
|||||
I-27-A
|
Variable(2)
|
$4,803,000.00
|
June
25, 2036
|
|||||
I-27-B
|
Variable(2)
|
$4,803,000.00
|
June
25, 2036
|
|||||
I-28-A
|
Variable(2)
|
$3,329,500.00
|
June
25, 2036
|
|||||
I-28-B
|
Variable(2)
|
$3,329,500.00
|
June
25, 2036
|
|||||
I-29-A
|
Variable(2)
|
$2,581,000.00
|
June
25, 2036
|
|||||
I-29-B
|
Variable(2)
|
$2,581,000.00
|
June
25, 2036
|
|||||
I-30-A
|
Variable(2)
|
$2,494,000.00
|
June
25, 2036
|
|||||
I-30-B
|
Variable(2)
|
$2,494,000.00
|
June
25, 2036
|
|||||
I-31-A
|
Variable(2)
|
$2,411,000.00
|
June
25, 2036
|
|||||
I-31-B
|
Variable(2)
|
$2,411,000.00
|
June
25, 2036
|
|||||
I-32-A
|
Variable(2)
|
$2,330,000.00
|
June
25, 2036
|
|||||
I-32-B
|
Variable(2)
|
$2,330,000.00
|
June
25, 2036
|
|||||
I-33-A
|
Variable(2)
|
$2,252,000.00
|
June
25, 2036
|
|||||
I-33-B
|
Variable(2)
|
$2,252,000.00
|
June
25, 2036
|
|||||
I-34-A
|
Variable(2)
|
$2,176,500.00
|
June
25, 2036
|
|||||
I-34-B
|
Variable(2)
|
$2,176,500.00
|
June
25, 2036
|
|||||
I-35-A
|
Variable(2)
|
$2,103,500.00
|
June
25, 2036
|
|||||
I-35-B
|
Variable(2)
|
$2,103,500.00
|
June
25, 2036
|
|||||
I-36-A
|
Variable(2)
|
$2,033,500.00
|
June
25, 2036
|
|||||
I-36-B
|
Variable(2)
|
$2,033,500.00
|
June
25, 2036
|
|||||
I-37-A
|
Variable(2)
|
$1,965,000.00
|
June
25, 2036
|
|||||
I-37-B
|
Variable(2)
|
$1,965,000.00
|
June
25, 2036
|
|||||
I-38-A
|
Variable(2)
|
$1,899,500.00
|
June
25, 2036
|
|||||
I-38-B
|
Variable(2)
|
$1,899,500.00
|
June
25, 2036
|
|||||
I-39-A
|
Variable(2)
|
$1,835,500.00
|
June
25, 2036
|
|||||
I-39-B
|
Variable(2)
|
$1,835,500.00
|
June
25, 2036
|
|||||
I-40-A
|
Variable(2)
|
$1,774,500.00
|
June
25, 2036
|
|||||
I-40-B
|
Variable(2)
|
$1,774,500.00
|
June
25, 2036
|
|||||
I-41-A
|
Variable(2)
|
$1,714,500.00
|
June
25, 2036
|
|||||
I-41-B
|
Variable(2)
|
$1,714,500.00
|
June
25, 2036
|
|||||
I-42-A
|
Variable(2)
|
$1,657,000.00
|
June
25, 2036
|
|||||
I-42-B
|
Variable(2)
|
$1,657,000.00
|
June
25, 2036
|
|||||
I-43-A
|
Variable(2)
|
$1,602,000.00
|
June
25, 2036
|
|||||
I-43-B
|
Variable(2)
|
$1,602,000.00
|
June
25, 2036
|
|||||
I-44-A
|
Variable(2)
|
$1,548,000.00
|
June
25, 2036
|
|||||
I-44-B
|
Variable(2)
|
$1,548,000.00
|
June
25, 2036
|
|||||
I-45-A
|
Variable(2)
|
$1,496,000.00
|
June
25, 2036
|
|||||
I-45-B
|
Variable(2)
|
$1,496,000.00
|
June
25, 2036
|
|||||
I-46-A
|
Variable(2)
|
$1,446,000.00
|
June
25, 2036
|
|||||
I-46-B
|
Variable(2)
|
$1,446,000.00
|
June
25, 2036
|
|||||
I-47-A
|
Variable(2)
|
$1,397,500.00
|
June
25, 2036
|
|||||
I-47-B
|
Variable(2)
|
$1,397,500.00
|
June
25, 2036
|
|||||
I-48-A
|
Variable(2)
|
$901,000.00
|
June
25, 2036
|
|||||
I-48-B
|
Variable(2)
|
$901,000.00
|
June
25, 2036
|
|||||
I-49-A
|
Variable(2)
|
$659,000.00
|
June
25, 2036
|
|||||
I-49-B
|
Variable(2)
|
$659,000.00
|
June
25, 2036
|
|||||
I-50-A
|
Variable(2)
|
$645,500.00
|
June
25, 2036
|
|||||
I-50-B
|
Variable(2)
|
$645,500.00
|
June
25, 2036
|
|||||
I-51-A
|
Variable(2)
|
$641,500.00
|
June
25, 2036
|
|||||
I-51-B
|
Variable(2)
|
$641,500.00
|
June
25, 2036
|
|||||
I-52-A
|
Variable(2)
|
$957,500.00
|
June
25, 2036
|
|||||
I-52-B
|
Variable(2)
|
$957,500.00
|
June
25, 2036
|
|||||
I-53-A
|
Variable(2)
|
$1,194,000.00
|
June
25, 2036
|
|||||
I-53-B
|
Variable(2)
|
$1,194,000.00
|
June
25, 2036
|
|||||
I-54-A
|
Variable(2)
|
$1,194,000.00
|
June
25, 2036
|
|||||
I-54-B
|
Variable(2)
|
$1,194,000.00
|
June
25, 2036
|
|||||
I-55-A
|
Variable(2)
|
$1,193,000.00
|
June
25, 2036
|
|||||
I-55-B
|
Variable(2)
|
$1,193,000.00
|
June
25, 2036
|
|||||
I-56-A
|
Variable(2)
|
$1,192,500.00
|
June
25, 2036
|
|||||
I-56-B
|
Variable(2)
|
$1,192,500.00
|
June
25, 2036
|
|||||
I-57-A
|
Variable(2)
|
$1,191,500.00
|
June
25, 2036
|
|||||
I-57-B
|
Variable(2)
|
$1,191,500.00
|
June
25, 2036
|
|||||
I-58-A
|
Variable(2)
|
$1,191,000.00
|
June
25, 2036
|
|||||
I-58-B
|
Variable(2)
|
$1,191,000.00
|
June
25, 2036
|
|||||
I-59-A
|
Variable(2)
|
$1,190,500.00
|
June
25, 2036
|
|||||
I-59-B
|
Variable(2)
|
$1,190,500.00
|
June
25, 2036
|
|||||
I-60-A
|
Variable(2)
|
$1,189,500.00
|
June
25, 2036
|
|||||
I-60-B
|
Variable(2)
|
$1,189,500.00
|
June
25, 2036
|
|||||
I-61-A
|
Variable(2)
|
$653,000.00
|
June
25, 2036
|
|||||
I-61-B
|
Variable(2)
|
$653,000.00
|
June
25, 2036
|
|||||
I-62-A
|
Variable(2)
|
$632,500.00
|
June
25, 2036
|
|||||
I-62-B
|
Variable(2)
|
$632,500.00
|
June
25, 2036
|
|||||
I-63-A
|
Variable(2)
|
$612,000.00
|
June
25, 2036
|
|||||
I-63-B
|
Variable(2)
|
$612,000.00
|
June
25, 2036
|
|||||
I-64-A
|
Variable(2)
|
$605,000.00
|
June
25, 2036
|
|||||
I-64-B
|
Variable(2)
|
$605,000.00
|
June
25, 2036
|
|||||
I-65-A
|
Variable(2)
|
$599,000.00
|
June
25, 2036
|
|||||
I-65-B
|
Variable(2)
|
$599,000.00
|
June
25, 2036
|
|||||
I-66-A
|
Variable(2)
|
$598,500.00
|
June
25, 2036
|
|||||
I-66-B
|
Variable(2)
|
$598,500.00
|
June
25, 2036
|
|||||
I-67-A
|
Variable(2)
|
$598,500.00
|
June
25, 2036
|
|||||
I-67-B
|
Variable(2)
|
$598,500.00
|
June
25, 2036
|
|||||
I-68-A
|
Variable(2)
|
$598,000.00
|
June
25, 2036
|
|||||
I-68-B
|
Variable(2)
|
$598,000.00
|
June
25, 2036
|
|||||
I-69-A
|
Variable(2)
|
$597,500.00
|
June
25, 2036
|
|||||
I-69-B
|
Variable(2)
|
$597,500.00
|
June
25, 2036
|
|||||
I-70-A
|
Variable(2)
|
$597,000.00
|
June
25, 2036
|
|||||
I-70-B
|
Variable(2)
|
$597,000.00
|
June
25, 2036
|
|||||
I-71-A
|
Variable(2)
|
$597,000.00
|
June
25, 2036
|
|||||
I-71-B
|
Variable(2)
|
$597,000.00
|
June
25, 2036
|
|||||
I-72-A
|
Variable(2)
|
$10,606,000.00
|
June
25, 2036
|
|||||
I-72-B
|
Variable(2)
|
$10,606,000.00
|
June
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
REMIC
II
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the REMIC I Regular Interests as a REMIC for federal income tax purposes,
and
such pool of assets will be designated as REMIC II. The Class R-II Interest
will
evidence the sole class of residual interests in REMIC II for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the REMIC II Remittance Rate, the initial Uncertificated Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
latest possible maturity date for each of the REMIC II Regular Interests (as
defined herein). None of the REMIC II Regular Interests will be
certificated.
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
LTAA
|
Variable(2)
|
$362,618,778.24
|
June
25, 2036
|
LTA
|
Variable(2)
|
$2,533,020.00
|
June
25, 2036
|
LTM1
|
Variable(2)
|
$192,420.00
|
June
25, 2036
|
LTM2
|
Variable(2)
|
$210,930.00
|
June
25, 2036
|
LTM3
|
Variable(2)
|
$90,660.00
|
June
25, 2036
|
LTM4
|
Variable(2)
|
$81,410.00
|
June
25, 2036
|
LTM5
|
Variable(2)
|
$86,960.00
|
June
25, 2036
|
LTM6
|
Variable(2)
|
$72,160.00
|
June
25, 2036
|
LTM7
|
Variable(2)
|
$61,050.00
|
June
25, 2036
|
LTM8
|
Variable(2)
|
$57,350.00
|
June
25, 2036
|
LTM9
|
Variable(2)
|
$68,460.00
|
June
25, 2036
|
LTM10
|
Variable(2)
|
$81,410.00
|
June
25, 2036
|
LTB1
|
Variable(2)
|
$49,950.00
|
June
25, 2036
|
LTB2
|
Variable(2)
|
$18,510.00
|
June
25, 2036
|
LTB3
|
Variable(2)
|
$55,500.00
|
June
25, 2036
|
LTZZ
|
Variable(2)
|
$3,740,593.23
|
June
25, 2036
|
LTP
|
Variable(2)
|
$100.00
|
June
25, 2036
|
LTIO
|
Variable(2)
|
(3)
|
June
25, 2036
|
_______________
(1) For
purposes of Treasury Regulation Section 1.860G-1(a)(4)(iii).
(2) Calculated
in accordance with the definition of REMIC II Remittance Rate
herein.
(3) REMIC
I
Regular Interest LTIO will not have a Certificate Balance, but will accrue
interest on its Uncertificated Notional Amount, as defined
herein.
REMIC
III
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the REMIC II Regular Interests as a REMIC for federal income tax purposes,
and such pool of assets will be designated as REMIC III. The Class R-III
Interest will evidence the sole class of residual interests in REMIC III for
purposes of the REMIC Provisions. The following table irrevocably sets forth
the
designation, the Pass-Through Rate, the initial aggregate Certificate Balance
and, for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii),
the latest possible maturity date for the indicated Classes of Certificates.
The
Class C Interest, the Class P Interest and the Class IO Interest shall represent
uncertificated regular interests in REMIC II.
Each
of
the Class A Certificates and Subordinated Certificates, generally represents
ownership of a regular interest in REMIC III and also represents (i) the right
to receive payments with respect to the Net WAC Cap Carry Forward Amount and
(ii) the obligation to pay the Class IO Distribution Amount (as defined herein).
The entitlement to principal of each REMIC III Regular Interest ownership of
which is represented by a regular interest which corresponds to each Certificate
shall be equal in amount and timing to the entitlement to principal of such
Certificate.
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Balance
|
Latest
Possible
Maturity
Date(1)
|
Class
A
|
Variable(2)
|
$253,302,000.00
|
June
25, 2036
|
Class
M-1
|
Variable(2)
|
$19,242,000.00
|
June
25, 2036
|
Class
M-2
|
Variable(2)
|
$21,093,000.00
|
June
25, 2036
|
Class
M-3
|
Variable(2)
|
$9,066,000.00
|
June
25, 2036
|
Class
M-4
|
Variable(2)
|
$8,141,000.00
|
June
25, 2036
|
Class
M-5
|
Variable(2)
|
$8,696,000.00
|
June
25, 2036
|
Class
M-6
|
Variable(2)
|
$7,216,000.00
|
June
25, 2036
|
Class
M-7
|
Variable(2)
|
$6,105,000.00
|
June
25, 2036
|
Class
M-8
|
Variable(2)
|
$5,735,000.00
|
June
25, 2036
|
Class
M-9
|
Variable(2)
|
$6,846,000.00
|
June
25, 2036
|
Class
M-10
|
Variable(2)
|
$8,141,000.00
|
June
25, 2036
|
Class
B-1
|
6.5000%
per annum(3)
|
$4,995,000.00
|
June
25, 2036
|
Class
B-2
|
6.5000%
per annum(3)
|
$1,851,000.00
|
June
25, 2036
|
Class
B-3
|
6.5000%
per annum(3)
|
$5,550,000.00
|
June
25, 2036
|
Class
C Interest
|
Variable(2)(4)
|
$4,040,161.47
|
June
25, 2036
|
Class
P Interest
|
(5)
|
$100.00
|
June
25, 2036
|
Class
IO Interest
|
(6)
|
(7)
|
June
25, 2036
|
________________
(1) For
purposes of Treasury Regulation Section 1.860G-1(a)(4)(iii).
(2) Calculated
in accordance with the definition of Pass-Through Rate herein.
(3) Subject
to increase and limitation as set forth in the definition of Pass-Through Rate
herein.
(4) The
Class
C Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class C Interest outstanding from time to time, which
shall equal the Uncertificated Balances of the REMIC II Regular Interests,
other
than REMIC II Regular Interest LTP. The Class C Interest will not accrue
interest on its Uncertificated Balance.
(5) The
Class
P Interest will not accrue interest.
(6) For
federal income tax purposes, the Class IO Interest will not have a Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC II
Regular Interest LTIO.
(7) For
federal income tax purposes, the Class IO Interest will not have an
Uncertificated Balance, but will have a notional amount equal to the
Uncertificated Notional Amount of REMIC II Regular Interest LTIO.
REMIC
IV
As
provided herein, the Trustee shall make an election to treat the Class C
Interest as a REMIC for federal income tax purposes, and such pool of assets
will be designated as “REMIC IV.” The Class R-IV Interest represents the sole
class of “residual interests” in REMIC IV for purposes of the REMIC
Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial Certificate Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the latest possible maturity date for
the Class C Certificates.
Designation
|
Pass-Through
Rate
|
Initial
Certificate
Balance
|
Latest
Possible
Maturity
Date(1)
|
Class
C
|
(2)
|
$4,040,161.47
|
June
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) The
Class
C Certificates will receive 100% of amounts received in respect of the Class
C
Interest.
REMIC
V
As
provided herein, the Trustee shall make an election to treat the Class P
Interest as a REMIC for federal income tax purposes, and such pool of assets
will be designated as “REMIC V.” The Class R-V Interest represents the sole
class of “residual interests” in REMIC V for purposes of the REMIC
Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial Certificate Balance and, for purposes of satisfying Treasury
Regulation Section 1.860G-1(a)(4)(iii), the latest possible maturity date for
the Class P Certificates.
Designation
|
Pass-Through
Rate
|
Initial
Certificate
Balance
|
Latest
Possible
Maturity
Date(1)
|
Class
P
|
(2)
|
$
100.00
|
June
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
VI
As
provided herein, the Trustee shall make an election to treat the pool of assets
consisting of the SWAP IO Interest as a REMIC for federal income tax purposes,
and such pool of assets shall be designated as “REMIC VI.” The Class R-VI
Interest represents the sole class of “residual interests” in REMIC VI for
purposes of the REMIC Provisions. The following table irrevocably sets forth
the
designation, the Pass-Through Rate, the initial Certificate Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
latest possible maturity date for REMIC VI Regular Interest SWAP IO, which
will
be uncertificated.
Designation
|
Pass-Through
Rate
|
Initial
Certificate
Balance
|
Latest
Possible
Maturity
Date(1)
|
SWAP
IO
|
(2)
|
N/A
|
June
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) REMIC
VI
Regular Interest SWAP IO shall receive 100% of amounts received in respect
of
the Class IO Interest.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
Book-Entry
Certificates
|
Class
A Certificates and Subordinated Certificates (other than the Fixed
Rate
Certificates).
|
Subordinated
Certificates…
|
Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7,
Class M-8, Class M-9, Class M-10, Class B-1, Class B-2 Certificates
and
Class B-3 Certificates.
|
Floating
Rate Certificates
|
Class
A and Subordinated Certificates (other than the Class B-1, Class
B-2
Certificates and Class B-3
Certificates).
|
Fixed
Rate Certificates
|
Class
B-1, Class B-2 Certificates and Class B-3
Certificates.
|
ERISA-Restricted
Certificates
|
Class
R, Class R-X, Class C and Class P; and the Certificates of any Class
that
cease to satisfy the rating requirements of the Underwriter’s
Exemption.
|
LIBOR
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
Offered
Certificates
|
All
Classes of Certificates other than the Private
Certificates.
|
Definitive
Certificates
|
Class
R, Class R-X, Class P and Class C
Certificates.
|
Private
Certificates
|
Class
B-1, Class B-2, Class B-3, Class R, Class R-X, Class P and Class
C
Certificates.
|
Rating
Agencies
|
Xxxxx’x
and S&P.
|
Regular
Certificates
|
All
Classes of Certificates other than the Class R and Class R-X
Certificates.
|
Residual
Certificates
|
Class
R and Class R-X Certificates.
|
ARTICLE
I
Definitions
Section
1.01 Definitions.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Class A Certificates and Subordinated Certificates
shall be made on the basis of the actual number of days elapsed and a 360-day
year and all calculations in respect of interest on the Class C Certificates,
Class IO Interest, REMIC I Regular Interests, REMIC II Regular Interests and
all
other calculations of interest described herein shall be made on the basis
of a
360-day year consisting of twelve 30-day months. The Class P Certificates and
the Residual Certificates are not entitled to distributions in respect of
interest and, accordingly, will not accrue interest.
60+
Day Delinquent Loan:
As of
any day during any calendar month, each Mortgage Loan in foreclosure, all REO
Property, each Mortgage Loan for which the Mortgagor has filed for bankruptcy,
and each Mortgage Loan with respect to which any portion of a Scheduled Payment
is, as of the last day of the Remittance Period before the Remittance Period
ending in such calendar month, two months or more past due (without giving
effect to any grace period). For instance, in making a determination on the
Distribution Date in December (December 25) with respect to a Mortgage Loan
whose Scheduled Payment for October is delinquent (and that has no previous
Scheduled Payment that is delinquent), that Mortgage Loan would not be a 60+
Day
Delinquent Loan because as of the last day of the Remittance Period before
the
Remittance Period ending in December (which would be the Remittance Period
ending in November (on November 1)), the Scheduled Payment for October (due
October 1) would only be one month past due.
Accrued
Certificate Interest Distribution Amount:
For any
Distribution Date and a Class of Certificates (other than the Class P, Class
R,
Class R-X and Class C Certificates), the amount of interest accrued during
the
related Interest Accrual Period at the applicable Pass-Through Rate for such
Class on the related Class Certificate Balance immediately before the
Distribution Date reduced by any Net Prepayment Interest Shortfalls and Relief
Act Interest Shortfalls for such Distribution Date allocated to such Class
pursuant to Section 4.04.
Adjusted
Mortgage Rate:
As to
each Mortgage Loan and at any time, the per annum rate equal to (x) the Mortgage
Rate less (y) the Servicing Fee Rate.
Adjusted
Net Mortgage Rate:
As to
each Mortgage Loan and at any time, the per annum rate equal to (x) the Mortgage
Rate less (y) the Expense Fee Rate.
Advance:
The
payment required to be made by the Servicer for any Distribution Date pursuant
to Section 4.01, the amount of that payment being equal to the aggregate of
payments of principal and interest (net of the Servicing Fee and any net
proceeds in the case of any REO Properties) on the Mortgage Loans that were
due
during the related Remittance Period and not received as of the close of
business on the related Determination Date, plus an amount equivalent to
interest on each REO Property less the aggregate amount of any delinquent
payments that the Servicer has determined would constitute a Nonrecoverable
Advance if advanced.
Affected
Party:
As
defined in the Swap Agreement.
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 within the requirements of
generally accepted accounting principles.
Agreement:
This
Pooling and Servicing Agreement and all amendments and supplements
hereto.
Amount
Held for Future Distribution:
For any
Distribution Date, the aggregate amount held in the Certificate Account at
the
close of business on the related Determination Date on account of (i) Principal
Prepayments received after the end of the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries on the Mortgage Loans, in each
case, received after the end of the preceding calendar month and (ii) all
Scheduled Payments on the Mortgage Loans due after the end of the related
Remittance Period.
Applied
Realized Loss Amount: For
any
Distribution Date and a Class of Subordinated Certificates, the excess of the
aggregate Class Certificate Balance of the Class A and Subordinated Certificates
over the aggregate Stated Principal Balance of all of the Mortgage Loans as
of
the last day of the preceding Remittance Period allocated to such Class pursuant
to Section 4.04.
Appraised
Value:
With
respect to any Mortgaged Property, the value thereof as determined by an
independent appraisal made at the time of the origination of the related
Mortgage Loan or the sale price, if the appraisal is not available; except
that,
with respect to any Mortgage Loan that is a purchase money mortgage loan, the
lesser of (i) the value thereof as determined by an independent appraisal made
at the time of the origination of such Mortgage Loan, if any, and (ii) the
sales
price of the related Mortgaged Property.
Available
Funds: For
any
Distribution Date,
are
the
sum
of:
(i) all
scheduled installments of interest (net of the Expense Fees) and principal
due
on the Due Date on the Mortgage Loans in the related Remittance Period and
received by the related Determination Date, together with any related
Advances;
(ii) all
Insurance Proceeds, but excluding Insurance Proceeds included in Liquidation
Proceeds, Liquidation Proceeds and Subsequent Recoveries received during the
preceding calendar month (in each case, net of unreimbursed expenses incurred
in
connection with a liquidation or foreclosure and net of the related Excess
Proceeds);
(iii) all
partial or full Principal Prepayments on the Mortgage Loans received during
the
related Prepayment Period together with all Compensating Interest on those
Mortgage Loans and interest paid by the Mortgagors (other than Prepayment
Interest Excess); and
(iv) amounts
received by the Trustee for such Distribution Date as the Substitution
Adjustment Amount or the Purchase Price of a Deleted Mortgage Loan or a Mortgage
Loan repurchased by the Seller or the Servicer as of the Distribution Date
including proceeds received with respect to the termination of the Trust Fund
pursuant to Section 9.01;
minus
(v) amounts
in reimbursement for Advances previously made and other expenses reimbursable
to
the Servicer with respect to the Mortgage Loans pursuant to this Agreement
(other than amounts included in clause (vi) below);
(vi) amounts
reimbursable or payable to the Servicer, Depositor or the Seller for such
Distribution Date pursuant to Section 6.03.
(vii) any
Net
Swap Payment or Swap Termination Payment owed to the Swap Provider (to the
extent not paid by the Supplemental Interest Trust Trustee from any upfront
payment received pursuant to any replacement interest rate swap agreement that
may be entered into by the Supplemental Interest Trust Trustee and other than
Swap Termination Payments resulting from a Swap Provider Trigger
Event).
Bankruptcy
Code:
The
United States Bankruptcy Reform Act of 1978, as amended.
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.
Certificate:
Any one
of the Certificates issued by the Trust Fund and executed by the Trustee, in
substantially the forms attached as exhibits.
Certificate
Account:
The
separate Eligible Account or Accounts created and maintained by the Servicer
pursuant to Section 3.06(d) with a depository institution in the name of the
Servicer for the benefit of the Trustee on behalf of Certificateholders and
designated “IndyMac Bank, F.S.B., in trust for the registered holders of Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS
2006-A.”
Certificate
Balance:
For any
Certificate (other than a Class R, Class R-X or a Class C Certificate) at any
date, the maximum dollar amount of principal to which the Holder of the
Certificate is then entitled, such amount being equal to the Certificate’s
Denomination plus
any
increases in the Certificate Balance of such Certificate pursuant to Section
4.04 due to the receipt of Subsequent Recoveries minus
all
distributions of principal previously made with respect thereto and, in the
case
of any Subordinated Certificate, reduced by any Applied Realized Loss Amounts
applicable to any such Subordinated Certificates. With respect to the Class
C
Certificates as of any date of determination, an amount equal to the excess,
if
any, of (A) the then aggregate Uncertificated Balance of the REMIC II Regular
Interests over (B) the then aggregate Certificate Balance of the Class A
Certificates, Subordinated Certificates and Class P Certificates then
outstanding. The Class R and Class R-X Certificates have no Certificate
Balance.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
the Book-Entry Certificate. For 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 Supplemental
Interest Trust Trustee, the Depositor and/or the 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 Seller, the Depositor
or its Affiliate shall not be eligible to vote or be considered Outstanding
and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect a consent has been obtained unless the Seller, the Depositor or its
Affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, in which case the Certificates shall be Outstanding for purposes
of any provision of this Agreement requiring the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action.
The Trustee and the Supplemental Interest Trust Trustee are entitled to rely
conclusively on a certification of the Depositor or any Affiliate of the
Depositor in determining which Certificates are registered in the name of an
Affiliate of the Depositor.
Charge-off
Amount:
On any
Distribution Date, for any Charged-Off Mortgage Loan, the Stated Principal
Balance of that Mortgage Loan that has been written down.
Charged-Off
Mortgage Loan:
A
Mortgage Loan with (i) a Stated Principal Balance that has been written down
on
the Servicer’s servicing system in accordance with its policies and procedures
and (ii) any Mortgage Loan that is more than 180 days past due.
Class:
All
Certificates bearing the same class designation, as specified in the Preliminary
Statement.
Class
A Certificates: As
specified in the Preliminary Statement.
Class
A Principal Distribution Amount:
for any
Distribution Date, the excess of (i) the Class Certificate Balance of the Class
A Certificates immediately before such Distribution Date over (ii) the lesser
of
(A) approximately 27.30% of the aggregate Stated Principal Balance of all of
the
Mortgage Loans as of the last day of the related Remittance Period (after giving
effect to principal prepayments received in the Prepayment Period related to
such Distribution Date) and (B) an amount, not less than zero, equal to the
aggregate Stated Principal Balance of all of the Mortgage Loans as of the last
day of the related Remittance Period (after giving effect to principal
prepayments received in the Prepayment Period related to such Distribution
Date)
minus the product of 0.50% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date.
Class B-1
Principal Distribution Amount:
For any
Distribution Date is the excess of (i) the sum of (A) the Class Certificate
Balance of the Class A Certificates (after taking into account distribution
of the Class A Principal Distribution Amount for that Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution
Amount for that Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account distribution of the
Class M-2 Principal Distribution Amount for that Distribution Date), (D)
the Class Certificate Balance of the Class M-3 Certificates (after taking
into account distribution of the Class M-3 Principal Distribution Amount
for that Distribution Date), (E) the Class Certificate Balance of the
Class M-4 Certificates (after taking into account distribution of the
Class M-4 Principal Distribution Amount for that Distribution Date), (F)
the Class Certificate Balance of the Class M-5 Certificates (after taking
into account distribution of the Class M-5 Principal Distribution Amount
for that Distribution Date), (G) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account distribution of the
Class M-6 Principal Distribution Amount for that Distribution Date), (H)
the Class Certificate Balance of the Class M-7 Certificates (after taking
into account distribution of the Class M-7 Principal Distribution Amount
for that Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account distribution of the
Class M-8 Principal Distribution Amount for that Distribution Date), (J)
the Class Certificate Balance of the M-9 Certificates (after taking into account
distribution of the Class M-9 Principal Distribution Amount for that
Distribution Date), (K) the Class Certificate Balance of the M-10 Certificates
(after taking into account distribution of the Class M-10 Principal
Distribution Amount for that Distribution Date) and (L) the Class Certificate
Balance of the B-1 Certificates immediately before that Distribution Date over
(ii) the lesser of (A) approximately 84.20% of the aggregate Stated Principal
Balance of all of the Mortgage Loans as of the last day of the Remittance Period
(after giving effect to principal prepayments received in the Prepayment Period
related to that Distribution Date) and (B) an amount, not less than zero, equal
to the aggregate Stated Principal Balance of all of the Mortgage Loans as of
the
last day of the Remittance Period (after giving effect to principal prepayments
received in the Prepayment Period related to that Distribution Date) minus
the
product of 0.50% of the aggregate Stated Principal Balance of the Mortgage
Loans
as of the Cut-off Date.
Class B-2
Principal Distribution Amount:
For any
Distribution
Date
is the
excess of (i) the sum of (A) the Class Certificate Balance of the Class A
Certificates (after taking into account distribution of the Class A
Principal Distribution Amount for that Distribution Date), (B) the Class
Certificate Balance of the Class M-1 Certificates (after taking into
account distribution of the Class M-1 Principal Distribution Amount for
that Distribution Date), (C) the Class Certificate Balance of the Class M-2
Certificates (after taking into account distribution of the Class M-2
Principal Distribution Amount for that Distribution Date), (D) the Class
Certificate Balance of the Class M-3 Certificates (after taking into
account distribution of the Class M-3 Principal Distribution Amount for
that Distribution Date), (E) the Class Certificate Balance of the Class M-4
Certificates (after taking into account distribution of the Class M-4
Principal Distribution Amount for that Distribution Date), (F) the Class
Certificate Balance of the Class M-5 Certificates (after taking into
account distribution of the Class M-5 Principal Distribution Amount for
that Distribution Date), (G) the Class Certificate Balance of the Class M-6
Certificates (after taking into account distribution of the Class M-6
Principal Distribution Amount for that Distribution Date), (H) the Class
Certificate Balance of the Class M-7 Certificates (after taking into
account distribution of the Class M-7 Principal Distribution Amount for
that Distribution Date), (I) the Class Certificate Balance of the Class M-8
Certificates (after taking into account distribution of the Class M-8
Principal Distribution Amount for that Distribution Date), (J) the Class
Certificate Balance of the M-9 Certificates (after taking into account
distribution of the Class M-10 Principal Distribution Amount for that
Distribution Date), (K) the Class Certificate Balance of the M-10 Certificates
(after taking into account distribution of the Class M-10 Principal
Distribution Amount for that Distribution Date) (L) the Class Certificate
Balance of the B-1 Certificates (after taking into account distribution of
the
Class M-10 Principal Distribution Amount for that Distribution Date) and
(M) the Class Certificate Balance of the B-2 Certificates immediately before
that Distribution Date over (ii) the lesser of (A) approximately 85.20% of
the
aggregate Stated Principal Balance of all of the Mortgage Loans as of the last
day of the Remittance Period (after giving effect to principal prepayments
received in the Prepayment Period related to that Distribution Date) and (B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the Remittance Period (after
giving effect to principal prepayments received in the Prepayment Period related
to that Distribution Date) minus the product of 0.50% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
Class B-3
Principal Distribution Amount:
For any
Distribution Date is the excess of (i) the sum of (A) the Class Certificate
Balance of the Class A Certificates (after taking into account distribution
of the Class A Principal Distribution Amount for that Distribution Date),
(B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution
Amount for that Distribution Date), (C) the Class Certificate Balance of the
Class M-2 Certificates (after taking into account distribution of the
Class M-2 Principal Distribution Amount for that Distribution Date), (D)
the Class Certificate Balance of the Class M-3 Certificates (after taking
into account distribution of the Class M-3 Principal Distribution Amount
for that Distribution Date), (E) the Class Certificate Balance of the
Class M-4 Certificates (after taking into account distribution of the
Class M-4 Principal Distribution Amount for that Distribution Date), (F)
the Class Certificate Balance of the Class M-5 Certificates (after taking
into account distribution of the Class M-5 Principal Distribution Amount
for that Distribution Date), (G) the Class Certificate Balance of the
Class M-6 Certificates (after taking into account distribution of the
Class M-6 Principal Distribution Amount for that Distribution Date), (H)
the Class Certificate Balance of the Class M-7 Certificates (after taking
into account distribution of the Class M-7 Principal Distribution Amount
for that Distribution Date), (I) the Class Certificate Balance of the
Class M-8 Certificates (after taking into account distribution of the
Class M-8 Principal Distribution Amount for that Distribution Date), (J)
the Class Certificate Balance of the M-9 Certificates (after taking into account
distribution of the Class M-10 Principal Distribution Amount for that
Distribution Date), (K) the Class Certificate Balance of the M-10 Certificates
(after taking into account distribution of the Class M-10 Principal
Distribution Amount for that Distribution Date) (L) the Class Certificate
Balance of the B-1 Certificates (after taking into account distribution of
the
Class M-10 Principal Distribution Amount for that Distribution Date), (M)
the Class Certificate Balance of the B-2 Certificates (after taking into account
distribution of the Class M-10 Principal Distribution Amount for that
Distribution Date) and (N) the Class Certificate Balance of the B-3 Certificates
immediately before that Distribution Date over (ii) the lesser of (A)
approximately 88.20% of the aggregate Stated Principal Balance of all of the
Mortgage Loans as of the last day of the Remittance Period (after giving effect
to principal prepayments received in the Prepayment Period related to that
Distribution Date) and (B) an amount, not less than zero, equal to the aggregate
Stated Principal Balance of all of the Mortgage Loans as of the last day of
the
Remittance Period (after giving effect to principal prepayments received in
the
Prepayment Period related to that Distribution Date) minus the product of 0.50%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date.
Class
Certificate Balance:
For any
Class as of any date of determination, the aggregate of the Certificate Balances
of all Certificates of such Class as of that date.
Class
C Certificates:
Any one
of the Class C Certificates executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, representing the right to distributions
as set forth herein and therein and evidencing a regular interest in REMIC
IV.
Class
C Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class C Certificates, evidencing (i) a REMIC Regular Interest
in
REMIC III and (ii) beneficial ownership of the Excess Reserve Fund
Account.
Class
C Distributable Amount:
On any
Distribution Date, the amount that has accrued on the Class C Certificates
but
that has not been distributed on the Class C Certificates on prior Distribution
Dates.
Class
IO Distribution Amount:
As
defined in Section 4.05 hereof. For purposes of clarity, the Class IO
Distribution Amount for any Distribution Date shall equal the amount payable
to
the Supplemental Interest Trust on such Distribution Date in excess of the
amount payable on the Class IO Interest on such Distribution Date, all as
further provided in Section 4.05 hereof.
Class
IO Interest:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
REMIC Regular Interest in REMIC III for purposes of the REMIC
Provisions.
Class
M Certificate:
Any of
the Subordinated Certificates (other than the Class B-1, Class B-2 and Class
B-3
Certificates).
Class
M-1 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date) and
(B)
the
Class Certificate Balance of the Class M-1 Certificates immediately before
such
Distribution Date over
(ii)
the
lesser
of (A)
37.70% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date;
provided,
that if on any Distribution Date, the Class M-1 Certificates are the only Class
of Subordinated Certificates outstanding, the Class M-1 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-2 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date) and
(C) the
Class
Certificate Balance of the Class M-2 Certificates immediately before such
Distribution Date over
(ii)
the
lesser
of (A) 49.10%
of
the aggregate Stated Principal Balance of all of the Mortgage Loans as of the
last day of the related Remittance Period (after giving effect to Principal
Prepayments received in the Prepayment Period relating to such Distribution
Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-2 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-2 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-3 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date) and
(D)
the
Class Certificate Balance of the Class M-3 Certificates immediately before
such
Distribution Date over
(ii)
the
lesser
of (A)
54.00% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-3 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-3 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-4 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D)the Class Certificate Balance
of the Class M-3 Certificates (after taking into account distribution of the
Class M-3 Principal Distribution Amount on such Distribution Date) and
(E)
the
Class Certificate Balance of the Class M-4 Certificates immediately before
such
Distribution Date over
(ii) the
lesser
of (A)
58.40% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B) an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-4 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-4 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-5 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the
Class
Certificate Balance of the Class M-1 Certificates (after taking into account
distribution of the Class M-1 Principal Distribution Amount on such Distribution
Date), (C) the Class Certificate Balance of the Class M-2 Certificates (after
taking into account distribution of the Class M-2 Principal Distribution Amount
on such Distribution Date), (D) the Class Certificate Balance of the Class
M-3
Certificates (after taking into account distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (E) the Class Certificate
Balance of the Class M-4 Certificates (after taking into account distribution
of
the Class M-4 Principal Distribution Amount on such Distribution Date)
and
(F)
the
Class Certificate Balance of the Class M-5 Certificates immediately before
such
Distribution Date over
(ii)
the
lesser
of (A)
63.10% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-5 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-5 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-6 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account distribution
of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E)
the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account distribution of the Class M-4 Principal Distribution Amount on such
Distribution Date), (F) the Class Certificate Balance of the Class M-5
Certificates (after taking into account distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and
(G)
the
Class Certificate Balance of the Class M-6 Certificates immediately before
such
Distribution Date over
(ii)
the
lesser
of (A)
67.00% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-6 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-6 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-7 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account distribution
of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E)
the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account distribution of the Class M-4 Principal Distribution Amount on such
Distribution Date), (F) the
Class
Certificate Balance of the Class M-5 Certificates (after taking into account
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account distribution of the Class M-6 Principal Distribution Amount
on such Distribution Date) and
(H) the
Class
Certificate Balance of the Class M-7 Certificates immediately before such
Distribution Date over
(ii)
the
lesser
of (A)
70.30% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-7 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-7 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-8 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account distribution
of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E)
the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account distribution of the Class M-4 Principal Distribution Amount on such
Distribution Date), (F) the
Class
Certificate Balance of the Class M-5 Certificates (after taking into account
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account distribution of the Class M-6 Principal Distribution Amount
on such Distribution Date), (H) the Class Certificate Balance of the Class
M-7
Certificates (after taking into account distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and
(I)
the
Class Certificate Balance of the Class M-8 Certificates immediately before
such
Distribution Date over
(ii)
the
lesser
of (A)
73.40% of the aggregate Stated Principal Balance of all of the Mortgage Loans
as
of the last day of the related Remittance Period (after giving effect to
Principal Prepayments received in the Prepayment Period relating to such
Distribution Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-8 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-8 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-9 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account distribution
of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E)
the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account distribution of the Class M-4 Principal Distribution Amount on such
Distribution Date), (F) the
Class
Certificate Balance of the Class M-5 Certificates (after taking into account
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account distribution of the Class M-6 Principal Distribution Amount
on such Distribution Date), (H) the Class Certificate Balance of the Class
M-7
Certificates (after taking into account distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (I) the Class Certificate
Balance of the Class M-8 Certificates (after taking into account distribution
of
the Class M-8 Principal Distribution Amount on such Distribution Date)
and
(J)
the
Class Certificate Balance of the Class M-9 Certificates immediately before
such
Distribution Date over
(ii)
the
lesser
of (A) 77.10%
of
the aggregate Stated Principal Balance of all of the Mortgage Loans as of the
last day of the related Remittance Period (after giving effect to Principal
Prepayments received in the Prepayment Period relating to such Distribution
Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-9 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-9 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
M-10 Principal Distribution Amount:
For any
Distribution Date, the excess of (i) the sum of (A) the aggregate Class
Certificate Balance of the Class A Certificates (after taking into account
distribution of the Class A Principal Distribution Amount on such Distribution
Date), (B) the Class Certificate Balance of the Class M-1 Certificates (after
taking into account distribution of the Class M-1 Principal Distribution Amount
on such Distribution Date), (C) the Class Certificate Balance of the Class
M-2
Certificates (after taking into account distribution of the Class M-2 Principal
Distribution Amount on such Distribution Date), (D) the Class Certificate
Balance of the Class M-3 Certificates (after taking into account distribution
of
the Class M-3 Principal Distribution Amount on such Distribution Date), (E)
the
Class Certificate Balance of the Class M-4 Certificates (after taking into
account distribution of the Class M-4 Principal Distribution Amount on such
Distribution Date), (F) the
Class
Certificate Balance of the Class M-5 Certificates (after taking into account
distribution of the Class M-5 Principal Distribution Amount on such Distribution
Date), (G) the Class Certificate Balance of the Class M-6 Certificates (after
taking into account distribution of the Class M-6 Principal Distribution Amount
on such Distribution Date), (H) the Class Certificate Balance of the Class
M-7
Certificates (after taking into account distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (I) the Class Certificate
Balance of the Class M-8 Certificates (after taking into account distribution
of
the Class M-8 Principal Distribution Amount on such Distribution Date), (J)
the
Class Certificate Balance of the Class M-9 Certificates (after taking into
account distribution of the Class M-9 Principal Distribution Amount on such
Distribution Date) and (K) the Class Certificate Balance of the Class M-10
Certificates immediately before such Distribution Date
over
(ii)
the
lesser
of (A) 81.50%
of
the aggregate Stated Principal Balance of all of the Mortgage Loans as of the
last day of the related Remittance Period (after giving effect to Principal
Prepayments received in the Prepayment Period relating to such Distribution
Date) and
(B)
an
amount, not less than zero, equal to the aggregate Stated Principal Balance
of
all of the Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to Principal Prepayments received in the Prepayment Period
relating to such Distribution Date) minus
0.50% of
the aggregate Stated Principal Balance as of the Cut-off Date; provided, that
if
on any Distribution Date, the Class M-10 Certificates are the only Class of
Subordinated Certificates outstanding, the Class M-10 Principal Distribution
Amount shall equal the lesser of the Class Certificate Balance of such Class
immediately prior to such Distribution Date and the Principal Distribution
Amount for such Distribution Date.
Class
P Certificate:
Any one
of the Class P Certificates executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, representing the right to distributions
as set forth herein and therein and evidencing a regular interest in REMIC
V.
Class
P Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class P Certificates, evidencing a Regular Interest in REMIC
III
for purposes of the REMIC Provisions.
Class
R Certificate:
A
certificate representing the beneficial ownership of the Class R-I Interest,
Class R-II Interest and Class R-III Interest.
Class
R-I Interest:
The
uncertificated residual interest in REMIC I.
Class
R-II Interest:
The
uncertificated residual interest in REMIC II.
Class
R-III Interest:
The
uncertificated residual interest in REMIC III.
Class
R-IV Interest:
The
uncertificated residual interest in REMIC IV.
Class
R-V Interest:
The
uncertificated Residual Interest in REMIC V.
Class
R-VI Interest:
The
uncertificated Residual Interest in REMIC VI.
Class
R-X Certificate:
The
Class R-X Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrar, evidencing the ownership of the Class R-IV
Interest, the Class R-V Interest and the Class R-VI Interest.
Closing
Date:
May 22,
2006.
Closing
Date Mortgage Loan: Each
Mortgage Loan sold and assigned by the Seller to the Trust Fund on the Closing
Date.
Code:
The
United States Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collateral
Value:
For any
Mortgage Loan, the Collateral Value of the related Mortgaged Property shall
be,
other than for Refinance Loans, the lesser
of
(i) the
appraised value determined in an appraisal obtained by the originator at
origination of the Mortgage Loan and
(ii) the
sales price for the related Mortgaged Property. In the case of a Refinance
Loan,
the Collateral Value of the related Mortgaged Property is its appraised value
determined in an appraisal obtained at the time of refinancing.
Collection
Account:
The
separate Eligible Account or Accounts created and maintained by the Servicer
pursuant to Section 3.06(c) with a depository institution in the name of the
Servicer for the benefit of the Trustee on behalf of the Certificateholders
and
designated “IndyMac Bank, F.S.B., in trust for the registered holders of Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS
0000-X.”
Xxxxxxxxxx.
Xxx
Xxxxxx Xxxxxx Securities and Exchange Commission.
Compensating
Interest:
For any
Distribution Date, the lesser
of
(i) any
Prepayment Interest Shortfalls with respect to such Distribution Date
and
(ii)
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 Remittance
Period.
Corporate
Trust Office:
The
designated office of the Trustee and the Supplemental Interest Trust 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: Corporate Trust Administration IN060A
(IndyMac MBS, Inc., Home Equity Mortgage Loan Asset-Backed Trust, Series INDS
2006-A), facsimile no. (000) 000-0000 and which is the address to which notices
to and correspondence with the Trustee or the Supplemental Interest Trust
Trustee should be directed.
Corresponding
Certificate: With
respect to each REMIC II Regular Interest, as follows:
REMIC
II Regular Interest
|
Class
|
REMIC
II Regular Interest LTA
|
A
|
REMIC
II Regular Interest LTM1
|
M-1
|
REMIC
II Regular Interest LTM2
|
M-2
|
REMIC
II Regular Interest LTM3
|
M-3
|
REMIC
II Regular Interest LTM4
|
M-4
|
REMIC
II Regular Interest LTM5
|
M-5
|
REMIC
II Regular Interest LTM6
|
M-6
|
REMIC
II Regular Interest LTM7
|
M-7
|
REMIC
II Regular Interest LTM8
|
M-8
|
REMIC
II Regular Interest LTM9
|
M-9
|
REMIC
II Regular Interest LTM10
|
M-10
|
REMIC
II Regular Interest LTB1
|
B-1
|
REMIC
II Regular Interest LTB2
|
B-2
|
REMIC
II Regular Interest LTB3
|
B-3
|
REMIC
II Regular Interest LTP
|
P
|
Credit
Enhancement Percentage:
For any
Distribution Date and any Class of Class A or Subordinated Certificates, the
percentage obtained by dividing (x) the sum
of
(i) the
aggregate Class Certificate Balances of all Classes of Certificates subordinated
to such Class and (ii) the Overcollateralization Amount (in each case taking
into account the distributions of the Principal Distribution Amount for such
Distribution Date) by (y) the aggregate Stated Principal Balance of the Mortgage
Loans as of the last day of the related Remittance Period.
Cumulative
Net Loss Trigger Event:
With
respect to any Distribution Date on or after the Stepdown Date, if the
percentage obtained by dividing (x) the aggregate amount of Realized Losses
incurred from the Cut-off Date through the last day of the related Remittance
Period (reduced by the aggregate amount of Subsequent Recoveries received
through the last day of that Remittance Period) by (y) the aggregate Cut-off
Date Principal Balance of the Mortgage Loans (a) 2.60% for the first month,
plus
an additional 1/12th
of 3.20%
for each month thereafter, from June 2008 through May 2009; (b) 5.80% for the
first month, plus an additional 1/12th
of 3.20%
for each month thereafter, from June 2009 through May 2010; (c) 9.00% for the
first month, plus an additional 1/12th
of 2.60%
for each month thereafter, from June 2010 through May 2011; (d) 11.60% for
the
first month, plus an additional 1/12th
of 1.25%
for each month thereafter, from June 2011 to May 2012; and (e) 12.85%, from
June
2012 and each month thereafter.
Cut-off
Date:
May 1,
2006.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, its Stated Principal Balance as of the close of business
on
the related Cut-off Date without giving effect to Principal Prepayments received
after such 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, but not including a reduction (i) resulting
from a Deficient Valuation or (ii) that results in a permanent forgiveness
of
principal.
Defaulting
Party:
As
defined in the Swap Agreement.
Deficient
Valuation:
For any
Mortgage Loan, a valuation by a court of competent jurisdiction of the related
Mortgaged Property in an amount less than the then outstanding indebtedness
under such 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:
As
specified in the Preliminary Statement..
Delayed
Delivery Certification:
A
certification substantially in the form of Exhibit G-2.
Delayed
Delivery Mortgage Loans:
The
Closing Date Mortgage Loans identified on the Mortgage Loan Schedule, for which
neither a related Mortgage File nor the Mortgage Note (or 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:
(A) for
at
least 70% of the Closing Date Mortgage Loans, not later than the Closing Date;
and
(B) for
the
remaining 30% of the Closing Date Mortgage, not later than five (5) Business
Days following the Closing Date.
To
the
extent that the Seller is in possession of any Mortgage File for any Delayed
Delivery Mortgage Loan, until delivery of the Mortgage File to the Trustee
as
provided in Section 2.01, the Seller shall hold the files as Servicer, as agent
and in trust for the Trustee.
Deleted
Mortgage Loan:
As
defined in Section 2.03(c).
Denomination:
For
each Certificate, the amount appearing on the face of the Certificate as the
“Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face of the Certificate.
Depositor:
IndyMac
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 Uniform Commercial Code of the State of New
York.
Depository
Participant:
A
broker, dealer, bank, or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Determination
Date:
As to
any Distribution Date, the 18th
day of
each month or, if that day is not a Business Day, the next Business Day, except
that if the next Business Day is less than two (2) 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(f) 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 Home Equity Mortgage Loan Asset-Backed
Certificates, Series INDS 2006-A.” Funds in the Distribution Account shall be
held in trust for the Certificateholders for the uses and purposes set forth
in
this Agreement.
Distribution
Account Deposit Date:
As to
any Distribution Date, 12:30 p.m. (Pacific time) on the Business Day preceding
the Distribution Date.
Distribution
Date:
The
25th
day of
each calendar month after the initial issuance of the Certificates, or if that
day is not a Business Day, the next Business Day, commencing in June
2006.
Due
Date:
For any
Mortgage Loan and Distribution Date, the first day of the month in which the
Distribution Date occurs.
Eligible
Account:
Any
of:
(i)
an
account or accounts maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the debt obligations of such holding
company) have the highest short-term ratings of Moody's or Fitch and one of
the
two highest short-term ratings of S&P, if S&P is a Rating Agency at the
time any amounts are held on deposit therein;
(ii)
an
account or accounts in a depository institution or trust company in which such
accounts are insured by the FDIC (to the limits established by the FDIC) and
the
uninsured deposits in which accounts are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in such
account or a perfected first priority security interest against any collateral
(which shall be limited to Permitted Investments) securing such funds that
is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained;
(iii)
a
trust account or accounts maintained with (a) the trust department of a federal
or state chartered depository institution or (b) a trust company, acting in
its
fiduciary capacity; or
(iv)
any
other account acceptable to each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
Escrow
Account:
The
Eligible Account or Accounts established and maintained pursuant to Section
3.07(a).
Event
of Default:
As
defined in Section 7.01.
Excess
Overcollateralization Amount:
For any
Distribution Date, the excess,
if any, of
(a) the
Overcollateralization Amount on such Distribution Date over
(b) the
Overcollateralization Target Amount for such Distribution 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 Servicer as Nonrecoverable Advances with respect
to
the Mortgage Loan pursuant to Section 3.09(a)(ii), over
(b) the
sum
of
(i) the
unpaid principal balance of the Liquidated Mortgage Loan as of the Due Date
in
the month in which the Mortgage Loan became a Liquidated Mortgage Loan
plus
(ii)
accrued interest at the Mortgage Rate from the Due Date for which interest
was
last paid or advanced (and not reimbursed) to Certificateholders up to the
Due
Date applicable to the Distribution Date following the calendar month during
which the liquidation occurred.
Excess
Reserve Fund Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 3.06(d) 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 Home Equity Mortgage Loan Asset-Backed Trust,
Series INDS 2006-A.” Funds in the Excess Reserve Fund Account shall be held in
trust for the Certificateholders for the uses and purposes set forth in this
Agreement. The Excess Reserve Fund Account will not be an asset of any
REMIC.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Expense
Adjusted Net Mortgage Rate: For
any
Distribution Date and a Mortgage Loan, the per annum rate equal to the Mortgage
Rate of that Mortgage Loan as of the first day of the month preceding the month
in which that Distribution Date occurs minus the Expense Fee Rate.
Expense
Adjusted Net Maximum Mortgage Rate:
For any
Distribution Date and a Mortgage Loan, the per annum rate equal to the Maximum
Mortgage Rate of that Mortgage Loan as of the first day of the month preceding
the month in which that Distribution Date occurs minus the Expense Fee
Rate.
Expense
Fees:
As to
each Mortgage Loan, the sum
of
the
Servicing Fee and Trustee Fee for such Mortgage Loan.
Expense
Fee Rate:
The
sum
of
the
Servicing Fee Rate and the Trustee Fee Rate.
Extra
Principal Distribution Amount:
As of
any Distribution Date, the sum of (i) the lesser
of (x)
the
Total Monthly Excess Spread for such Distribution Date and (y) the
Overcollateralization Deficiency for such Distribution Date and (ii) the amount
received from the Supplemental Interest Trust pursuant to Section
4.05(c)(3).
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.
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.
Highest
Priority:
For any
date of determination, the Class of Subordinated Certificates then outstanding
with a Certificate Principal Balance greater than zero, with the highest
priority for payments pursuant to Section 4.01.
Indenture:
The
indenture, or document of similar import, if any, pursuant to which any NIM
Notes are issued.
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.
Insurance
Policy:
For any
Mortgage Loan included in the Trust Fund, any insurance policy, including all
its riders and endorsements in effect, including any replacement policy or
policies for any Insurance Policies.
Insurance
Proceeds:
Proceeds paid by an insurer pursuant to any Insurance Policy, in each case
other
than any amount included in such Insurance Proceeds in respect of Insured
Expenses or released to the Mortgagor.
Insured
Expenses:
Expenses covered by an Insurance Policy, or any other insurance policy with
respect to the Mortgage Loans.
Interest
Accrual Period:
With
respect to each Class of Floating Rate Certificates and each Distribution Date,
the period commencing on the preceding Distribution Date (or in the case of
the
first such Interest Accrual Period, commencing on the Closing Date) and ending
on the day preceding such Distribution Date. With respect to the Fixed Rate
Certificates, Class C Certificates and REMIC VI Regular Interest SWAP IO and
each Distribution Date, the calendar month prior to the month of such
Distribution Date.
Lender
PMI Loan:
Any
Mortgage Loan with respect to which the related lender rather than the related
borrower acquired primary mortgage guaranty insurance and charged the related
borrower an interest premium.
LIBOR:
For any
Interest Accrual Period for the LIBOR Certificates, the rate determined by
the
Trustee on the related LIBOR Determination Date on the basis of the offered
rate
for one-month U.S. dollar deposits that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on that
date. If the
rate
does not appear on Telerate Page 3750, the rate for that
date
will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are
offered by the Reference Banks at approximately 11:00 a.m. (London time) on
that
date
to prime
banks in the London interbank market. In that case, the Trustee will request
the
principal London office of each of the Reference Banks to provide a quotation
of
its rate. If at least two quotations are so provided, the rate for that date
will be the arithmetic mean of the quotations (rounded upwards if necessary
to
the nearest whole multiple of 1/16%). If fewer than two quotations are provided
as requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Servicer, at
approximately 11:00 a.m. (New York City time) on that
date
for
one-month U.S. dollar loans to leading European banks.
LIBOR
Certificates:
As
specified in the Preliminary Statement.
LIBOR
Determination Date: For
any
Interest Accrual Period for the LIBOR Certificates, the second London Business
Day preceding the commencement of the Interest Accrual Period.
Liquidated
Mortgage Loan:
For any
Distribution Date, a defaulted Mortgage Loan (including any REO Property) that
was liquidated in the calendar month preceding the month of the Distribution
Date and as to which the 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-to-Value
Ratio:
For any
Mortgage Loan and as of any date of determination, the fraction whose numerator
is the principal balance of the related Mortgage Loan at that
date
of
determination and whose denominator is the Collateral Value of the related
Mortgaged Property.
London
Business Day: Any
day
on which dealings in deposits of United States dollars are transacted in the
London interbank market.
Lost
Mortgage Note:
Any
Mortgage Note the original of which was permanently lost or destroyed and has
not been replaced.
Majority
in Interest:
As to
any Class of Regular Certificates, the Holders of Certificates of such Class
evidencing, in the aggregate, at least 51% of the Percentage Interests evidenced
by all Certificates of such Class.
Marker
Rate: With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the REMIC II Remittance Rates
for
each REMIC II Regular Interest (other than REMIC II Regular Interest LTAA,
LTIO
and LTP) subject to a cap (for each such REMIC II Regular Interest other than
REMIC II Regular Interest LTZZ) equal to the REMIC II Remittance Rate for the
REMIC II Regular Interest the ownership of which is represented by the
Corresponding Certificate for the purpose of this calculation; with the rate
on
REMIC II Regular Interest LTZZ subject to a cap of zero for the purpose of
this
calculation; provided, however, that solely for this purpose, calculations
of
the REMIC II Remittance Rate and the related caps with respect to each such
REMIC II Regular Interest, other than REMIC II Regular Interest LTZZ, shall
be
multiplied by a fraction, the numerator of which is the actual number of days
in
the Interest Accrual Period and the denominator of which is 30.
Maximum
Mortgage Rate:
As to
each fixed-rate Mortgage Loan, the related Mortgage Rate.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS® System.
MERS®
System:
The
system of recording transfers of mortgages electronically that is maintained
by
MERS.
MIN:
The
mortgage identification number for any MERS Mortgage Loan.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Statement:
The
statement prepared by the Trustee pursuant to Section 4.03.
Moody’s:
Xxxxx’x
Investors Service, Inc., or its successors in interest. If Xxxxx’x is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Moody’s shall be Xxxxx’x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Loan
Monitoring Group, or any other address that Moody’s furnishes to the Depositor
and the Servicer.
Mortgage:
The
mortgage, deed of trust, or other instrument creating a first lien on an estate
in fee simple or leasehold interest in real property securing a Mortgage
Note.
Mortgage
File:
The
mortgage documents listed in Section 2.01 pertaining to a particular Mortgage
Loan and any additional documents delivered to the Trustee to be added to the
Mortgage File pursuant to this Agreement.
Mortgage
Loans:
Such of
the Closing Date 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 of Mortgage Loans in Schedule I included in the Trust Fund
on
such
date.
The
Mortgage Loan Schedule shall be prepared by the Seller and shall contain the
following information with respect to each Mortgage Loan:
(i)
|
the
loan number;
|
|
(ii)
|
the
Mortgagor’s zip code;
|
|
(iii)
|
the
maturity date;
|
|
(iv)
|
the
original principal balance;
|
|
(v)
|
the
Cut-off Date Principal Balance or Subsequent Cut-off Date Principal
Balance, as applicable;
|
|
(vi)
|
the
first payment date of the Mortgage Loan;
|
|
(vii)
|
the
Scheduled Payment in effect as of the applicable Cut-off
Date;
|
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
|
(ix)
|
a
code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
|
|
(x)
|
a
code indicating whether the residential dwelling is either (a) a
detached
single family dwelling, (b) a townhouse, (c) a dwelling in a PUD,
(d) a
condominium unit or (e) a two- to four-unit residential
property;
|
|
(xi)
|
the
Mortgage Rate in effect immediately following: (a) the applicable
date of
origination and (b) the applicable Cut-off Date;
|
|
(xii)
|
the
purpose for the Mortgage Loan;
|
|
(xiii)
|
the
type of documentation program pursuant to which the Mortgage Loan
was
originated;
|
|
(xiv)
|
a
code indicating whether the Mortgage Loan is a borrower-paid mortgage
insurance loan;:
|
|
(xv)
|
a
code indicating whether the Mortgage Loan is a borrower-paid mortgage
insurance loan;
|
|
(xvi)
|
a
code indicating whether the Mortgage Loan is a Lender PMI
Loan;
|
|
(xvii)
|
the
coverage amount of any mortgage insurance;
|
|
(xviii)
|
with
respect to the Lender PMI Loans, the related interest
premium;
|
|
(xix)
|
a
code indicating whether the Mortgage Loan is a Delayed Delivery Mortgage
Loan;
|
|
(xx)
|
a
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
and
|
|
(xxi)
|
A
code indicating the term, if any, of a Prepayment
Charge.
|
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 minus
any
interest premium if the applicable Mortgage Note relates to a Lender PMI Loan,
if any.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan.
Mortgagor:
The
obligors on a Mortgage Note.
Net
Prepayment Interest Shortfall:
For any
Distribution Date, the excess
of
the
Prepayment Interest Shortfalls for such Distribution Date over
the
Compensating Interest for such Distribution Date.
Net
Swap Payment:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Swap Agreement by either the Swap Provider or the
Supplemental Interest Trust, which net payment shall not take into account
any
Swap Termination Payment.
Net
WAC Cap:
For any
Distribution Date, will be the per annum rate (which rate, in the case of the
Floating Rate Certificates, will be multiplied by a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days elapsed
in
the related Interest Accrual Period) equal to (x) the weighted average of
the Expense Adjusted Net Mortgage Rates of the Mortgage Loans for such
Distribution Date (weighted based on the Stated Principal Balances of the
Mortgage Loans as of the first day of the related Remittance Period, adjusted,
except in the case of the first Distribution Date, to reflect unscheduled
principal payments made during the Prepayment Period that includes such first
day, minus (y) a fraction, expressed as a percentage, (i) the numerator of
which
is equal to the product of twelve multiplied by any Net Swap Payment or any
Swap
Termination Payment (to the extent not paid by the Supplemental Interest Trust
Trustee from any upfront payment received pursuant to any replacement Interest
Rate Swap Agreement that may be entered into by the Supplemental Interest Trust
Trustee and only if such Swap Termination Payment was not due to an event of
default or certain termination events with respect to the Swap Provider) made
to
the Swap Provider, if any, and (ii) the denominator of which is equal to the
aggregate Stated Principal Balance of the Mortgage Loans as of the first day
of
the related Remittance Period, adjusted, except in the case of the first
Distribution Date, to reflect unscheduled principal payments made during the
Prepayment Period that includes such first day.
Net
WAC Cap Carry Forward Amount:
For any
Class of Certificates and any Distribution Date, an amount equal to the
aggregate amount of Net WAC Shortfall for such Class on such Distribution Date
(to the extent not covered by payments from the Excess Reserve Fund Account
or
the Supplemental Interest Trust), plus any unpaid Net WAC Cap Carry Forward
Amount for such Class from prior Distribution Dates (and interest accrued
thereon at the then applicable Pass-Through Rate on that Class of Certificates,
without giving effect to the Net WAC Cap).
Net
WAC Shortfall:
For any
Class of Certificates and any Distribution Date on which the Pass-Through Rate
for such Class is the Net WAC Cap, an amount equal to excess of (x) the amount
of interest such Class of Certificates would have accrued for such Distribution
Date had such Pass-Through Rate not been limited by the Net WAC Cap over
(y) the
amount of interest such Class of Certificates accrued for such Distribution
Date
at the Net WAC Cap.
NIM
Notes:
Net
interest margin securities, if any, which are secured by the cash flow on the
Class C and/or Class P Certificates.
Nonrecoverable
Advance:
Any
portion of an Advance previously made or proposed to be made by the Servicer,
that, in the good faith judgment of the Servicer, will not be ultimately
recoverable by the Servicer from the related Mortgagor or related Liquidation
Proceeds or otherwise from collections related to the Mortgage
Loan.
Notice
of Final Distribution:
The
notice to be provided pursuant to Section 9.02, to the effect that final
distribution on any of the Certificates shall be made only on its presentation
and surrender.
Notional
Amount:
With
respect to the Class C Interest and any Distribution Date, the aggregate
Uncertificated Balance of the REMIC II Regular Interests (other than REMIC
II
Regular Interest LTP) immediately prior to Distribution Date.
Offered
Certificates:
As
specified in the Preliminary Statement.
Officer’s
Certificate:
A
certificate (i) signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Managing Director, a Vice President (however
denominated), an Assistant Vice President, the Treasurer, the Secretary, or
one
of the Assistant Treasurers or Assistant Secretaries of the Depositor or the
Servicer, or (ii) if provided for in this Agreement, signed by a Servicing
Officer, as the case may be, and delivered to the Depositor and the Trustee
as
required by this Agreement.
Opinion
of Counsel:
For the
interpretation or application of the REMIC Provisions, counsel must (i) in
fact
be independent of the Depositor and the Servicer, (ii) not have any direct
financial interest in the Depositor or the Servicer or in any affiliate of
either, and (iii) not be connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, Opinion of Counsel is a written opinion
of counsel, who may be counsel for the Depositor or the Servicer, including
in-house counsel, reasonably acceptable to the Trustee.
Optional
Termination:
The
termination of the Trust Fund created hereunder in connection with the purchase
of the Mortgage Loans pursuant to Section 9.01(a).
Optional
Termination Date:
The
Distribution Date following the last day of the related Remittance Period on
which the aggregate Stated Principal Balance of the Mortgage Loans and any
REO
Property declines to less than 10% of the aggregate Stated Principal Balance
of
the Closing Date Mortgage Loans as of the Cut-off Date.
OTS:
The
Office of Thrift Supervision.
Outstanding:
For the
Certificates as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except:
(i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation; and
(ii) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Trustee pursuant to this Agreement.
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 Prepayment Period related to that Due Date and that did not become
a Liquidated Mortgage Loan before the Due Date.
Overcollateralization
Amount:
For any
Distribution Date, the excess
of
(a) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Remittance Period (adjusted for Principal Prepayments received
during the Prepayment Period that includes such last day) over
(b) the
aggregate Class Certificate Balance of the Class A Certificates, the
Subordinated Certificates and the Class P Certificates as of that date (assuming
the distribution of 100% of the Principal Remittance Amount on those
Certificates on that Distribution Date).
Overcollateralization
Deficiency:
For any
Distribution Date, the excess
of (a)
the Overcollateralization Target Amount applicable to such Distribution Date
over
(b) the
Overcollateralization Amount for that Distribution Date.
Overcollateralization
Target Amount: For
any
Distribution Date, (i) prior to the Stepdown Date, an amount equal to 5.90%
of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Cut-off Date plus the cumulative Subordinate Acceleration Amount prior to such
Distribution Date, (ii) on or after the Stepdown Date provided a Trigger Event
is not in effect, the greater of (x) 11.80% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Remittance Period (after giving effect to Principal Prepayments received during
the related Prepayment Period) plus the product of (A) a fraction, the numerator
of which is the reduction in the aggregate Certificate Principal Balance of
the
Class B Certificates prior to such Distribution Date and the denominator of
which is the aggregate Stated Principal Balance of the Mortgage Loans as of
the
Cut-off Date, (B) 2 and (C) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Remittance Period (after giving
effect to Principal Prepayments received during the Prepayment Period that
includes such last day) and (y) 0.50% of the aggregate Stated Principal Balance
of the Mortgage Loans or (iii) if a Trigger Event is in effect, the sum of
the
Overcollateralization Target Amount and the Subordinate Acceleration Amount
for
the immediately preceding Distribution Date. Notwithstanding the
foregoing, on and after any Distribution Date following the reduction of the
aggregate Class Certificate Balance of the Floating Rate Certificates and the
Fixed Rate Certificates to zero, the Overcollateralization Target Amount will
be
zero.
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in the Certificate, including
any interest in the Certificate as its Holder and any other interest therein,
whether direct or indirect, legal or beneficial.
Pass-Through
Margin:
For
each Class of Floating Rate Certificates for the Interest Accrual Period for
each Distribution Date on or before the Optional Termination Date, the
respective amount set forth below:
Class
|
Pass-Through
Margin
|
||
A
|
LIBOR
+ 0.1300%
|
||
M-1
|
LIBOR
+ 0.3200%
|
||
M-2
|
LIBOR
+ 0.3400%
|
||
M-3
|
LIBOR
+ 0.3600%
|
||
M-4
|
LIBOR
+ 0.4600%
|
||
M-5
|
LIBOR
+ 0.4900%
|
||
M-6
|
LIBOR
+ 0.6000%
|
||
M-7
|
LIBOR
+ 1.1500%
|
||
M-8
|
LIBOR
+ 1.3500%
|
||
M-9
|
LIBOR
+ 2.1500%
|
||
M-10
|
LIBOR
+ 2.2500%
|
For
the
Interest Accrual Period for each Distribution Date after the Optional
Termination Date, the Pass-Through Margin for the Class A Certificates shall
be
2 times its initial margin and the Pass-Through Margin for each Class of
Subordinated Certificates (other than the Class B-1, Class B-2 and Class B-3
Certificates) shall be 1.5 times its initial margin.
Pass-Through
Rate: With
respect to any Class of Class A Certificates or Subordinated Certificates and
any Distribution Date, the least
of
(x)
LIBOR plus the related Pass-Through Margin for such Distribution Date, (y)
the
Net WAC Cap for such Distribution Date and (z) the related Maximum Cap for
such
Distribution Date.
With
respect to the Fixed Rate Certificates and any Distribution Date, the lesser
of
(x) the related fixed rate per annum set forth below for such Distribution
Date
and (y) the Net WAC Cap for such Distribution Date.
Class
|
Fixed
Rate(1)
|
Fixed
Rate(2)
|
|||
B-1
|
6.5000%
per annum
|
7.0000%
per annum
|
|||
B-2
|
6.5000%
per annum
|
7.0000%
per annum
|
|||
B-3
|
6.5000%
per annum
|
7.0000%
per annum
|
__________
(1) For
the
Accrual Period for each Distribution Date on or prior to the Optional
Termination Date.
(2) For
each
other Accrual Period.
With
respect to the Class C Interest and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
the
sum of the amounts calculated pursuant to clauses (A) through (P) below, and
the
denominator of which is the aggregate Uncertificated Balance of REMIC II Regular
Interest LTAA, REMIC II Regular Interest LTA, REMIC II Regular Interest LTM1,
REMIC II Regular Interest LTM2, REMIC II Regular Interest LTM3, REMIC II Regular
Interest LTM4, REMIC II Regular Interest LTM5, REMIC II Regular Interest LTM6,
REMIC II Regular Interest LTM7, REMIC II Regular Interest LTM8, REMIC II Regular
Interest LTM9, REMIC II Regular Interest LTM10, REMIC II Regular Interest LTB1,
REMIC II Regular Interest LTB2, REMIC II Regular Interest LTB3 and REMIC II
Regular Interest LTZZ. For purposes of calculating the Pass-Through Rate for
the
Class C Interest, the numerator is equal to the sum of the following
components:
(A) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTAA minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTAA;
(B) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTA minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTA;
(C) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM1 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM1;
(D) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM2 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM2;
(E) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM3 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM3;
(F) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM4 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM4;
(G) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM5 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest LTM5;
(H) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM6 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest LTM6;
(I) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM7 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM7;
(J) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM8 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM8;
(K) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM9 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM9;
(L) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTM10 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTM10;
(M) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTB1 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTB1;
(N) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTB2 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTB2;
(O) the
REMIC
II Remittance Rate for REMIC II Regular Interest LTB3 minus
the
Marker Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II Regular Interest LTB3; and
(P) 100%
of
the interest on REMIC II Regular Interest LTP.
The
Class
P Certificates, Class R Certificates and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
With
respect to the Class C Certificates, 100% of the interest distributable to
the
Class C Interest, expressed as a per annum rate.
The
Class
IO Interest shall not have a Pass-Through Rate, but interest for such Regular
Interest and each Distribution Date shall be an amount equal to 100% of the
amounts distributable to REMIC II Regular Interest LTIO for such Distribution
Date.
REMIC
VI
Regular Interest SWAP IO Interest shall not have a Pass-Through Rate, but
interest for such Regular Interest and each Distribution Date shall be an amount
equal to 100% of the amounts distributable to the Class IO Interest for such
Distribution Date.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being stated
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
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper that is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or any lower rating that
will not result in the downgrading or withdrawal of the ratings then assigned
to
the Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal or state banking authorities; provided, that the commercial paper
or
long-term unsecured debt obligations of the depository institution or trust
company (or in the case of the principal depository institution in a holding
company system, the commercial paper or long-term unsecured debt obligations
of
the holding company, but only if Xxxxx’x is not a Rating Agency) are then rated
one of the two highest long-term and the highest short-term ratings of each
Rating Agency for the securities, or any lower rating that will not result
in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(v) demand
or
time deposits or certificates of deposit issued by any bank or trust company
or
savings institution to the extent that the deposits are fully insured by the
FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company, or other
corporation acceptable to the Rating Agencies at the time of the issuance of
the
agreements, as evidenced by a signed writing delivered by each Rating
Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above; provided, that
such repurchase obligation would be accounted for as a financing arrangement
under generally accepted accounting principles;
(viii) securities
(other than stripped bonds, stripped coupons, or instruments sold at a purchase
price in excess of 115% of their face amount) bearing interest or sold at a
discount, issued by any corporation incorporated under the laws of the United
States or any state thereof, that, at the time of the investment, have one
of
the two highest ratings of each Rating Agency (except that if the Rating Agency
is Moody’s, the rating shall be the highest commercial paper rating of Moody’s
for the securities), or any lower rating that will not result in the downgrading
or withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(ix) units
of
a taxable money-market portfolio having the highest rating assigned by each
Rating Agency 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 the Rating
Agencies that will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency.
No
Permitted Investment may (i) evidence the right to receive interest only
payments with respect to the obligations underlying the instrument, (ii) be
sold
or disposed of before its maturity or (iii) be any obligation of the Seller
or
any of its Affiliates. Any Permitted Investment shall be relatively risk free
and no options or voting rights shall be exercised with respect to any Permitted
Investment. Any Permitted Investment shall be sold or disposed of in accordance
with Statement of Financial Accounting Standards No. 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) 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 created under this Agreement to fail to qualify as a REMIC
at
any time that the Certificates are outstanding.
The
terms
“United
States,”
“State,”
and
“International
Organization”
have
the meanings in Section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its activities
are
subject to tax and, with the exception of the FHLMC, a majority of its board
of
directors is not selected by such government unit.
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.
Pool
Stated Principal Balance:
As to
any Distribution Date, the aggregate Stated Principal Balance of the Outstanding
Mortgage Loans on the last day of the related Remittance Period (after giving
effect to Principal Prepayments received in the Prepayment Period related to
that prior Due Date).
Prepayment
Charge:
As to a
Mortgage Loan, any charge paid by a Mortgagor in connection with certain partial
prepayments and all prepayments in full made within the related Prepayment
Charge Period, the Prepayment Charges with respect to each applicable Mortgage
Loan so held by the Trust 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 contain the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan account number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination in which the related Mortgaged Property is located;
(iv) the
first
date on which a monthly payment is or was due under the related Mortgage
Note;
(v) the
term
of the Prepayment Charge;
(vi) the
original principal amount of the related Mortgage Loan; and
(vii) the
Cut-off Date Principal Balance or Subsequent Cut-off Date Principal Balance,
as
applicable, of the related Mortgage Loan.
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with this Agreement.
Prepayment
Interest Excess:
As to
any Principal Prepayment received by the Servicer on a Mortgage Loan from the
first day through the fifteenth day of any calendar month other than May 2006,
all amounts paid by the related Mortgagor in respect of interest on such
Principal Prepayment. All Prepayment Interest Excess shall be retained by the
Servicer as additional servicing compensation.
Prepayment
Interest Shortfall:
As to
any Distribution Date, Mortgage Loan and Principal Prepayment received on or
after the sixteenth day of the month preceding the month of such Distribution
Date (or, in the case of the first Distribution Date, on or after May 1, 2006)
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, 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, on May 1, 2006) to and including the
15th
day of
the month of such Distribution Date.
Primary
Insurance Policy:
Each
policy of primary mortgage guaranty insurance or any replacement policy therefor
with respect to any Mortgage Loan.
Principal
Distribution Amount:
For any
Distribution Date, the sum
of
(i) the
excess if (a) the Principal Remittance Amount and such Distribution Date
over
(b) the
Excess Overcollateralization Amount, if any, for such Distribution Date and
(ii)
the Extra Principal Distribution Amount for the Distribution Date.
Principal
Prepayment:
Any
payment of principal by a Mortgagor on a Mortgage Loan (including the Purchase
Price of any modified Mortgage Loan purchased pursuant to Section 3.12(c))
that
is received in advance of its scheduled Due Date and is not accompanied by
an
amount representing scheduled interest due on any date in any month after the
month of prepayment. The Servicer shall apply partial Principal Prepayments
in
accordance with the related Mortgage Note.
Principal
Prepayment in Full:
Any
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
Principal
Remittance Amount:
For any
Distribution Date, the sum
of
the
following amounts (without duplication) with respect to the Mortgage
Loans:
(i) the
principal portion of all Scheduled Payments due during the related Remittance
Period that were received by the Servicer before the related Determination
Date
or were part of the Advance for the related Determination Date;
(ii) each
Principal Prepayment received by the Servicer during the related Prepayment
Period;
(iii) the
Liquidation Proceeds on the Mortgage Loans allocable to principal and Subsequent
Recoveries actually collected by the Servicer during the preceding calendar
month;
(iv) the
principal portion of any Substitution Adjustment Amounts in connection with
a
substitution of a Mortgage Loan as of the Distribution Date;
(v) the
principal portion of the Purchase Price with respect to each Deleted Mortgage
Loan, the repurchase obligation for which arose during the preceding calendar
month and that was repurchased before the related Distribution Account Deposit
Date;
(vi) the
principal portion of any proceeds from mortgage insurance on the Mortgage Loans;
and
(vii) the
proceeds received with respect to the termination of the Trust Fund pursuant
to
Section 9.01 (to the extent such proceeds relate to principal and the Mortgage
Loans).
Private
Certificates:
As
specified in the Preliminary Statement.
Prospectus
Supplement:
The
Prospectus Supplement dated May 19, 2006 relating to the Offered
Certificates.
PUD:
Planned
Unit Development.
Purchase
Price:
For any
Mortgage Loan required to be purchased by the Seller pursuant to Section 2.01,
2.02, 2.03 or 2.05 or purchased by the Servicer pursuant to Section 3.12, the
sum
of:
(i) 100%
of
the unpaid principal balance of the Mortgage Loan on the date of the purchase;
(ii) accrued
interest on the Mortgage Loan at the applicable Mortgage Rate (or at the
applicable Adjusted Mortgage Rate if (x) the purchaser is the Servicer or (y)
if
the purchaser is the Seller and the Seller is the Servicer) from the date
through which interest was last paid by the Mortgagor to the Due Date in the
month in which the Purchase Price is to be distributed to Certificateholders,
net of any unreimbursed Advances made by the Servicer on the Mortgage Loan;
and
(iii) any
costs
and damages incurred by the Trust Fund in connection with any violation by
the
Mortgage Loan of any predatory or abusive lending law.
If
the
Mortgage Loan is a Mortgage Loan to be repurchased pursuant to Section 3.12,
the
interest component of the Purchase Price shall be computed (i) on the basis
of
the applicable Adjusted Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the
date
on which the Mortgage Loan is assigned to the Servicer pursuant to Section
3.12(c).
Qualified
Insurer:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
the insurer in connection with the insurance policy issued by the insurer,
duly
authorized and licensed in such states to transact a mortgage guaranty insurance
business in such states and to write the insurance provided by the insurance
policy issued by it, approved as an FNMA- or FHLMC-approved mortgage insurer
or
having a claims paying ability rating of at least “AA” or an 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:
The
excess of the Stated Principal Balance of a defaulted Mortgage Loan over the
net
Liquidation Proceeds with respect thereto that are allocated to the principal
balance of such Mortgage Loan.
Record
Date:
For the
Class A and Subordinated Certificates held in book-entry form, the close of
business on the Business Day before the related Distribution Date. For any
Definitive Certificate, the close of business on the last Business Day of the
month preceding the month of the related Distribution Date.
Reference
Bank:
As
defined in Section 4.07.
Refinance
Loan:
Any
Mortgage Loan the proceeds of which are used to refinance an existing Mortgage
Loan.
Regular
Certificates:
Any
Class A, Class M, Class C or Class P Certificate.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be published by the Commission or its staff from time
to
time.
Relief
Act:
The
Servicemembers Civil Relief Act.
Relief
Act Interest Shortfall:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended calendar month as a result of the application of the Relief
Act
or similar state laws, the amount, if any, by which (i) interest collectible
on
such Mortgage Loan for the most recently ended calendar month is less than
(ii)
interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
I Regular Interest:
Any of
the separate non certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a “regular interest” in REMIC I. Each REMIC I
Regular Interest shall accrue interest at the related REMIC I Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC I Regular Interests are set forth
in
the Preliminary Statement hereto.
REMIC
I Remittance Rate:
With
respect to REMIC 1 Regular Interest I, a per annum rate equal to the weighted
average of the Adjusted Net Mortgage Rates of the Mortgage Loans. With respect
to each REMIC 1 Regular Interest ending with the designation “A”, a per annum
rate equal to the weighted average of the Adjusted Net Mortgage Rates of the
Mortgage Loans multiplied by 2, subject to a maximum rate of 11.1500%. With
respect to each REMIC 1 Regular Interest ending with the designation “B”, the
greater of (x) a per annum rate equal to the excess, if any, of (i) 2 multiplied
by the weighted average of the Adjusted Net Mortgage Rates of the Mortgage
Loans
over (ii) 11.1500% and (y) 0.00%.
REMIC
II Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount (subject to adjustment based on
the
actual number of days elapsed in the respective Interest Accrual Periods for
the
indicated Regular Interests for such Distribution Date) equal to (a) the product
of (i) the aggregate Stated Principal Balance of the Mortgage Loans and REO
Properties then outstanding and (ii) the REMIC II Remittance Rate for REMIC
II
Regular Interest LTAA minus the Marker Rate, divided by (b) 12.
REMIC
II Overcollateralization Target Amount:
1.00%
of the Overcollateralization Target Amount.
REMIC
II Overcollateralized Amount:
With
respect to any date of determination, (i) 1.00% of the aggregate Uncertificated
Balance of the REMIC II Regular Interests (other than REMIC II Regular Interest
LTP) minus
(ii)
the
aggregate Uncertificated Balance of REMIC II Regular Interest LTA, REMIC II
Regular Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular Interest
LTM3, REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5, REMIC
II
Regular Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular Interest
LTM8, REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10, REMIC
II
Regular Interest LTB1, REMIC II Regular Interest LTB2 and REMIC II Regular
Interest LTB3 in each case as of such date of determination.
REMIC
II Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) one (1) minus a fraction, the numerator of which is two
(2)
times the aggregate Uncertificated Balance of REMIC II Regular Interest LT,
REMIC II Regular Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular
Interest LTM3, REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5,
REMIC II Regular Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular
Interest LTM8, REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10,
REMIC II Regular Interest LTB1, REMIC II Regular Interest LTB2 and REMIC II
Regular Interest LTB3 and the denominator of which is the aggregate
Uncertificated Balance of REMIC II Regular Interest LTA, REMIC II Regular
Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular Interest LTM3,
REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5, REMIC II Regular
Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular Interest LTM8,
REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10, REMIC II
Regular Interest LTB1, REMIC II Regular Interest LTB2, REMIC II Regular Interest
LTB3 and REMIC II Regular Interest LTZZ.
REMIC
II Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a regular interest in REMIC II. Each REMIC II
Regular Interest shall accrue interest at the related REMIC II Remittance Rate
in effect from time to time, and shall be entitled to distributions of principal
(other than the REMIC II Regular Interest LTIO), subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Balance as set forth in the Preliminary Statement hereto. The REMIC II Regular
Interests are as follows: REMIC II Regular Interest LTAA, REMIC II Regular
Interest LTA, REMIC II Regular Interest LTB1, REMIC II Regular Interest LTB2,
REMIC II Regular Interest LTB3, REMIC II Regular Interest LTIO, REMIC II Regular
Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular Interest LTM3,
REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5, REMIC II Regular
Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular Interest LTM8,
REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10, REMIC II
Regular Interest LTP and REMIC II Regular Interest LTZZ.
REMIC
II Remittance Rate:
With
respect to REMIC II Regular Interest LTAA, REMIC II Regular Interest LTA, REMIC
II Regular Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular
Interest LTM3, REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5,
REMIC II Regular Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular
Interest LTM8, REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10,
REMIC II Regular Interest LTB1, REMIC II Regular Interest LTB2, REMIC II Regular
Interest LTB3 and REMIC II Regular Interest LTP and REMIC II Regular Interest
LTZZ, a
per
annum rate (but not less than zero) equal to the weighted average of (w) with
respect to REMIC I Regular Interest I and REMIC I Regular Interest II, the
REMIC
I Remittance Rate for such REMIC I Regular Interest for each such Distribution
Date, (x) with respect to REMIC I Regular Interests ending with the designation
“B”, the weighted average of the REMIC I Remittance Rates for such REMIC I
Regular Interests, weighted on the basis of the Uncertificated Balance of such
REMIC I Regular Interests for each such Distribution Date and (y) with respect
to REMIC I Regular Interests ending with the designation “A”, for each
Distribution Date listed below, the weighted average of the rates listed below
for each such REMIC I Regular Interest listed below, weighted on the basis
of
the Uncertificated Balance of each such REMIC I Regular Interest for each such
Distribution Date:
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
1
|
I-1-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
2
|
I-2-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
3
|
I-3-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
4
|
I-4-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
5
|
I-5-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
6
|
I-6-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
7
|
I-7-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
8
|
I-8-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
9
|
I-9-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
10
|
I-10-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
11
|
I-11-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
12
|
I-12-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
13
|
I-13-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
14
|
I-14-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
15
|
I-15-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
16
|
I-16-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
17
|
I-17-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
18
|
I-18-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
19
|
I-19-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
20
|
I-20-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
21
|
I-21-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
22
|
I-22-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
23
|
I-23-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
24
|
I-24-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
25
|
I-25-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
26
|
I-26-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
27
|
I-27-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
28
|
I-28-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
29
|
I-29-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
30
|
I-30-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
31
|
I-31-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
32
|
I-32-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
33
|
I-33-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
34
|
I-34-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
35
|
I-35-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
36
|
I-36-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
37
|
I-37-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
38
|
I-38-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
39
|
I-39-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
40
|
I-40-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
41
|
I-41-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-40-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
42
|
I-42-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-41-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
43
|
I-43-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-42-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
44
|
I-44-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-43-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
45
|
I-45-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-44-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
46
|
I-46-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-45-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
47
|
I-47-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-46-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
48
|
I-48-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-47-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
49
|
I-49-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-48-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
50
|
I-50-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-49-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
51
|
I-51-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-50-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
52
|
I-52-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-51-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
53
|
I-53-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-52-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
54
|
I-54-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-53-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
55
|
I-55-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-54-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
56
|
I-56-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-55-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
57
|
I-57-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-56-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
58
|
I-58-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-57-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
59
|
I-59-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-58-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
60
|
I-60-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-59-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
61
|
I-61-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-60-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
62
|
I-62-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-61-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
63
|
I-63-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-62-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
64
|
I-64-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-63-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
65
|
I-65-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-64-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
66
|
I-66-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-65-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
67
|
I-67-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-66-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
68
|
I-68-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-67-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
69
|
I-69-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-68-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
70
|
I-70-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-69-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
71
|
I-71-A
through I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-70-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
72
|
I-72-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
I-1-A
through I-71-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
thereafter
|
I-1-A
through I-72-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
With
respect to REMIC II Regular Interest LTIO and (a) the first 60 Distribution
Dates, the excess of (i) the weighted average of the REMIC I Remittance Rates
for REMIC I Regular Interests ending with the designation “A”, over (ii) 2
multiplied by Swap LIBOR and (b) thereafter, 0.00%.
REMIC
III Regular Interest:
Any of
the Class C Interest, Class P Interest, Class IO Interest, and any “regular
interest” in REMIC III the ownership of which is represented by a Class A
Certificate or Class M Certificate.
REMIC
IV Regular Interest:
Any
“regular interest” in REMIC IV the ownership of which is represented by a Class
C Certificate.
REMIC
V Regular Interest:
Any
“regular interest” in REMIC V the ownership of which is represented by a Class P
Certificate.
REMIC
VI Regular Interest:
Any
“regular interest” in REMIC V the ownership of which is represented REMIC VI
Regular Interst SWAP IO, which is uncertificated.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMICs, 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.
REMIC
Regular Interest:
A REMIC
I Regular Interest, REMIC II Regular Interest, REMIC III Regular Interest,
REMIC
IV Regular Interest, REMIC V Regular Interest or REMIC VI Regular
Interest.
REMIC
Remittance Rate:
The
REMIC I Remittance Rate or the REMIC II Remittance Rate, as
applicable.
Remittance
Period:
For any
Distribution Date, the period commencing on the second day of the month
preceding the month in which the Distribution Date occurs and ending on the
first day of the month in which the Distribution Date occurs.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Request
for Release:
The
Request for Release submitted by the 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 or the Supplemental Interest Trust Trustee,
any
Vice President (however denominated), any Assistant Vice President, any
Assistant Secretary, any Assistant Treasurer, any Trust Officer or any other
officer of the Trustee or the Supplemental Interest Trust Trustee, as
applicable, 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.
S&P:
Standard & Poor’s Ratings Services, 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 Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or any other address that S&P furnishes to the
Depositor and the Servicer.
Scheduled
Payment:
The
scheduled monthly payment due on a Mortgage Loan allocable to principal and/or
interest on the Mortgage Loan that, unless otherwise specified herein, shall
give effect to any related Debt Service Reduction and any Deficient Valuation
that affects the amount of the monthly payment due on the Mortgage
Loan.
Securities
Act:
The
Securities Act of 1933, as amended.
Seller:
IndyMac
Bank, F.S.B., a federal savings bank, and its successors and assigns, in its
capacity as seller of the Mortgage Loans to the Depositor.
Senior
Enhancement Percentage:
For any
Distribution Date, the Credit Enhancement Percentage for the Class A
Certificates.
Servicing
Account:
The
separate Eligible Account or Accounts created and maintained pursuant to Section
3.06(b).
Servicer:
IndyMac
Bank, F.S.B., a federal savings bank, and its successors and assigns, in its
capacity as servicer under this Agreement.
Servicer
Advance Date:
As to
any Distribution Date, 12:30 p.m. (Pacific time) on the Business Day preceding
the Distribution Date.
Servicing
Advances:
All
customary, reasonable, and necessary “out of pocket” costs and expenses incurred
in the performance by the Servicer of its servicing obligations, including
the
cost of (i) the preservation, restoration, and protection of a Mortgaged
Property, expenses reimbursable to the Servicer pursuant to Section 3.12 and
any
enforcement or judicial proceedings, including foreclosures, the maintenance
and
liquidation of any REO Property, and compliance with the obligations under
Section 3.10; and (ii) reasonable compensation to the Servicer or its affiliates
for acting as broker in connection with the sale of foreclosed Mortgaged
Properties and for performing certain default management and other similar
services (including appraisal services) in connection with the servicing of
defaulted Mortgage Loans. For purposes of clause (ii), only costs and expenses
incurred in connection with the performance of activities generally considered
to be outside the scope of customary servicing or servicing duties shall be
treated as Servicing Advances.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time, or those Servicing Criteria otherwise mutually agreed
to by IndyMac and the applicable Servicer in response to evolving
interpretations of Regulation AB and incorporated into a revised Exhibit
R.
Servicing
Fee:
As to
each Mortgage Loan and any Distribution Date, one month’s interest at the
related Servicing Fee Rate on the Stated Principal Balance of the Mortgage
Loan
as of the Due Date in the prior calendar month or, in the event of any payment
of interest that accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Servicing Fee Rate on the Stated Principal Balance
of
the Mortgage Loan for the period covered by the payment of interest, subject
to
reduction as provided in Section 3.15.
Servicing
Fee Rate:
For
each Mortgage Loan, 0.500% per annum.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name and facsimile signature appear on
a
list of servicing officers furnished to the Trustee by the Servicer on the
Closing Date pursuant to this Agreement, as the list may from time to time
be
amended.
Servicer
Remittance Amount: For
any
Distribution Date, is the sum
of:
(i) all
scheduled installments of interest (net of the related Servicing Fees) and
principal due on the Due Date on the Mortgage Loans in the related Remittance
Period and received by the related Determination Date, together with any related
Advances;
(ii) all
Insurance Proceeds (including those received but excluding those included in
Liquidation Proceeds), Liquidation Proceeds and Subsequent Recoveries received
during the preceding calendar month (in each case, net of unreimbursed expenses
incurred in connection with a liquidation or foreclosure and net of the related
Excess Proceeds); and
(iii) all
partial or full Principal Prepayments on the Mortgage Loans received during
the
related Prepayment Period together with all Compensating Interest on those
Mortgage Loans and interest paid by the Mortgagors (other than Prepayment
Interest Excess); and
minus
amounts
in reimbursement for Advances previously made with respect to the Mortgage
Loans, and other expenses reimbursable to the Servicer with respect to the
Mortgage Loans pursuant to this Agreement.
Servicing
Standard:
That
degree of skill and care exercised by the Servicer with respect to mortgage
loans comparable to the Mortgage Loans serviced by the Servicer for itself
or
others.
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
any Mortgage Loan and any date of determination, the unpaid principal balance
of
such Mortgage Loan as of the immediately preceding Due Date (or such Due Date
if
the date of determination is a Due Date), as specified in the amortization
schedule for such Due Date (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, (ii) any
Liquidation Proceeds allocable to principal received in the prior calendar
month
with respect to such Mortgage Loan and (iii) any Principal Prepayments received
through the last day of the Prepayment Period that includes such Due Date with
respect to such Mortgage Loan.
Stepdown
Date:
The
earlier to occur of (a) the first Distribution Date on which the aggregate
Class
Certificate Balance of the Class A Certificates is reduced to zero, and (b)
the
later to occur of (i) the Distribution Date in June 2009 and (ii) the first
Distribution Date on which the Senior Enhancement Percentage (calculated for
this purpose only without taking into account the application of the Principal
Distribution Amount to the Certificates) is greater than or equal to
72.70%.
Subordinate
Acceleration Amount:
For any
Distribution Date, the aggregate amount of Total Monthly Excess Spread
distributed to the Class B Certificates, all Prepayment Charges collected in
connection with any Mortgage Loans during the related Prepayment Period and
paid
to the Class B Certificates and any Net Swap Payments distributed to the Class
B
Certificates.
Subordinated
Certificates:
As
specified in the Preliminary Statement.
Subsequent
Recoveries:
As to
any Distribution Date, with respect to a Liquidated Mortgage Loan that resulted
in a Realized Loss in a prior calendar month, unexpected amounts received by
the
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 3.09) specifically related to such Liquidated Mortgage
Loan.
Substitute
Mortgage Loan:
A
Mortgage Loan substituted by the Seller for a Deleted Mortgage Loan that must,
on the date of substitution, as confirmed in a Request for Release,
substantially in the form of Exhibit M:
(i) have
a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
more than 10% less than, the Stated Principal Balance of the Deleted Mortgage
Loan;
(ii) be
accruing interest at a rate no lower than and not more than 1% per annum higher
than, that of the Deleted Mortgage Loan;
(iii) have
a
Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan;
(iv) 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;
(v) have
a
margin not more than 1% per annum higher than, and not lower than that of the
Deleted Mortgage Loan;
(vi) have
the
same Index and same time period between reset periods as 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; and
(ix) comply
with each representation and warranty in Section 2.03.
Substitution
Adjustment Amount:
As
defined in Section 2.03.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 4.05 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Class IO Interest and the right to receive payments in respect
of
the Class IO Distribution Amount. For the avoidance of doubt, the Supplemental
Interest Trust does not constitute a part of the Trust Fund.
Supplemental
Interest Trust Trustee:
Deutsche Bank National Trust Company and its successor and, if a successor
is
appointed under this Agreement, such successor.
Swap
Agreement:
The
interest rate swap agreement, dated May 22, 2006, between the Supplemental
Interest Trust Trustee, as trustee on behalf of the Supplemental Interest Trust,
and the Swap Provider, which agreement provides for Net Swap Payments and Swap
Termination Payments to be paid, as provided therein, together with any
schedules, confirmations or other agreements relating thereto, attached hereto
as Exhibit K.
Swap
LIBOR:
LIBOR
as determined pursuant to the Swap Agreement.
Swap
Provider:
The
party to the Swap Agreement either (a) entitled to receive payments from the
Supplemental Interest Trust or (b) required to make payments to the Supplemental
Interest Trust, in either case pursuant to the terms of the Swap Agreement,
and
any successor in interest or assign. Initially, the Swap Provider shall be
Bear
Xxxxxxx Financial Products, Inc.
Swap
Provider Trigger Event:
A Swap
Provider Trigger Event shall have occurred if any of an Event of Default (under
the Swap Agreement) with respect to which the Swap Provider is a Defaulting
Party, a Termination Event (under the Swap Agreement) with respect to which
the
Swap Provider is the sole Affected Party or an Additional Termination Event
(under the Swap Agreement) with respect to which the Swap Provider is the sole
Affected Party has occurred.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment to be made by the Supplemental Interest Trust to the Swap Provider,
or by the Swap Provider to the Supplemental Interest Trust, as applicable,
pursuant to the terms of the Swap Agreement.
Telerate
Page 3750:
The
display page currently so designated by Moneyline Telerate Information Services,
Inc. (or on any page replacing that page on that service for the purpose of
displaying London inter-bank offered rates of major banks).
Total
Monthly Excess Spread:
For any
Distribution Date, the excess
of
(i)
Available Funds during the related Remittance Period over
(ii) the
sum
of
the
amounts paid to the Certificates on the Distribution Date pursuant to Sections
4.02(I)(a) and (b), assuming for purposes of this calculation that the Extra
Principal Distribution Amount included in such distributions is equal to
zero.
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trigger
Event:
A
Trigger Event exists if with respect to any Distribution Date on or after the
Stepdown Date, (A) the quotient
of
(x) the
three month rolling average of the Stated Principal Balance of 60+ Day
Delinquent Loans as of the preceding calendar month over
(y) the
aggregate Stated Principal Balance of the Mortgage Loans, as of the last day
of
the preceding calendar month equals
or exceeds
11.00%
of the Senior Enhancement Percentage, or (B) a Cumulative Net Loss Trigger
Event
is in effect.
Trust:
The
trust created under this Agreement.
Trust
Fund:
The
corpus of the Trust consisting of REMIC I; REMIC II; REMIC III; REMIC IV; REMIC
V; REMIC VI; and the Excess Reserve Fund Account.
Trust
REMIC:
Any of
REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V or REMIC VI.
Trustee:
Deutsche Bank National Trust Company and its successors and, if a successor
trustee is appointed under this Agreement, such successor.
Trustee
Fee:
As
to
each Mortgage Loan and any Distribution Date, one month’s interest at the
Trustee Fee Rate on the Stated Principal Balance of the Mortgage Loan as of
the
Due Date occurring in the preceding calendar month (or, whenever a payment
of
interest accompanies a Principal Prepayment in Full made by the Mortgagor during
the preceding calendar month, interest at the Trustee Fee Rate on the Stated
Principal Balance of the Mortgage Loan for the period covered by the payment
of
interest) as of the Due Date occurring in the preceding calendar month (or,
in
the case of the initial Distribution Date, as of the Closing Date).
Trustee
Fee Rate:
0.0085%
per annum.
Uncertificated
Balance:
The
amount of any REMIC Regular Interest (other than the REMIC II Regular Interest
LTIO) outstanding as of any date of determination. As of the Closing Date,
the
Uncertificated Balance of each REMIC Regular Interest (other than the REMIC
II
Regular Interest LTIO) shall equal the amount set forth in the Preliminary
Statement hereto as its initial uncertificated balance. On each Distribution
Date, the Uncertificated Balance of each REMIC Regular Interest (other than
the
REMIC II Regular Interest LTIO) shall be reduced by all distributions of
principal made on such REMIC Regular Interest on such Distribution Date pursuant
to Section 4.08 and, if and to the extent necessary and appropriate, shall
be
further reduced on such Distribution Date by Realized Losses as provided in
Section 4.08. The Uncertificated Balance of REMIC II Regular Interest LTZZ
shall
be increased by interest deferrals as provided in Section 4.08(I)(1). The
Uncertificated Balance of each REMIC Regular Interest (other than the REMIC
II
Regular Interest LTIO) shall never be less than zero. With respect to the Class
C Interest as of any date of determination, an amount equal to the excess,
if
any, of (A) the then aggregate Uncertificated Principal Balance of the REMIC
II
Regular Interests over (B) the then aggregate Certificate Balance of the Class
A
Certificates, Subordinated Certificates and Class P Certificates then
outstanding.
Uncertificated
Interest:
With
respect to any REMIC Regular Interest for any Distribution Date, one month’s
interest at the REMIC Remittance Rate applicable to such REMIC Regular Interest
for such Distribution Date, accrued on the Uncertificated Balance or
Uncertificated Notional Amount thereof immediately prior to such Distribution
Date. Uncertificated Interest in respect of any REMIC Regular Interest shall
accrue on the basis of a 360-day year consisting of twelve 30-day months.
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
Regular Interest, shall be reduced by an amount equal to the sum of (a) the
aggregate Prepayment Interest Shortfalls, if any, for such Distribution Date
to
the extent not covered pursuant to Section 3.15 and (b) the aggregate amount
of
any Relief Act Interest Shortfalls, if any, in each case in the manner and
priority described below.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
I
Regular Interests for any Distribution Date the aggregate amount of any Net
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of Mortgage Loans shall be allocated first, to REMIC I Regular
Interest I and to the REMIC I Regular Interests ending with the designation
“B”,
pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest, and then, to REMIC I Regular Interests ending with
the
designation “A”, pro rata based on, and to the extent of, one month’s interest
at the then applicable respective REMIC I Remittance Rates on the respective
Uncertificated Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
II
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by the Servicer
pursuant to Section 3.15) and any Relief Act Interest Shortfalls incurred in
respect of the Mortgage Loans for any Distribution Date shall be allocated
among
REMIC II Regular Interest LTAA, REMIC II Regular Interest LTA, REMIC II Regular
Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular Interest LTM3,
REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5, REMIC II Regular
Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular Interest LTM8,
REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10, REMIC II
Regular Interest LTB1, REMIC II Regular Interest LTB2, REMIC II Regular Interest
LTB3, REMIC II Regular Interest LTZZ and REMIC II Regular Interest LTP,
pro
rata,
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC II Remittance Rate on the respective Uncertificated Balance of each such
REMIC II Regular Interest.
In
addition, Uncertificated Interest with respect to each Distribution Date, as
to
any REMIC Regular Interest, shall be reduced by Realized Losses, if any,
allocated to such REMIC Regular Interest as described above and pursuant to
Section 4.02.
Uncertificated
Notional Amount:
With
respect to REMIC II Regular Interest LTIO and each Distribution Date listed
below, the aggregate Uncertificated Balance of the REMIC I Regular Interests
ending with the designation “A” listed below:
Distribution
Date
|
REMIC
1 Regular Interests
|
1
|
I-1-A
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through I-72-A
|
10
|
I-10-A
through I-72-A
|
11
|
I-11-A
through I-72-A
|
12
|
I-12-A
through I-72-A
|
13
|
I-13-A
through I-72-A
|
14
|
I-14-A
through I-72-A
|
15
|
I-15-A
through I-72-A
|
16
|
I-16-A
through I-72-A
|
17
|
I-17-A
through I-72-A
|
18
|
I-18-A
through I-72-A
|
19
|
I-19-A
through I-72-A
|
20
|
I-20-A
through I-72-A
|
21
|
I-21-A
through I-72-A
|
22
|
I-22-A
through I-72-A
|
23
|
I-23-A
through I-72-A
|
24
|
I-24-A
through I-72-A
|
25
|
I-25-A
through I-72-A
|
26
|
I-26-A
through I-72-A
|
27
|
I-27-A
through I-72-A
|
28
|
I-28-A
through I-72-A
|
29
|
I-29-A
through I-72-A
|
30
|
I-30-A
through I-72-A
|
31
|
I-31-A
through I-72-A
|
32
|
I-32-A
through I-72-A
|
33
|
I-33-A
through I-72-A
|
34
|
I-34-A
through I-72-A
|
35
|
I-35-A
through I-72-A
|
36
|
I-36-A
through I-72-A
|
37
|
I-37-A
through I-72-A
|
38
|
I-38-A
through I-72-A
|
39
|
I-39-A
through I-72-A
|
40
|
I-40-A
through I-72-A
|
41
|
I-41-A
through I-72-A
|
42
|
I-42-A
through I-72-A
|
43
|
I-43-A
through I-72-A
|
44
|
I-44-A
through I-72-A
|
45
|
I-45-A
through I-72-A
|
46
|
I-46-A
through I-72-A
|
47
|
I-47-A
through I-72-A
|
48
|
I-48-A
through I-72-A
|
49
|
I-49-A
through I-72-A
|
50
|
I-50-A
through I-72-A
|
51
|
I-51-A
through I-72-A
|
52
|
I-52-A
through I-72-A
|
53
|
I-53-A
through I-72-A
|
54
|
I-54-A
through I-72-A
|
55
|
I-55-A
through I-72-A
|
56
|
I-56-A
through I-72-A
|
57
|
I-57-A
through I-72-A
|
58
|
I-58-A
through I-72-A
|
59
|
I-59-A
through I-72-A
|
60
|
I-60-A
through I-72-A
|
61
|
I-61-A
through I-72-A
|
62
|
I-62-A
through I-72-A
|
63
|
I-63-A
through I-72-A
|
64
|
I-64-A
through I-72-A
|
65
|
I-65-A
through I-72-A
|
66
|
I-66-A
through I-72-A
|
67
|
I-67-A
through I-72-A
|
68
|
I-68-A
through I-72-A
|
69
|
I-69-A
through I-72-A
|
70
|
I-70-A
through I-72-A
|
71
|
I-71-A
through I-72-A
|
72
|
I-72-A
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC II Regular Interest
LTIO.
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:
Any of
(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.
Unpaid
Interest Amounts:
As of
any Distribution Date and any Class of Certificates, the sum
of
(a) the
excess
of
(i) the
sum
of
the
Accrued Certificate Interest Distribution Amount for the Distribution Date
and
any portion of the Accrued Certificate Interest Distribution Amount from prior
Distribution Dates remaining unpaid over
(ii) the
amount in respect of interest on the Class of Certificates actually distributed
on such Distribution Date; and
(b) interest
on that excess for the related Interest Accrual Period at the applicable
Pass-Through Rate (to the extent permitted by applicable law).
Unpaid
Realized Loss Amount:
For any
Class of Subordinated Certificates and any Distribution Date, is the
excess
of
(i)
Applied Realized Loss Amounts for such Class over
(ii) the
sum
of
all
distributions in reduction of Applied Realized Loss Amounts for such Class
on
all previous Distribution Dates and any reductions applied thereto due to the
receipt of Subsequent Recoveries.
Voting
Rights:
The
portion of the voting rights of all of the Certificates that is allocated to
any
Certificate. As of any date of determination, (a) 1% of all Voting Rights shall
be allocated to any Class
C Certificates
and (b)
the remaining Voting Rights shall be allocated among Holders of the remaining
Classes of Certificates in proportion to the Certificate Balances of their
respective Certificates on the date (the Voting Rights to be allocated among
the
holders of Certificates of each Class in accordance with their respective
Percentage Interests); provided that, except as set forth in Section 10.01,
any
Certificate registered in the name of the Seller or its Affiliates shall be
deemed not to be outstanding and the Voting Rights to which it is entitled
shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been
obtained.
Section
1.02 Rules
of Construction.
Except
as
otherwise expressly provided in this Agreement or unless the context clearly
requires otherwise:
(a) References
to designated articles, sections, subsections, exhibits, and other subdivisions
of this Agreement, such as “Section 6.12 (a),” refer to the designated article,
section, subsection, exhibit, or other subdivision of this Agreement as a whole
and to all subdivisions of the designated article, section, subsection, exhibit,
or other subdivision. The words “herein,” “hereof,” “hereto,” “hereunder,” and
other words of similar import refer to this Agreement as a whole and not to
any
particular article, section, exhibit, or other subdivision of this
Agreement.
(b) Any
term
that relates to a document or a statute, rule, or regulation includes any
amendments, modifications, supplements, or any other changes that may have
occurred since the document, statute, rule, or regulation came into being,
including changes that occur after the date of this Agreement.
(c) Any
party
may execute any of the requirements under this Agreement either directly or
through others, and the right to cause something to be done rather than doing
it
directly shall be implicit in every requirement under this Agreement. Unless
a
provision is restricted as to time or limited as to frequency, all provisions
under this Agreement are implicitly available and things may happen from time
to
time.
(d) The
term
“including” and all its variations mean “including but not limited to.” Except
when used in conjunction with the word “either,” the word “or” is always used
inclusively (for example, the phrase “A or B” means “A or B or both,” not
“either A or B but not both”).
(e) A
reference to “a [thing]” or “any [of a thing]” does not imply the existence or
occurrence of the thing referred to even though not followed by “if any,” and
“any [of a thing]” is any of it. A reference to the plural of anything as to
which there could be either one or more than one does not imply the existence
of
more than one (for instance, the phrase “the obligors on a note” means “the
obligor or obligors on a note”). “Until [something occurs]” does not imply that
it must occur, and will not be modified by the word “unless.” The word “due” and
the word “payable” are each used in the sense that the stated time for payment
has passed. The word “accrued” is used in its accounting sense, i.e., an amount
paid is no longer accrued. In the calculation of amounts of things, differences
and sums may generally result in negative numbers, but when the calculation
of
the excess of one thing over another results in zero or a negative number,
the
calculation is disregarded and an “excess” does not exist. Portions of things
may be expressed as fractions or percentages interchangeably.
(f) All
accounting terms used in an accounting context and not otherwise defined, and
accounting terms partly defined in this Agreement, to the extent not completely
defined, shall be construed in accordance with generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Agreement shall
control. Capitalized terms used in this Agreement without definition that are
defined in the Uniform Commercial Code are used in this Agreement as defined
in
the Uniform Commercial Code.
(g) In
the
computation of a period of time from a specified date to a later specified
date
or an open-ended period, the words “from” and “beginning” mean “from and
including,” the word “after” means “from but excluding,” the words “to” and
“until” mean “to but excluding,” and the word “through” means “to and
including.” Likewise, in setting deadlines or other periods, “by” means “on or
before.” The words “preceding,” “following,” and words of similar import, mean
immediately preceding or following. References to a month or a year refer to
calendar months and calendar years.
(h) Any
reference to the enforceability of any agreement against a party means that
it
is enforceable, subject as to enforcement against the party, to applicable
bankruptcy, insolvency, reorganization, and other similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section
2.01 Conveyance
of Mortgage Loans.
(a) The
Seller, concurrently with the execution and delivery of this Agreement, hereby
transfers to the Depositor, without recourse, all the interest of the Seller
in
each Mortgage Loan, including all interest and principal due to the Seller
on
each Mortgage Loan after the applicable Cut-off Date and all interest and
principal payments on each Mortgage Loan received by the applicable Cut-off
Date
for installments of interest and principal due after the applicable Cut-off
Date
but not including payments of principal and interest due on each Mortgage Loan
by the applicable Cut-off Date. By the Closing Date, the Seller shall deliver
to
the Depositor or, at the Depositor’s direction, to the Trustee or other designee
of the Depositor, the Mortgage File for each Mortgage Loan listed in the
Mortgage Loan Schedule (except that, in the case of Mortgage Loans that are
Delayed Delivery Mortgage Loans, such delivery may take place within five (5)
Business Days of the Closing Date) as of the Closing Date. The delivery of
the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Seller and Depositor, for the Mortgage Loans.
(b) The
Depositor, concurrently with the execution and delivery of this Agreement,
hereby transfers to the Trustee for the benefit of the Certificateholders,
without recourse, all the interest of the Depositor in the Trust Fund, together
with the Depositor’s right to require the Seller to cure any breach of a
representation or warranty made in this Agreement by the Seller or to repurchase
or substitute for any affected Mortgage Loan in accordance with this Agreement.
The Depositor hereby directs the Supplemental Interest Trust Trustee to execute
the Swap Agreement.
(c) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered (or, in the case of the Delayed Delivery Mortgage Loans, will
deliver within the time periods specified in the definition of Delayed Delivery
Mortgage Loans) to the Trustee for the benefit of the Certificateholders the
following documents or instruments with respect to each Mortgage Loan so
assigned:
(i) The
original Mortgage Note, endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of _______________ ______________without
recourse,” with all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing the Mortgage Note (each
endorsement being sufficient to transfer all interest of the party so endorsing,
as noteholder or assignee thereof, in that Mortgage Note) or a lost note
affidavit for any Lost Mortgage Note from the Seller stating that the original
Mortgage Note was lost or destroyed, together with a copy of the Mortgage
Note.
(ii) Except
as
provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the
original recorded Mortgage or a copy of such Mortgage certified by the Seller
as
being a true and complete copy of the Mortgage (or, in the case of a Mortgage
for which the related Mortgaged Property is located in the Commonwealth of
Puerto Rico, a true copy of the Mortgage certified as such by an 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
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) The
original or copies of each assumption, modification, written assurance, or
substitution agreement.
(v) Except
as
provided below, the original or duplicate original lender’s title policy and all
its riders.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at the Seller’s expense, the MERS® System to
indicate that the Mortgage Loans sold by the Seller to the Depositor have been
assigned by the Seller to the Trustee in accordance with this Agreement for
the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage Loans. The
Seller further agrees that it will not, and will not permit the Servicer to,
and
the Servicer agrees that it will not, alter the information referenced in this
paragraph with respect to any Mortgage Loan sold by the Seller to the Depositor
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
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 hereof because such
document or documents have not been returned from the applicable public
recording office in the case of clause (ii) or (iii) above, or because the
title
policy has not been delivered to either the Servicer or the Depositor by the
applicable title insurer in the case of clause (v) above, the Depositor shall
promptly deliver to the Trustee, in the case of clause (ii) or (iii) above,
such
original Mortgage or such interim assignment, as the case may be, with evidence
of recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office, but in no event shall any such delivery of the original Mortgage and
each such interim assignment or a copy thereof, certified, if appropriate,
by
the relevant recording office, be made later than one year following the Closing
Date, or, in the case of clause (v) above, no later than 120 days following
the
Closing Date; provided, however, that in the event the Depositor is unable
to
deliver by such date each Mortgage and each such interim assignment by reason
of
the fact that any such documents have not been returned by the appropriate
recording office, or, in the case of each such interim assignment, because
the
related Mortgage has not been returned by the appropriate recording office,
the
Depositor shall deliver such documents to the Trustee as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date.
The
Depositor shall forward to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (b)
any other documents required to be delivered by the Depositor or the Servicer
to
the Trustee. If
the
original Mortgage is not delivered and in connection with the payment in full
of
the related Mortgage Loan the public recording office requires the presentation
of a “lost instruments affidavit and indemnity” or any equivalent document,
because only a copy of the Mortgage can be delivered with the instrument of
satisfaction or reconveyance, the Servicer shall execute and deliver the
required document to the public recording office. If
a
public recording office retains the original recorded Mortgage or if a Mortgage
is lost after recordation in a public recording office, the Seller shall deliver
to the Trustee a copy of the Mortgage certified by the public recording office
to be a true and complete copy of the original recorded Mortgage.
As
promptly as practicable after any transfer of a Mortgage Loan under this
Agreement, and in any event within thirty days after the transfer, the Trustee
shall (i) affix the Trustee’s name to each assignment of Mortgage, as its
assignee, and (ii) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the assignments of Mortgage shall not
be
required to be submitted for recording (except with respect to any Mortgage
Loan
located in Maryland) unless such failure to record would result in a withdrawal
or a downgrading by any Rating Agency of the rating on any Class of
Certificates; provided, however, that each assignment of Mortgage shall be
submitted for recording by the Seller (at the direction of the Servicer) in
the
manner described above, at no expense to the Trust Fund or the Trustee, upon
the
earliest to occur of: (i) reasonable direction by the Holders of Certificates
entitled to at least 25% of the Voting Rights, (ii) [reserved],
(iii)
the occurrence of a bankruptcy, insolvency or foreclosure relating to the
Seller, (iv) the occurrence of a servicing transfer as described in Section
7.02
hereof and (v) if the Seller is not the Servicer and with respect to any one
assignment or Mortgage, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage.
Notwithstanding the foregoing, if the Servicer is unable to pay the cost of
recording the assignments of Mortgage, such expense shall be paid by the Trustee
and shall be reimbursable out of the Distribution Account.
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 (5) Business Days after
the Closing Date, the Seller shall either:
(i) deliver
to the Trustee the Mortgage File as required pursuant to this Section 2.01
for
each Delayed Delivery Mortgage Loan; or
(ii) (A) repurchase
the Delayed Delivery Mortgage Loan or (B) substitute the Delayed Delivery
Mortgage Loan for a Substitute Mortgage Loan, which repurchase or substitution
shall be accomplished in the manner and subject to the conditions in Section
2.03.
The
Trustee shall, in accordance with Section 2.02, send a Delayed Delivery
Certification substantially in the form of Exhibit G-2 (with any applicable
exceptions noted thereon) for all Delayed Delivery Mortgage Loans delivered
within 30 days of receipt of the related Mortgage Files. The
Trustee will promptly send a copy of such Delayed Delivery Certification to
each
Rating Agency. If the Seller fails to deliver a Mortgage File for any Delayed
Delivery Mortgage Loan within the period specified herein, the Seller shall
use
its best reasonable efforts to effect a substitution, rather than a repurchase
of, any Deleted Mortgage Loan. The cure period provided for in Section 2.02
or
in Section 2.03 shall not apply to the initial delivery of the Mortgage File
for
such Delayed Delivery Mortgage Loan, but rather the Seller shall have five
(5)
Business Days to cure such failure to deliver. At the end of such period, the
Trustee shall send a Delayed Delivery Certification for the Delayed Delivery
Mortgage Loans delivered during such period in accordance with the provisions
of
Section 2.02.
The
Seller agrees to treat the transfer of the Mortgage Loans to the Depositor
as a
sale for all tax, accounting, and regulatory purposes.
It
is
agreed and understood by the parties hereto that it is not intended that any
Mortgage Loan be included in the Trust Fund that is a “High-Cost Home Loan”
(or
any
other similarly designated loan)
as
defined in the New Jersey Home Ownership Act effective November 27, 2003, The
Home Loan Protection Act of New Mexico effective January 1, 2004, The
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
or
The Indiana Home Loan Practices Act effective January 1, 2005.
Section
2.02 Acceptance
by the Trustee of the Mortgage Loans.
The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form of Exhibit G-1 and declares that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the Mortgage Loans, and that it holds or will hold such
other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders. The
Trustee acknowledges that it will maintain possession of the related Mortgage
Notes in the State of California, unless otherwise permitted by the Rating
Agencies.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Servicer and the Seller an Initial Certification in the form of Exhibit
G-1. Based
on
its review and examination, and only as to the documents identified in the
Initial Certification, the Trustee acknowledges that the documents appear
regular on their face and relate to the Mortgage Loans. The
Trustee shall be under no duty to inspect, review, or examine said documents,
instruments, certificates, or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
By
the
thirtieth day after the Closing Date (or if that day is not a Business Day,
the
succeeding Business Day), the Trustee shall deliver to the Depositor, the
Servicer and the Seller a Delayed Delivery Certification with respect to the
Mortgage Loans, substantially in the form of Exhibit G-2, with any applicable
exceptions noted thereon.
Not
later
than ninety (90) days after the Closing Date, the Trustee shall deliver to
the
Depositor, the Servicer and the Seller a Final Certification in the form of
Exhibit H, with any applicable exceptions noted thereon.
If,
in
the course of its review, the Trustee finds any document constituting a part
of
a Mortgage File that does not meet the requirements of Section 2.01, the Trustee
shall list such as an exception in the Final Certification. The Trustee shall
not make any determination as to whether (i) any endorsement is sufficient
to
transfer all interest of the party so endorsing, as noteholder or assignee
thereof, in that Mortgage Note or (ii) any assignment is in recordable form
or
is sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates. The
Seller shall promptly correct any such defect within ninety (90) days from
the
date it was so notified of the defect and, with respect to any Mortgage Loan
for
which such defect is materially adverse to the Certificateholders, if the Seller
does not correct such defect within that period, the Seller shall either (a)
substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished pursuant to Section 2.03, or (b) purchase
the
Mortgage Loan at its Purchase Price from the Trustee within ninety (90) days
from the date the Seller was notified of the defect in writing.
If
a
substitution or purchase of a Mortgage Loan pursuant to this provision is
required because of a delay in delivery of any documents by the appropriate
recording office, or there is a dispute between either the Servicer or the
Seller and the Trustee over the location or status of the recorded document,
then the substitution or purchase shall occur within 720 days from the Closing
Date. In
no
other case may a substitution
or purchase
occur more than 540 days from the Closing Date.
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 ninety (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 an Opinion of Counsel, if
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 Seller in the
Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and
shall execute and deliver at the Seller’s request any instruments of transfer or
assignment prepared by the Seller, in each case without recourse, necessary
to
vest in the Seller, or a designee, the Trustee’s interest in any Mortgage Loan
released pursuant hereto.
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Servicer shall either (i) cause MERS to execute
and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller as
the beneficial holder of such Mortgage Loan.
The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting
the
Mortgage File as come into the possession of the Servicer from time to
time.
The
obligation of the Seller to substitute for or to purchase any Mortgage Loan
that
does not meet the requirements of Section 2.01 shall constitute the sole remedy
respecting the defect available to the Trustee, the Depositor, and any
Certificateholder against the Seller.
Section
2.03 Representations,
Warranties, and Covenants of the
Seller
and the Servicer.
(a) IndyMac,
in its capacities as Seller and Servicer, hereby makes the representations
and
warranties in Schedule II, and by this reference incorporated herein, to the
Depositor, the Trustee and the Supplemental Interest Trust Trustee, as of the
Closing Date. The Servicer will fully furnish, in accordance with the Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on its credit files for the
related Mortgagor for each Mortgage Loan to Equifax, Experian and Trans Union
Credit Information Company on a monthly basis.
(b) The
Seller, in its capacity as Seller, hereby makes the representations and
warranties in Schedule III, and by this reference incorporated herein, to the
Depositor the Trustee and the Supplemental Interest Trust Trustee, as of the
Closing Date, or if so specified therein, as of the applicable 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.
A
breach of the representation or warranty made pursuant to clauses (29), (30),
(34), (35), (36), (37), (38) and (39) of Schedule III or a breach of the
covenant of the Servicer made pursuant to clause (a) above will be deemed to
materially and adversely affect the interests of the Certificateholders in
the
related Mortgage Loan. The Seller hereby covenants that within ninety (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 stated
below. Any substitution pursuant to (i) above shall not be effected before
the
delivery to the Trustee of the Opinion of Counsel, if required by Section 2.05,
and a Request for Release substantially in the form of Exhibit N, and the
Mortgage File for any Substitute Mortgage Loan. The Seller shall promptly
reimburse the Servicer and the Trustee for any expenses reasonably incurred
by
the Servicer or the Trustee in respect of enforcing the remedies for the
breach.
With
respect to any Substitute Mortgage Loan or Loans, the Seller shall deliver
to
the Trustee for the benefit of the Certificateholders the Mortgage Note, the
Mortgage, the related assignment of the Mortgage, and any other documents and
agreements required by Section 2.01, with the Mortgage Note endorsed and the
Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the Remittance Period
of substitution shall not be part of the Trust Fund and will be retained by
the
Seller on the next Distribution Date. For
the
Remittance Period of substitution, distributions to Certificateholders will
include the monthly payment due on any Deleted Mortgage Loan for the Remittance
Period and thereafter the Seller shall be entitled to retain all amounts
received with respect to the Deleted Mortgage Loan.
The
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of the Deleted Mortgage Loan and
the
substitution of the Substitute Mortgage Loans and the Servicer shall deliver
the
amended Mortgage Loan Schedule to the Trustee. Upon
the
substitution, the Substitute Mortgage Loans shall be subject to this Agreement
in all respects, and the Seller shall be deemed to have made with respect to
the
Substitute Mortgage Loans, as of the date of substitution, the representations
and warranties made pursuant to Section 2.03(b) with respect to the Mortgage
Loan. Upon
any
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with the substitution as described in
the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to the Deleted Mortgage Loan to
the
Seller and shall execute and deliver at the Seller’s direction such instruments
of transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
For
any
month in which the Seller substitutes one or more Substitute Mortgage Loans
for
one or more Deleted Mortgage Loans, the Servicer will determine the amount
by
which the aggregate principal balance of all such Substitute Mortgage Loans
as
of the date of substitution is less than the aggregate Stated Principal Balance
of all the Deleted Mortgage Loans (after application of the scheduled principal
portion of the monthly payments due in the Remittance Period of substitution
and
any adjustments due to any costs or damages incurred by the Trust Fund in
connection with any violation of the Mortgage Loan of any predatory or abusive
lending law). The
amount of the shortage (the “Substitution
Adjustment Amount”)
plus,
if the
Seller is not the Servicer, the aggregate of any unreimbursed Advances and
Servicing Advances with respect to the Deleted Mortgage Loans, shall be
deposited into the Certificate Account by the Seller by the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be purchased
or
replaced hereunder.
If
the
Seller repurchases a Mortgage Loan, the Purchase Price therefor shall be
deposited in the Certificate Account pursuant to Section 3.06 by the
Distribution Account Deposit Date for the Distribution Date in the month
following the month during which the Seller became obligated hereunder to
repurchase or replace the Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05 and
receipt of a Request for Release in the form of Exhibit N, the Trustee shall
release the related Mortgage File held for the benefit of the Certificateholders
to such Person, and the Trustee shall execute and deliver at such Person’s
direction such instruments of transfer or assignment prepared by such Person,
in
each case without recourse, as shall be necessary to transfer title from the
Trustee. The
obligation under this Agreement of any Person to cure, repurchase, or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against the Person respecting the breach available
to
Certificateholders, the Depositor, the Trustee or the Supplemental Interest
Trust Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Trustee for the benefit of
the
Certificateholders.
Section
2.04 Representations
and Warranties of the Depositor as to
the
Mortgage Loans.
The
Depositor hereby represents and warrants to the Trustee and the Supplemental
Interest Trust Trustee with respect to each Mortgage Loan as of the date hereof
or such other date set forth herein that as of the Closing Date, and following
the transfer of the Mortgage Loans to it by the Seller, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses, or counterclaims.
The
Depositor hereby transfers to the Trustee all of its rights with respect to
the
Mortgage Loans, including the representations and warranties of the Seller
made
pursuant to Section 2.03(b), together with all rights of the Depositor to
require the Seller to cure any breach thereof or to repurchase or substitute
for
any affected Mortgage Loan in accordance with this Agreement.
The
representations and warranties in this Section 2.04 shall survive delivery
of
the Mortgage Files to the Trustee. Upon
discovery by the Depositor, the Trustee or the Supplemental Interest Trust
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
2.01, 2.02, 2.03 or 2.05 shall be made more than ninety (90) days after the
Closing Date unless the Seller delivers to the Trustee an Opinion of Counsel,
which Opinion of Counsel shall not be at the expense of either the Trustee
or
the Trust Fund, addressed to the Trustee, to the effect that such substitution
will not (i) result in the imposition of the tax on “prohibited transactions” on
the Trust Fund or contributions after the Startup Date, as defined in Sections
860F(a)(2) and 860G(d) of the Code, respectively, or (ii) cause any REMIC
created under this Agreement to fail to qualify as a REMIC at any time that
any
Certificates are outstanding. A substitution pursuant to Section 2.01, 2.02,
2.03 or 2.05 that is made within ninety (90) days after the Closing Date shall
not require the Seller to deliver to the Trustee an Opinion of
Counsel.
(b) Upon
discovery by the Depositor, the Seller, the Servicer or the Trustee that any
Mortgage Loan does not constitute a “qualified mortgage” within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall promptly
(and in any event within five (5) Business Days of discovery) give written
notice thereof to the other parties. In connection therewith, the Trustee shall
require the Seller, at the Seller’s option, to either (i) substitute, if the
conditions in Section 2.03(c) with respect to substitutions are satisfied,
a
Substitute Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase
the
affected Mortgage Loan within ninety (90) days of such discovery in the same
manner as it would a Mortgage Loan for a breach of representation or warranty
made pursuant to Section 2.03. The
Trustee shall reconvey to the Seller the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
Section
2.06 Execution
and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with the transfer and assignment, has executed and delivered to
or
upon the 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 [Reserved].
Section
2.08 REMIC
Matters.
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created
hereby.
(a) The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Section 2.01 and
Section 2.02, together with the assignment to it of all other assets included
in
REMIC I, the receipt of which is hereby acknowledged. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee, pursuant to
the
written request of the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the Depositor,
the
Class
R-I
Interest
in
authorized denominations. The interests evidenced by the Class R-I Interest,
together with the REMIC I Regular Interests, constitute the entire beneficial
ownership interest in REMIC I. The rights of the Class R Certificateholders
(with respect to the Class R-I Interest) and REMIC II (as holder of the REMIC
I
Regular Interests) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Interest and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I Interest and the REMIC II Regular Interests, shall be as set forth in this
Agreement.
(b) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee, without
recourse, all the right, title and interest of the Depositor in and to the
assets described in the definition of REMIC I for the benefit of the Holders
of
the REMIC I Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-I Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC I and declares that
it holds and shall hold the same in trust for the exclusive use and benefit
of
the Holders of the REMIC I Regular Interests and the Class R Certificates (in
respect of the Class R-I Interest). The interests evidenced by the Class R-I
Interest, together with the REMIC I Regular Interests, constitute the entire
beneficial ownership interest in REMIC I.
(c) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest in and to the REMIC I Regular
Interests (which are uncertificated) and the Class R Certificates (in respect
of
the Class R-I Interest). The Trustee acknowledges receipt of the REMIC I Regular
Interests and declares that it holds and shall hold the same in trust for the
exclusive use and benefit of the Holders of the REMIC II Regular Interests
and
the Class R Certificates (in respect of the Class R-II Interest). The interests
evidenced by the Class R-II Interest, together with the REMIC II Regular
Interests, constitute the entire beneficial ownership interest in REMIC
II.
(d) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest in and to the REMIC II Regular
Interests (which are uncertificated) for the benefit of the Holders of the
Class
A Certificates, Subordinated Certificates, the Class IO Interest, the Class
C
Interest, the Class P Interest and the Class R Certificates (in respect of
the
Class R-III Interest). The Trustee acknowledges receipt of the REMIC II Regular
Interests and declares that it holds and shall hold the same in trust for the
exclusive use and benefit of the Holders of the Class
A
Certificates, Subordinated Certificates, the Class IO Interest, the Class C
Interest, the Class P Interest and
the
Class R Certificates (in respect of the Class R-III Interest). The interests
evidenced by the Class R-IV Interest, together with the Class A Certificates,
Subordinated Certificates, the Class IO Interest, the Class C Interest, the
Class P Interest, constitute the entire beneficial ownership interest in REMIC
III.
(e) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest in and to the Class C Interest (which
is uncertificated) for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-IV Interest). The
Trustee acknowledges receipt of the Class C Interest and declares that it holds
and shall hold the same in trust for the exclusive use and benefit of the
Holders of the Class C Certificates and the Class R-X Certificates (in respect
of the Class R-IV Interest). The interests evidenced by the Class R-IV Interest,
together with the Class C Certificates, constitute the entire beneficial
ownership interest in REMIC IV.
(f) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest in and to the Class P Interest (which
is uncertificated) for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-V Interest). The
Trustee acknowledges receipt of the Class P Interest and declares that it holds
and shall hold the same in trust for the exclusive use and benefit of the
Holders of the Class P Certificates and the Class R-X Certificates (in respect
of the Class R-V Interest). The interests evidenced by the Class R-V Interest,
together with the Class P Certificates, constitute the entire beneficial
ownership interest in REMIC V.
(g) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest in and to the Class IO Interest
(which is uncertificated) for the benefit of the Holders of the REMIC VI Regular
Interest SWAP IO (which is uncertificated) and the Class R-X Certificates (in
respect of the Class R-VI Interest). The Trustee acknowledges receipt of the
Class IO Interest and declares that it holds and shall hold the same in trust
for the exclusive use and benefit of the Holders of the REMIC VI Regular
Interest SWAP IO and the Class R-X Certificates (in respect of the Class R-VI
Interest). The interests evidenced by the Class R-VI Interest, together with
the
REMIC VI Regular Interest SWAP IO, constitute the entire beneficial ownership
interest in REMIC VI.
(h) The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and,
concurrently therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor or the Trustee has
executed, authenticated and delivered to or upon the order of the Depositor,
the
Class R Certificates in authorized denominations. The interests evidenced by
the
Class R and Class R-X Certificates, together with the REMIC I Regular Interests,
the REMIC II Regular Interests, the REMIC III Regular Interests, the REMIC
IV
Regular Interests, the REMIC V Regular Interests and REMIC VI Regular Interest
SWAP IO, constitute the entire beneficial ownership interest in REMIC I, REMIC
II, REMIC III, REMIC IV, REMIC V and REMIC VI.
Section
2.09 Covenants
of the Servicer.
The
Servicer hereby covenants to the Depositor and the Trustee as
follows:
(a) the
Servicer shall comply in the performance of its obligations under this Agreement
with all reasonable rules and requirements of the insurer under each Required
Insurance Policy; and
(b) no
written information, certificate of an officer, statement furnished in writing
or written report delivered to the Depositor, any affiliate of the Depositor,
the Trustee or the Supplemental Interest Trust Trustee and prepared by the
Servicer pursuant to this Agreement will contain any untrue statement of a
material fact or omit to state a material fact necessary to make such
information, certificate, statement, or report not misleading.
Section
2.10 Purposes
and Powers of the Trust
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) to
acquire and hold the Mortgage Loans and the other assets of the Trust Fund
and
the proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trustee and
the
Servicer shall not cause the Trust to engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement while any Certificate is outstanding, and this Section
2.10 may not be amended, without the consent of the Certificateholders
evidencing 66 2/3% or more of the aggregate Voting Rights of the
Certificates.
ARTICLE
III
Administration
and Servicing of
Mortgage Loans
Section
3.01 Servicer
to Service Mortgage Loans.
For
and
on behalf of the Certificateholders, the Servicer shall service and administer
the Mortgage Loans in accordance with this Agreement and the Servicing
Standard.
The
Servicer shall not make or permit any modification, waiver, or amendment of
any
term of any Mortgage Loan that would cause the Trust Fund to fail to qualify
as
a REMIC or result in the imposition of any tax under Section 860F(a) or Section
860G(d) of the Code.
Without
limiting the generality of the foregoing, the Servicer, in its own name or
in
the name of the Depositor and the Trustee, is hereby authorized and empowered
by
the Depositor and the Trustee, when the Servicer believes it appropriate in
its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders, or any of them, any instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor
or
the Trustee any documents requiring execution and delivery by either or both
of
them appropriate to enable the Servicer to service and administer the Mortgage
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of the
documents, the Depositor or the Trustee shall execute the documents and deliver
them to the Servicer.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name, when the Servicer believes
it appropriate in its best judgment to register any Mortgage Loan on the MERS®
System, or cause the removal from the registration of any Mortgage Loan on
the
MERS® System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In
accordance with and to the extent of the Servicing Standard, the Servicer shall
advance funds necessary to effect the payment of taxes and assessments on the
Mortgaged Properties, which advances shall be reimbursable in the first instance
from related collections from the Mortgagors pursuant to Section 3.07, and
further as provided in Section 3.09. The costs incurred by the Servicer in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Section
3.02 Reserved.
Section
3.03 Reserved.
Section
3.04 Reserved.
Section
3.05 Trustee
to Act as Servicer.
If
the
Servicer for any reason is no longer the Servicer hereunder (including because
of an Event of Default), the Trustee or its successor shall thereupon assume
all
of the rights and obligations of the Servicer hereunder arising thereafter,
except that the Trustee shall not be:
(i) liable
for losses of the Servicer pursuant to Section 3.10 or any acts or omissions
of
the predecessor Servicer hereunder,
(ii) obligated
to make Advances if it is prohibited from doing so by applicable
law,
(iii) obligated
to effectuate repurchases or substitutions of Mortgage Loans hereunder,
including repurchases or substitutions pursuant to Section 2.01, 2.02, 2.03
or
2.05,
(iv) responsible
for expenses of the Servicer pursuant to Section 2.03, or
(v) deemed
to
have made any representations and warranties of the Servicer hereunder. Any
assumption shall be subject to Section 7.02.
Notwithstanding
anything else in this Agreement to the contrary, in no event shall the Trustee
be liable for any servicing fee or for any differential in the amount of the
servicing fee paid under this Agreement and the amount necessary to induce
any
successor Servicer to act as successor Servicer under this Agreement and the
transactions provided for in this Agreement.
Section
3.06 Collection
of Mortgage Loan Payments; Servicing Accounts; Collection Account; Certificate
Account; Distribution Account; Excess Reserve Fund
Account.
(a) In
accordance with and to the extent of the Servicing Standard, the Servicer shall
make reasonable efforts in accordance with the customary and usual standards
of
practice of prudent mortgage servicers to collect all payments called for under
the Mortgage Loans to the extent the procedures are consistent with this
Agreement and any related Required Insurance Policy. Consistent with the
foregoing, the Servicer may in its discretion (i) waive any late payment charge
or, subject to Section 3.20, any Prepayment Charge or penalty interest in
connection with the prepayment of a Mortgage Loan, (ii) modify any delinquent
or
defaulted 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); provided, that such modification is consistent with
the
Servicing Standard and if in the Servicer’s determination such modification 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 of such Mortgage Loan; provided, however, that the Servicer
shall not initiate new lending to such Mortgagor through the Trust, and (iii)
extend the due dates for payments due on a Mortgage Note for a period not
greater than 125 days. However, the Servicer cannot extend the maturity of
any
Mortgage Loan past the date on which the final payment is due on the latest
maturing Mortgage Loan as of the Cut-off Date. In the event of any such
arrangement, the Servicer shall make Advances on the related Mortgage Loan
in
accordance with Section 4.01 during the scheduled period in accordance with
the
amortization schedule of the Mortgage Loan without modification thereof because
of the arrangements. The Servicer shall not be required to institute or join
in
litigation with respect to collection of any payment (whether under a Mortgage,
Mortgage Note, or otherwise or against any public or governmental authority
with
respect to a taking or condemnation) if it reasonably believes that enforcing
the provision of the Mortgage or other instrument pursuant to which the payment
is required is prohibited by applicable law. The Servicer shall not sell any
delinquent or defaulted Mortgage Loan.
(b) The
Servicer shall establish and maintain one or more Servicing Accounts into which
the Servicer shall deposit on a daily basis within one (1) Business Day of
receipt, the following payments and collections received by it in respect of
Mortgage Loans after the Cut-off Date (other than in respect of principal and
interest due on the Mortgage Loans by the Cut-off Date):
(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; and
(iii) all
Insurance Proceeds, Liquidation Proceeds and Subsequent Recoveries, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the Servicer’s normal servicing
procedures.
By
the
Determination Date in each calendar month, the 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 Servicer shall (a) withdraw such amounts from the
Servicing Account and (b) deposit such amounts in the Collection
Account.
(c) The
Servicer shall establish and maintain a segregated Collection Account into
which
the Servicer shall deposit, as and when required by paragraph (b) of this
Section 3.06, all amounts required to be deposited into the Collection Account
pursuant to that paragraph.
(d) The
Servicer shall establish and maintain a segregated Certificate Account into
which the Servicer shall deposit on a daily basis (i) within one (1) Business
Day of deposit in the Collection Account (in the case of items (i) through
(iii)
below) and (2) within one (1) Business Day of receipt (in the case of all other
items), except as otherwise specified herein, the following payments and
collections received by it in respect of Mortgage Loans after the Cut-off Date
(other than in respect of principal and interest due on the Mortgage Loans
by
the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all
payments on account of principal on the Mortgage Loans, including Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, net of the related
Servicing Fee;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the Servicer’s normal servicing
procedures;
(iv) [reserved];
(v) any
amounts required to be deposited by the Servicer pursuant to Sections 3.12
and
3.14;
(vi) all
Purchase Prices received from the Servicer or Seller and all Substitution
Adjustment Amounts;
(vii) all
Advances made by the Servicer pursuant to Section 4.01;
(viii) any
other
amounts required to be deposited hereunder; and
(ix) all
Prepayment Charges collected.
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for the Mortgage Loan, in addition to the monthly
payment remitted by the related Mortgagor, the Servicer shall cause funds to
be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount
of
interest that has accrued on the Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the Servicing Fee on that date.
The
foregoing requirements for remittance by the Servicer shall be exclusive.
Without limiting the generality of the foregoing, payments in the nature of
late
payment charges or assumption fees, if collected, need not be remitted by the
Servicer. If the Servicer remits any amount not required to be remitted, it
may
at any time withdraw that amount from the Certificate Account, any provision
herein to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The 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 Excess Reserve Fund Account, on behalf
of the Class C Certificateholder, to secure its limited recourse obligation
to
pay to the other Certificateholders Net WAC Cap Carry Forward
Amounts.
On
each
Distribution Date, the Trustee shall deposit the amount of any Net WAC Cap
Carry
Forward Amount for that date into the Excess Reserve Fund Account.
The
Trustee shall invest amounts held in the Excess Reserve Fund Account only in
Permitted Investments, which shall mature not later than the Business Day
preceding the next Distribution Date (except that if such Permitted Investment
is an obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than the next Distribution Date)
and, in each case, shall not be sold or disposed of before its maturity. The
Servicer shall direct the Trustee in writing with respect to investment of
amounts in the Excess Reserve Fund Account.
On
each
Distribution Date on which a Net WAC Cap Carry Forward Amount exists for any
Class of Certificates, the Trustee shall withdraw from the Excess Reserve Fund
Account amounts necessary to pay to the Class of Certificates the Net WAC Cap
Carry Forward Amount. Such payments shall be allocated to those Classes as
provided in Section 4.02(IV). Any Net WAC Cap Carry Forward Amounts paid by
the
Trustee to the Certificateholders shall be accounted for by the Trustee as
amounts distributed by REMIC III to the Holder of the Class C Interest and
by
REMIC IV to the Class C Certificateholder (and from the Class C
Certificateholder to the Excess Reserve Fund Account), for all federal income
tax purposes. In addition, the Trustee shall account for the Certificateholders’
rights to receive payments of Net WAC Cap Carry Forward Amounts as rights in
a
limited recourse interest rate cap contract written by the Class C
Certificateholder in favor of the other Certificateholders.
The
Trustee shall account for the Excess Reserve Fund Account as an outside reserve
fund within the meaning of Treasury Regulation Section 1.860G-2(h) and not
an
asset of any REMIC created pursuant to this Agreement. It is the intention
of
the parties hereto that, for federal and state income and state and local
franchise tax purposes, the Excess Reserve Fund Account be disregarded as an
entity separate from the Holder of the Class C Certificates unless and until
the
date when either (a) there is more than one Class C Certificateholder or (b)
any
Class of Certificates in addition to the Class C Certificates is recharacterized
as an equity interest in the Excess Reserve Fund Account for federal income
tax
purposes, in which case it is the intention of the parties hereto that, for
federal and state income and state and local franchise tax purposes, the Excess
Reserve Fund Account be treated as a partnership. The Trustee shall treat
amounts deposited into the Excess Reserve Fund Account as amounts distributed
by
REMIC III to the Holder of the Class C Interest and by REMIC IV to the Class
C
Certificateholder (and from the Class C Certificateholder to the Excess Reserve
Fund Account), for all federal income tax purposes. Accordingly, each Class
of
Certificates, other than the Class C Certificate, the Class P Certificate,
the
Class R Certificate and the Class R-X Certificate, will comprise two components
- a REMIC Regular Interest and an interest in a cap contract. The Trustee shall
allocate the issue price for a Class of Certificates between two components
for
purposes of determining the issue price of the REMIC Regular Interest component.
The Excess Reserve Fund Account will be part of the Trust but not part of any
REMIC and any payments to the Holders of the Class A and Subordinate
Certificates of Net WAC Cap Carry Forward Amounts will not be payments with
respect to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Excess Reserve Fund Account the amounts described above on each Distribution
Date as to which there is any Net WAC Cap Carry Forward Amount rather than
distributing such amount to the Class C Certificateholders. By accepting a
Class
C Certificate, each Class C Certificateholder further agrees that such direction
is given for good and valuable consideration, the receipt and sufficiency of
which is acknowledged by such acceptance.
For
federal tax return and information reporting, the right of the Holders of the
Class A Certificates and the Subordinate Certificates to receive payments from
the Excess Reserve Fund Account in respect of any Net WAC Cap Carry Forward
Amounts may have more than a de
minimis
value.
Notwithstanding
any provision contained in this Agreement, the Trustee shall not be required
to
make any payments from the Excess Reserve Fund Account except as expressly
stated in this Section 3.06(d).
(f) [Reserved].
(g) The
Trustee shall establish and maintain the Distribution Account on behalf of
the
Certificateholders. The
Trustee shall, promptly upon receipt, deposit in the Distribution Account and
retain therein the following:
(i) the
aggregate amount remitted by the Servicer to the Trustee pursuant to Section
3.09(a);
(ii) any
amount deposited by the Servicer pursuant to Section 3.06(g) in connection
with
any losses on Permitted Investments;
(iii) received
with respect to the termination of the Trust Fund pursuant to Section 9.01;
and
(iv) any
other
amounts deposited hereunder that are required to be deposited in the
Distribution Account.
If
the
Servicer remits any amount not required to be remitted, it may at any time
direct the Trustee in writing to withdraw that amount from the Distribution
Account, any provision herein to the contrary notwithstanding. The direction
may
be accomplished by delivering an Officer’s Certificate to the Trustee that
describes the amounts deposited in error in the Distribution Account. All funds
deposited in the Distribution Account shall be held by the Trustee in trust
for
the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.09. In no event shall the Trustee incur
liability for withdrawals from the Distribution Account at the direction of
the
Servicer.
(h) Each
institution at which the Certificate Account or the Distribution Account is
maintained shall invest the funds therein as directed in writing by the Servicer
in Permitted Investments, which shall mature not later than the second Business
Day preceding the related Distribution Account Deposit Date (except that if
the
Permitted Investment is an obligation of the institution that maintains the
account, then the Permitted Investment shall mature not later than the Business
Day preceding the Distribution Account Deposit Date) and shall not be sold
or
disposed of before its maturity. All Permitted Investments shall be made in
the
name of the Trustee, for the benefit of the Certificateholders. All income
realized from any investment of funds on deposit in the Certificate Account
and
the Distribution Account shall be for the benefit of the Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses on Permitted Investments in the Certificate Account
or
Distribution Account shall promptly be deposited by the Servicer in the
Certificate Account or the Distribution Account, respectively. The Trustee
shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Certificate Account or the
Distribution Account and made in accordance with this Section 3.06.
Notwithstanding the foregoing, if amounts remitted by the Servicer to the
Trustee pursuant to Section 3.09(a) for deposit in the Distribution Account
and
investment directions therefor are not received by the Trustee before 12:00
p.m.
(pacific time) on the Distribution Account Deposit Date, amounts on deposit
in
the Distribution Account shall remain uninvested.
(i)
[Reserved].
(j) The
Servicer shall notify the Trustee, the Seller, each Rating Agency, and the
Depositor of any proposed change of the location of the Certificate Account,
the
Collection Account, the Excess Reserve Fund Account or the Distribution Account
not later than 30 days and not more than 45 days before any change
thereof.
Section
3.07 Collection
of Taxes, Assessments, and Similar Items
Escrow
Accounts.
(a) To
the
extent required by the related Mortgage Note and not violative of current law,
the Servicer shall establish and maintain one or more accounts (each, an
“Escrow
Account”)
and
deposit and retain therein all collections from the Mortgagors (or Servicing
advances) for the payment of taxes, assessments, hazard insurance premiums
or
comparable items for the account of the Mortgagors. Nothing herein shall require
the Servicer to compel a Mortgagor to establish an Escrow Account in violation
of applicable law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse (without duplication)
the Servicer out of related collections for any payments made pursuant to
Sections 3.01 (with respect to taxes and assessments and insurance premiums)
and
3.10 (with respect to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account
or to
clear and terminate the Escrow Account at the termination of this Agreement
in
accordance with Section 9.01. The Escrow Accounts shall not be a part of the
Trust Fund.
(c) The
Servicer shall advance any payments referred to in Section 3.07(a) that are
not
timely paid by the Mortgagors on the date when the tax, premium or other cost
for which such payment is intended is due, but the Servicer shall be required
so
to advance only to the extent that such advances, in the good faith judgment
of
the Servicer, will be recoverable by the Servicer out of Insurance Proceeds,
Liquidation Proceeds, or otherwise.
Section
3.08 Access
to Certain Documentation and Information
Regarding
the Mortgage Loans.
The
Servicer shall afford the Depositor, the Trustee and the Supplemental Interest
Trust Trustee reasonable access to all records and documentation regarding
the
Mortgage Loans and all accounts, insurance information, and other matters
relating to this Agreement, such access being afforded without charge, but
only
upon reasonable request and during normal business hours at the office
designated by the Servicer.
Upon
reasonable advance notice in writing, the Servicer will provide to each
Certificateholder or Certificate Owner that is a savings and loan association,
bank, or insurance company certain reports and reasonable access to information
and documentation regarding the Mortgage Loans sufficient to permit the
Certificateholder or Certificate Owner to comply with applicable regulations
of
the OTS or other regulatory authorities with respect to investment in the
Certificates. The Servicer shall be entitled to be reimbursed by each such
Certificateholder or Certificate Owner for actual expenses incurred by the
Servicer in providing the reports and access.
Section
3.09 Permitted
Withdrawals from the Certificate Account, the distribution
Account and the Excess Reserve Fund Account.
(a) The
Servicer may (and, in the case of clause (ix) below, shall) from time to time
make withdrawals from the Certificate Account for the following
purposes:
(i) to
pay to
the Servicer (to the extent not previously retained) the servicing compensation
to which it is entitled pursuant to Section 3.15, and to pay to the Servicer,
as
additional servicing compensation, earnings on or investment income with respect
to funds in or credited to the Certificate Account;
(ii) to
reimburse the Servicer for unreimbursed Advances made by it, such right of
reimbursement pursuant to this subclause (ii) being limited to amounts received
on the Mortgage Loans in respect of which the Advance was made;
(iii) to
reimburse the Servicer for any Nonrecoverable Advance previously
made;
(iv) to
reimburse the Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Servicer for (a) unreimbursed Servicing Advances, such right
of
reimbursement pursuant to this sub-clause (a) made by it being limited to
amounts received on the Mortgage Loans in respect of which the Servicing Advance
was made that represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01, Section 3.07 or Section 3.10 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 thereof that has been purchased pursuant to Section 2.01, 2.02, 2.03
or
2.05, all amounts received thereon after the date of such purchase;
(vii) to
reimburse the Seller, the Servicer or the Depositor for expenses incurred by
any
of them and reimbursable pursuant to Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required to
be
deposited therein;
(ix) by
the
Distribution Account Deposit Date, to withdraw (1) the Servicer Remittance
Amount 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
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, to justify any withdrawal from the Certificate Account
pursuant to subclauses (i), (ii), (iv), (v), and (vi). Before making any
withdrawal from the Certificate Account pursuant to subclause (iii), the
Servicer shall deliver to the Trustee an Officer’s Certificate of a Servicing
Officer indicating the amount of any previous Advance determined by the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage Loans and
their respective portions of the Nonrecoverable Advance.
(b) The
Trustee shall withdraw funds from the Distribution Account for distributions
to
Certificateholders in the manner specified in this Agreement (and to withhold
from the amounts so withdrawn the amount of any taxes that it is authorized
to
withhold pursuant to the last paragraph of Section 8.11). In addition, the
Trustee may from time to time make withdrawals from the Distribution Account
for
the following purposes:
(i) to
pay to
itself the Trustee Fee for the related Distribution Date;
(ii) to
pay to
the Servicer as additional servicing compensation earnings on or investment
income with respect to funds in the Distribution Account;
(iii) to
withdraw and return to the Servicer any amount deposited in the Distribution
Account and not required to be deposited therein;
(iv) to
clear
and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 9.01; and
(v) to
make
distributions to the Supplemental Interest Trust, in accordance with Section
4.05.
(c) On
each
Distribution Date, the Trustee shall make withdrawals from the Excess Reserve
Fund Account for deposit in the Distribution Account of the amount required
pursuant to Section 3.06(d). Each institution at which the Excess Reserve Fund
Account is maintained shall invest the funds therein as directed in writing
by
the Servicer in Permitted Investments, which shall mature not later than the
second Business Day preceding the related Distribution Account Deposit Date
(except that if the Permitted Investment is an obligation of the institution
that maintains the account, then the Permitted Investment shall mature not
later
than the Business Day preceding the Distribution Account Deposit Date) and
shall
not be sold or disposed of before its maturity. All Permitted Investments shall
be made in the name of the Trustee, for the benefit of the Certificateholders.
All income realized from any investment of funds on deposit in the Excess
Reserve Fund Account shall be for the benefit of the Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses on Permitted Investments in the Excess Reserve Fund
Account shall promptly be deposited by the Servicer in the Excess Reserve Fund
Account. On the earlier of (i) the termination of this Agreement pursuant to
Section 9.01 and (ii) the Distribution Date on which all of the Certificates
(other than the Class C Certificates) are reduced to zero, any amount remaining
on deposit in the Excess Reserve Fund Account after giving effect to the
requirements of this section shall be withdrawn by the Trustee and paid to
the
Class C Certificateholders.
Section
3.10 Maintenance
of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The
Servicer shall maintain, for each Mortgage Loan, hazard insurance with extended
coverage in an amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing the Mortgage Loan; and (ii) the
greater of (y) the outstanding principal balance of the Mortgage Loan and (z)
an
amount such that the proceeds of the policy are sufficient to prevent the
related Mortgagor or the mortgagee from becoming a co-insurer.
Each
policy of standard hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. Any amounts collected
under the policies (other than the amounts to be applied to the restoration
or
repair of the related Mortgaged Property or amounts released to the Mortgagor
in
accordance with the Servicer’s normal servicing procedures) shall be deposited
in the Certificate Account. Any cost incurred in maintaining any insurance
shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added
to
the principal balance of the Mortgage Loan, notwithstanding that the Mortgage
Loan so permits. Such costs shall be recoverable by the Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to
be
required of any Mortgagor or maintained on property acquired in respect of
a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at
the
time of origination of the Mortgage Loan in a federally designated special
flood
hazard area and the area is participating in the national flood insurance
program, the Servicer shall maintain flood insurance for the Mortgage Loan.
The
flood insurance shall be in an amount equal to the least
of
(i) the
original principal balance of the related Mortgage Loan, (ii) the replacement
value of the improvements that are part of the Mortgaged Property and
(iii)
the maximum amount of flood insurance available for the related Mortgaged
Property under the national flood insurance program.
If
the
Servicer obtains and maintains a blanket policy insuring against hazard losses
on all of the Mortgage Loans, it shall have satisfied its obligations in the
first sentence of this Section 3.10. The policy may contain a deductible clause
on terms substantially equivalent to those commercially available and maintained
by comparable servicers. If the policy contains a deductible clause and a policy
complying with the first sentence of this Section 3.10 has not been maintained
on the related Mortgaged Property, and if a loss that would have been covered
by
the required policy occurs, the Servicer shall deposit in the Certificate
Account, without any right of reimbursement, the amount not otherwise payable
under the blanket policy because of the deductible clause. In connection with
its activities as Servicer of the Mortgage Loans, the Servicer agrees to
present, on behalf of itself, the Depositor, and the Trustee for the benefit
of
the Certificateholders claims under any blanket policy.
(b) The
Servicer shall not take any action that would result in non-coverage under
any
applicable Primary Insurance Policy of any loss that, but for the actions of
the
Servicer, would have been covered thereunder. The Servicer shall not cancel
or
refuse to renew any Primary Insurance Policy that is in effect at the date
of
the initial issuance of the Certificates and is required to be kept in force
hereunder unless the replacement Primary Insurance Policy for the canceled
or
non-renewed policy is maintained with a Qualified Insurer. The Servicer need
not
maintain any Primary Insurance Policy if maintaining the Primary Insurance
Policy is prohibited by applicable law. The Servicer agrees, to the extent
permitted by applicable law, to effect the timely payment of the premiums on
each Primary Insurance Policy, and any costs not otherwise recoverable shall
be
recoverable by the Servicer from the related liquidation proceeds. The Servicer
shall maintain for as long as each relevant Mortgage Loan is outstanding the
mortgage insurance associated with the Mortgage Loans identified on the Mortgage
Loan Schedule as having lender acquired mortgage insurance, and as to any other
Mortgage Loans the Servicer need not maintain any Primary Insurance Policy
with
respect to any Mortgage Loan with a Loan-to-Value Ratio less than or equal
to
80% as of any date of determination or, based on a new appraisal, the principal
balance of the Mortgage Loan represents 80% or less of the new Appraised
Value.
In
connection with its activities as Servicer of the Mortgage Loans, the Servicer
agrees to present, on behalf of itself, the Trustee and the Certificateholders,
claims to the insurer under any Primary Insurance Policies and, in this regard,
to take any reasonable action in accordance with the Servicing Standard
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Any amounts collected by the Servicer under any
Primary Insurance Policies shall be deposited in the Certificate Account or
the
Collection Account (as applicable).
Section
3.11 Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
(a) Except
as
otherwise provided in this Section 3.11, when any property subject to a Mortgage
has been conveyed by the Mortgagor, the Servicer shall to the extent that it
has
knowledge of the conveyance and in accordance with the Servicing Standard,
enforce any due-on-sale clause contained in any Mortgage Note or Mortgage,
to
the extent permitted under applicable law and governmental regulations, but
only
to the extent that enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Servicer
is not required to exercise these rights with respect to a Mortgage Loan if
the
Person to whom the related Mortgaged Property has been conveyed or is proposed
to be conveyed satisfies the conditions contained in the Mortgage Note and
Mortgage related thereto and the consent of the mortgagee under the Mortgage
Note or Mortgage is not otherwise so required under the Mortgage Note or
Mortgage as a condition to the transfer.
If
(i)
the Servicer is prohibited by law from enforcing any due-on-sale clause, (ii)
coverage under any Required Insurance Policy would be adversely affected, (iii)
the Mortgage Note does not include a due-on-sale clause or (iv) nonenforcement
is otherwise permitted hereunder, the Servicer is authorized, subject to Section
3.11(b), to take or enter into an assumption and modification agreement from
or
with the person to whom the property has been or is about to be conveyed,
pursuant to which the person becomes liable under the Mortgage Note and, unless
prohibited by applicable state law, the Mortgagor remains liable thereon. The
Mortgage Loan must continue to be covered (if so covered before the Servicer
enters into the agreement) by the applicable Required Insurance
Policies.
The
Servicer, subject to Section 3.11(b), is also authorized with the prior approval
of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with the Person, pursuant to which the
original Mortgagor is released from liability and the Person is substituted
as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.11 because of any transfer or assumption that the Servicer reasonably believes
it is restricted by law from preventing, for any reason whatsoever.
(b) Subject
to the Servicer’s duty to enforce any due-on-sale clause to the extent provided
in Section 3.11(a), in any case in which a Mortgaged Property has been conveyed
to a Person by a Mortgagor, and the Person is to enter into an assumption
agreement or modification agreement or supplement to the Mortgage Note or
Mortgage that requires the signature of the Trustee, or if an instrument of
release signed by the Trustee is required releasing the Mortgagor from liability
on the Mortgage Loan, the Servicer shall prepare and deliver to the Trustee
for
signature and shall direct the Trustee, in writing, to execute the assumption
agreement with the Person to whom the Mortgaged Property is to be conveyed,
and
the modification agreement or supplement to the Mortgage Note or Mortgage or
other instruments appropriate to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to the Person. In connection with
any
such assumption, no material term of the Mortgage Note may be
changed.
In
addition, the substitute Mortgagor and the Mortgaged Property must be acceptable
to the Servicer in accordance with its underwriting standards as then in effect.
Together with each substitution, assumption, or other agreement or instrument
delivered to the Trustee for execution by it, the Servicer shall deliver an
Officer’s Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met in connection therewith. The
Servicer shall notify the Trustee that any substitution or assumption agreement
has been completed by forwarding to the Trustee the original of the substitution
or assumption agreement, which in the case of the original shall be added to
the
related Mortgage File and shall, for all purposes, be considered a part of
the
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. The Servicer will retain any fee collected by
it
for entering into an assumption or substitution of liability agreement as
additional servicing compensation.
Section
3.12 Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
(a) The
Servicer shall use reasonable efforts in accordance with the Servicing Standard
to foreclose on or otherwise comparably convert the ownership of Mortgaged
Properties in respect of which the related Mortgage Loans have come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments. In connection with the foreclosure or other
conversion, the Servicer shall follow the Servicing Standard and shall follow
the requirements of the insurer under any Required Insurance
Policy.
Notwithstanding
the foregoing, the Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it determines (i) that the restoration or foreclosure will increase
the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself
of
restoration expenses and (ii) that restoration expenses will be recoverable
to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account). The Servicer shall be
responsible for all other costs and expenses incurred by it in any foreclosure
proceedings. The Servicer is entitled to reimbursement thereof from the
liquidation proceeds with respect to the related Mortgaged Property, as provided
in the definition of Liquidation Proceeds. If the Servicer has knowledge that
a
Mortgaged Property that the Servicer is contemplating acquiring in foreclosure
or by deed in lieu of foreclosure is located within one mile of any site listed
in the Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984
or
other site with environmental or hazardous waste risks known to the Servicer,
the Servicer will, before acquiring the Mortgaged Property, consider the risks
and only take action in accordance with its established environmental review
procedures. The Servicer shall not foreclose any Mortgaged Property or accept
a
deed in lieu of foreclosure for any Mortgaged Property if the Servicer has
actual knowledge or notice that the Mortgaged Property contains material
hazardous wastes or substances subject to the Hazardous Substance Clean Up
Bond
Act of 1984.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name shall be placed
on the title to the REO Property solely as the Trustee hereunder and not in
its
individual capacity. The Servicer shall ensure that the title to the REO
Property references this Agreement and the Trustee’s capacity hereunder.
Pursuant to its efforts to sell the REO Property, the Servicer shall either
itself or through an agent selected by the Servicer protect and conserve the
REO
Property in accordance with the Servicing Standard as the Servicer deems to
be
in the best interest of the Certificateholders for the period before the sale
of
the REO Property.
The
Servicer shall perform the tax reporting and withholding required by Sections
1445 and 6050J of the Code with respect to foreclosures and abandonments, the
tax reporting required by Section 6050H of the Code with respect to the receipt
of mortgage interest from individuals and, if required by Section 6050P of
the
Code with respect to the cancellation of indebtedness by certain financial
entities, the preparation of any required tax and information returns, in the
form required, and filed the same.
If
the
Trust Fund acquires any Mortgaged Property as aforesaid or otherwise in
connection with a default or imminent default on a Mortgage Loan, the REO
Property shall only be held temporarily, shall be actively marketed for sale,
and the Servicer shall dispose of the Mortgaged Property as soon as practicable,
and in any case before the end of the third calendar year following the calendar
year in which the Trust Fund acquires the property. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust Fund
shall be rented (or allowed to continue to be rented) or otherwise used for
the
production of income by or on behalf of the Trust Fund.
The
decision of the Servicer to foreclose on a defaulted Mortgage Loan shall be
subject to a determination by the Servicer that the proceeds of the foreclosure
would exceed the costs and expenses of bringing a foreclosure proceeding. The
proceeds received from the maintenance of any REO Properties, net of
reimbursement to the Servicer for expenses 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 proceeds received during any calendar
month exceed the amount attributable to amortizing principal and accrued
interest at the related Mortgage Rate on the related Mortgage Loan for the
calendar month, the excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any proceeds from
an REO Property, will be applied in the following order of
priority:
first,
to
reimburse the Servicer for any related unreimbursed Servicing Advances or
Servicing Fees or for any unreimbursed Advances, as applicable;
second,
to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Servicer pursuant to Section
3.09(a)(ii) that related to the Mortgage Loan;
third,
to
accrued and unpaid interest (to the extent no Advance has been made for such
amount or an Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate through the Remittance Period
preceding the Distribution Date on which the amounts are required to be
distributed; and
fourth,
as a
recovery of principal of the Mortgage Loan. The Servicer will retain any Excess
Proceeds from the liquidation of a Liquidated Mortgage Loan as additional
servicing compensation pursuant to Section 3.15.
(b) [Reserved].
(c) The
Servicer may agree to a modification of any Mortgage Loan at the request of
the
related Mortgagor if (i) the modification is in lieu of a refinancing and the
Mortgage Rate on the relevant Mortgage Loan, as modified, is approximately
a
prevailing market rate for newly-originated mortgage loans having similar terms
and (ii) the Servicer purchases the relevant Mortgage Loan from the Trust Fund
as described below. Upon the agreement of the Servicer to modify a Mortgage
Loan
in accordance with the preceding sentence, the Servicer shall purchase that
Mortgage Loan and all interest of the Trustee in that Mortgage Loan shall
automatically be deemed transferred and assigned to the Servicer and all
benefits and burdens of ownership thereof, including the right to accrued
interest thereon from the date of purchase and the risk of default thereon,
shall pass to the Servicer. The Servicer shall promptly deliver to the Trustee
a
certification of a Servicing Officer to the effect that all requirements of
the
first paragraph of this subsection (c) have been satisfied with respect to
the
Mortgage Loan to be repurchased pursuant to this paragraph.
The
Servicer shall deposit the Purchase Price for any Mortgage Loan repurchased
pursuant to this Section 3.12 in the Certificate Account pursuant to Section
3.06 within one (1) Business Day after the purchase of the Mortgage Loan. Upon
receipt by the Trustee of written notification of any such deposit signed by
a
Servicing Officer, the Trustee shall release to the Servicer the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the
Servicer any Mortgage Loan previously transferred and assigned pursuant
hereto.
The
Servicer covenants and agrees to indemnify the Trust Fund against any liability
for any taxes (including prohibited transaction taxes) and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as
a
result of any modification of a Mortgage Loan effected pursuant to this Section
3.12 or any purchase of a Mortgage Loan by the Servicer in connection with
a
modification (but such obligation shall not prevent the Servicer or any other
appropriate Person from contesting any such tax in appropriate proceedings
and
shall not prevent the Servicer from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and
penalties, together with interest thereon, is refunded to the Trust Fund or
the
Servicer.
Section
3.13 [Reserved].
Section
3.14 Trustee
to Cooperate; Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Trustee by delivering
a
“Request for Release” substantially in the form of Exhibit N. Upon receipt of
the request, the Trustee shall promptly release the related Mortgage File to
the
Servicer, and the Trustee shall at the Servicer’s direction execute and deliver
to the Servicer the request for reconveyance, deed of reconveyance, or release
or satisfaction of mortgage or such instrument releasing the lien of the
Mortgage in each case provided by the Servicer, together with the Mortgage
Note
with written evidence of cancellation thereon. Expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the related Mortgagor.
From
time
to time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Trustee shall,
upon delivery to the Trustee of a Request for Release in the form of Exhibit
M
signed by a Servicing Officer, release the Mortgage File to the Servicer or
its
designee. Subject to the further limitations stated below, the Servicer shall
cause the Mortgage File or documents so released to be returned to the Trustee
when the need therefor by the Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Certificate
Account, in which case the Servicer shall deliver to the Trustee a Request
for
Release in the form of Exhibit N, signed by a Servicing Officer.
If
the
Servicer at any time seeks to initiate a foreclosure proceeding in respect
of
any Mortgaged Property as authorized by this Agreement, the Servicer shall
deliver to the Trustee, for signature, as appropriate, any court pleadings,
requests for trustee’s sale, or other documents necessary to effectuate such
foreclosure or any legal action brought to obtain judgment against the Mortgagor
on the Mortgage Note or the Mortgage or to obtain a deficiency judgment or
to
enforce any other remedies or rights provided by the Mortgage Note or the
Mortgage or otherwise available at law or in equity.
Section
3.15 Documents,
Records, and Funds in Possession of the Servicer to be Held for the
Trustee.
The
Servicer shall account fully to the Trustee for any funds it receives or
otherwise collects as Liquidation Proceeds or Insurance Proceeds in respect
of
any Mortgage Loan. All Mortgage Files and funds collected or held by, or under
the control of, the Servicer in respect of any Mortgage Loans, whether from
the
collection of principal and interest payments or from Liquidation Proceeds,
including any funds on deposit in the Certificate Account, shall be held by
the
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions of
this
Agreement. The Servicer also agrees that it shall not create, incur or subject
any Mortgage File or any funds that are deposited in the Certificate Account,
the Collection Account, the Distribution Account or any Escrow Account, or
any
funds that otherwise are or may become due or payable to the Trustee for the
benefit of the Certificateholders, to any claim, lien, security interest,
judgment, levy, writ of attachment, or other encumbrance, or assert by legal
action or otherwise any claim or right of setoff against any Mortgage File
or
any funds collected on, or in connection with, a Mortgage Loan, except, however,
that the Servicer shall be entitled to set off against and deduct from any
such
funds any amounts that are properly due and payable to the Servicer under this
Agreement.
Section
3.16 Servicing
Compensation.
As
compensation for its activities hereunder, the 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 aggregate Servicing Fee payable to the
Servicer shall be reduced by the lesser
of
the
aggregate of the Prepayment Interest Shortfalls with respect to the Distribution
Date and
the
aggregate Compensating Interest for the Distribution Date.
Additional
servicing compensation in the form of Prepayment Interest Excess, Excess
Proceeds, assumption fees, late payment charges and all income and gain net
of
any losses realized from Permitted Investments shall be retained by the Servicer
to the extent not required to be deposited in the Certificate Account pursuant
to Section 3.06. The Servicer shall be required to pay all expenses incurred
by
it in connection with its servicing activities hereunder (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
3.17 Access
to Certain Documentation.
The
Servicer shall provide to the OTS and the FDIC and to comparable regulatory
authorities supervising the Certificateholders and Certificate Owners and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Access shall be afforded
without charge, but only upon reasonable prior written request and during normal
business hours at the offices designated by the Servicer. Nothing in this
Section 3.17 shall limit the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.17 as a result of such obligation shall not constitute a breach of this
Section 3.17.
Section
3.18 Annual
Statement as to Compliance.
The
Servicer shall deliver to the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx), the Depositor and the Rating Agencies on or before
March 15 of each year, commencing in 2007, an officer’s certificate, certifying
that with respect to the period ending December 31st of the prior year: (i)
the
Servicer or such Servicing Officer, as applicable, has reviewed the activities
of the Servicer during the preceding calendar year or portion thereof and its
performance under this Agreement and (ii) to the best of the Servicer’s or such
Servicing Officer’s knowledge, as applicable, based on such review, the Servicer
has performed and fulfilled its duties, responsibilities and obligations under
this Agreement in all material respects throughout such year, or, if there
has
been a default in the fulfillment of any such duties, responsibilities or
obligations, specifying each such default known to such Servicing Officer and
the nature and status thereof. Copies of any such statement shall be provided
by
the Trustee to any Certificateholder and to any Person identified to the Trustee
as a prospective transferee of a Certificate, upon request at the expense of
the
requesting party, provided such statement is delivered by the Servicer to the
Trustee. In addition to the foregoing, the Servicer will, to the extent
reasonable, give any other servicing information required by the Commission
pursuant to applicable law.
Section
3.19 Assessments
of Compliance and Attestation Reports.
The
Servicer shall service and administer the Mortgage Loans in accordance with
all
applicable requirements of the Servicing Criteria (as set forth in Exhibit
R
hereto). Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of Regulation AB, the Servicer shall deliver to the Trustee via electronic
mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the Depositor prior to (x) March 15, 2007
and
(y) unless and until a Form 15 Suspension Notice shall have been filed, prior
to
March 15th of each year thereafter, a report regarding the Servicer’s assessment
of compliance (an “Assessment of Compliance”) with the Servicing Criteria during
the preceding calendar year. The Assessment of Compliance must be reasonably
satisfactory to the Depositor, and as set forth in Regulation AB, the Assessment
of Compliance must contain the following:
(i) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
(ii) A
statement by such officer that such officer used the Servicing Criteria, and
which will also be attached to the Assessment of Compliance, to assess
compliance with the Servicing Criteria applicable to the Servicer;
(iii) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(iv) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(v) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit R hereto which are indicated as applicable to the Servicer.
Prior
to
(x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, the Servicer
shall
furnish to the Trustee and the Depositor a report (an “Attestation Report”) by a
registered public accounting firm that attests to, and reports on, the
Assessment of Compliance made by the Servicer, as required by Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which Attestation
Report must be made in accordance with standards for attestation reports issued
or adopted by the Public Company Accounting Oversight Board.
The
Servicer shall cause and any sub-servicer, and each subcontractor determined
by
the Servicer to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report as and when provided
above.
Such
Assessment of Compliance, as to any Sub-Servicer, shall at a minimum address
each of the Servicing Criteria specified on Exhibit R hereto which are indicated
as applicable to any “primary servicer.” Notwithstanding the foregoing, as to
any subcontractor, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the Trust
Fund.
If
the
Servicer cannot deliver any Assessment of Compliance or Attestation Report
by
March 15th of such year, the Depositor, at its sole option, may permit a cure
period for the Servicer to deliver such Assessment of Compliance or Attestation
Report, but in no event later than March 25th of such year.
Failure
of the Servicer to timely comply with this Section 3.19 may be deemed an Event
of Default. The Trustee shall, with the consent of the Depositor, in addition
to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, give notice
to Certificateholders that they have ten Business Days to object. If no such
objection is received, the Trustee shall immediately terminate all the rights
and obligations of the Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof without compensating the Servicer for the same.
This paragraph shall supersede any other provision in this Agreement or any
other agreement to the contrary.
The
Trustee shall, prior to (x) March 15, 2007 and (y) unless and until a Form
15
Suspension Notice shall have been filed, prior to March 15th of each year
thereafter, shall also provide an Assessment of Compliance and Attestation
Report, as and when provided above, which shall at a minimum address each of
the
Servicing Criteria specified on Exhibit R hereto which are indicated as
applicable to the “trustee.”
Section
3.20 Errors
and Omissions Insurance; Fidelity Bonds.
The
Servicer shall obtain and maintain in force (a) policies of insurance covering
errors and omissions in the performance of its obligations as Servicer hereunder
and (b) a fidelity bond covering its officers, employees, and agents. Each
policy and bond shall, together, comply with the requirements from time to
time
of FNMA or FHLMC for persons performing servicing for mortgage loans purchased
by FNMA or FHLMC. The Servicer shall provide the Trustee, upon request, with
a
certificate of insurance relating to the insurance policies and fidelity bond.
If any policy or bond ceases to be in effect, the 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
3.21 [Reserved].
Section
3.22 Prepayment
Charges.
(a) The
Servicer shall not waive any part of any Prepayment Charge unless the waiver
relates to a default or a reasonably foreseeable default, the collection of
any
Prepayment Charge would violate any relevant law or regulation or the waiving
of
the Prepayment Charge would otherwise benefit the Trust Fund and it is expected
that the waiver would maximize recovery of total proceeds taking into account
the value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any waiver
of a Prepayment Charge in connection with a refinancing of a Mortgage Loan
that
is related to a default or a reasonably foreseeable default). The Servicer
shall
not waive a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is not related to a default or a reasonably foreseeable
default.
(b) The
Seller represents and warrants to the Depositor and the Trustee, as of the
Closing Date, that the information in the Prepayment Charge Schedule (including
the attached prepayment charge summary) is complete and accurate in all material
respects at the dates as of which the information is furnished and each
Prepayment Charge is permissible and enforceable in accordance with its terms
under applicable state law.
(c) Upon
discovery by the Seller or a Responsible Officer of the Trustee of a breach
of
the foregoing clause (b) that materially and adversely affects right of the
Holders of the Class P Certificate to any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other parties.
Within sixty (60) days of the earlier of discovery by the Servicer or receipt
of
notice by the Servicer of breach, the Servicer shall cure the breach in all
material respects or shall pay into the Collection Account the amount of the
scheduled Prepayment Charge, less any amount previously collected and paid
by
the Servicer into the Collection Account. If the covenant made by the Servicer
in clause (a) above is breached, the Servicer must pay into the Collection
Account the amount of the waived Prepayment Charge.
Section
3.23 [Reserved].
Section
3.24 [Reserved]
Section
3.25 Commission
Reporting
(a) Unless
and until a Form 15 Suspension Notice shall have been filed, the Trustee shall,
within 15 days after each Distribution Date and in accordance with industry
standards, file with the Commission via the Electronic Data Gathering and
Retrieval System (“XXXXX”), a Distribution Report on Form 10-D (the
“Distribution Report”) with a copy of the Monthly Statement to be furnished by
the Trustee to the Certificateholders for such Distribution Date and, if
applicable, including the information required by each of the items set forth
in
Part II thereof, subject to the receipt of the information set forth in (f)
below, in the case of information not required to be provided by the
Trustee.
(b)
Except
with respect to the Distribution Report to be filed following the first
Distribution Date, the Trustee shall prepare each Distribution Report and,
no
later than 5 Business Days prior to the date on which such Distribution Report
is required to be filed, deliver a copy of such Distribution Report to the
Depositor for review. No later than the Business Day following the receipt
thereof, the Depositor shall notify the Trustee of any changes to made to the
Distribution Report. The Trustee shall make any changes thereto requested by
the
Depositor and deliver the final Distribution Report to the Depositor for
signature no later than three Business Days prior to the date on which such
Distribution Report must be filed by the Trustee in accordance with clause
(a)
above. The Depositor shall execute the final Distribution Report and deliver
the
same to the Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) or
facsimile no later than the Business Day following receipt of the same (which,
unless not received within such time frame from the Trustee, shall be no later
than two Business Days prior to the date on which the Distribution Report is
required to be filed), with an original executed hard copy to follow by
overnight mail. With respect to the Distribution Report to be filed following
the first Distribution Date, the Depositor shall prepare and execute such
Distribution Report and, no later than 5 Business Days prior to the date on
which such Distribution Report is required to be filed, deliver a copy of such
Distribution Report to the Trustee. The Trustee shall attach thereto the Monthly
Statement furnished by the Trustee to the Certificateholders for such
Distribution Date and file such Distribution Report in accordance with clause
(a) above.
(c) The
Depositor shall prepare and file Current Reports on Form 8-K, as and when
required.
(d) Prior
to
January 30th of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with industry standards, file
a
Form 15 Suspension Notice with respect to the Trust Fund.
(e)
Prior to
(x) March 15, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, the Servicer
shall
provide the Trustee with an Annual Compliance Statement, together with a copy
of
the Assessment of Compliance and Attestation Report to be delivered by the
Servicer pursuant to Sections 3.18 and 3.19. Prior to (x) March 31, 2007 and
(y)
unless and until a Form 15 Suspension Notice shall have been filed, March 31st
of each year thereafter, the Trustee shall, subject to subsection (f) below,
file a Form 10-K, with respect to the Trust Fund. The Trustee shall prepare
each
Form 10-K and, no later than 5 Business Days prior to the date on which such
Form 10-K is required to be filed, deliver a copy of such Form 10-K to the
Depositor for review. No later than the Business Day following the receipt
thereof, the Depositor shall notify the Trustee of any changes to made to the
Form 10-K. The Trustee shall make any changes thereto requested by the Depositor
and deliver the final Form 10-K to the Depositor for signature no later than
three Business Days prior to the date on which such Form 10-K must be filed
by
the Trustee in accordance with this clause (e). The Depositor shall execute
the
final Form 10-K and deliver the same to the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) or facsimile no later than Business Day following
receipt of the same (which, unless not received within such time frame from
the
Trustee, shall be no later than two Business Days prior to the date on which
the
From 10-K is required to be filed), with an original executed hard copy to
follow by overnight mail. Such Form 10-K shall include the Assessment of
Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Servicer pursuant to Sections 3.18 and 3.19 and
a
certification in the form attached hereto as Exhibit O-1 (the “Depositor
Certification”), which shall be signed by the senior officer of the Depositor in
charge of securitization.
(f) As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Trustee's or Depositor’s obligation to include the information in
the applicable report is subject to receipt from the entity that is indicated
in
Exhibit S as the responsible party for providing that information, if other
than
the Trustee or the Depositor, as applicable, as and when required as described
above. Each of the Trustee, the Servicer and the Depositor, as applicable,
hereby agree to notify and provide to the Trustee and the Depositor all
information that is required to be included in any Form 10-D, Form 8-K or Form
10-K, with respect to which that entity is indicated in Exhibit S as the
responsible party for providing that information. In the case of information
to
be included in the From 10-D, such information shall be delivered to the Trustee
no later than no later than 5 calendar days following each Distribution Date.
In
the case of information to be included in the Form 8-K, such information shall
be delivered to the Depositor no later than no later 2 Business Days following
the occurrence of a reportable event. In the case of information to be included
in the From 10-K, such information, other than the documentation provided
pursuant to Sections 3.18, 3.19 and 3.25(f), shall be delivered to the Trustee
no later than no later than (x) March 1, 2007 and (y) unless and until a Form
15
Suspension Notice shall have been filed, March 1st of each year thereafter.
The
Servicer shall be responsible for determining the pool concentration applicable
to any subservicer or originator at any time, for purposes of disclosure as
required by Items 1117 and 1119 of Regulation AB. The Trustee shall provide
electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge
to any Certificateholder upon request.
(g) The
Trustee shall sign a certification (in the form attached hereto as Exhibit
O-2)
for the benefit of the Depositor and its officers, directors and Affiliates.
The
Trustee's certification shall be delivered to the Depositor by no later than
March 18th of each year (or if such day is not a Business Day, the immediately
preceding Business Day) and the Depositor shall deliver the Depositor
Certification to the Trustee for filing no later than March 20th of each year
(or if such day is not a Business Day, the immediately preceding Business
Day).
(h) The
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) a breach of the
Trustee’s obligations under this Section 3.25, Section 3.19 or (ii) any
material misstatement or omission contained in any information provided by
the
Trustee including, without limitation, in the certification provided by the
Trustee in the form of Exhibit O-2 or the Assessment of Compliance provided
pursuant to Section 3.19. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then the Trustee,
in
connection with (i) a breach of the Trustee’s obligations under this
Section 3.25, Section 3.19 or (ii) any material misstatement or omission
contained in any information provided by the Trustee including, without
limitation, in the certification provided by the Trustee in the form of Exhibit
O-2, or in the Assessment of Compliance or Attestation report provided pursuant
to Section 3.19, agrees that it shall contribute to the amount paid or payable
by the Depositor as a result of the losses, claims, damages or liabilities
of
the Depositor in such proportion as is appropriate to reflect the relative
fault
of the Depositor on the one hand and the Trustee on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
The
Servicer shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon (i) a breach of the Servicer’s obligations under Sections
3.18, 3.19 or 3.25 or (ii) any material misstatement or omission contained
in
any information provided by the Servicer including, without limitation, in
the
information provided pursuant to Sections 3.18 and 3.19. This indemnification
shall survive the termination of this Agreement or the termination of any party
to this Agreement.
The
Depositor shall indemnify and hold harmless the Servicer, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon (i) a breach of the Depositor’s obligations under this
Section 3.25 or (ii) any material misstatement or omission contained in any
information provided by the Depositor.
(i) The
Trustee will have no duty or liability to verify the accuracy or sufficiency
of
any information not prepared by it included in any Form 10-D, Form
10-K or Form 8-K. The Trustee shall have no liability with
respect to any failure to properly prepare or file any Form 10-D or Form 10-K
resulting from or relating to the Trustee's inability or failure to obtain
any
information in a timely manner from the party responsible for delivery of such
disclosure information. The Trustee shall have no liability with respect
to any failure to properly file any Form 10-D or 10-K resulting from or relating
to the Depositor's failure to timely comply with the provisions of this
section. Nothing herein shall be construed to require the Trustee or any
officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or
Form
8-K. Copies of all reports filed by the Trustee under the Exchange Act shall
be
sent to the Depositor electronically or at the addressed set forth in Section
11.05. Fees and expenses incurred by the Trustee in connection with this Section
3.25 shall not be reimbursable from the Trust Fund.
(j) Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of any executed report, statement or information.
(k) To
the
extent that, following the Closing Date, the Depositor certifies that reports
and certifications differing from those required under this Section 3.25 are
necessary to comply with the reporting requirements under the Exchange Act,
the
parties hereto hereby agree that each will reasonably cooperate to amend the
provisions of this Section 3.25(b) in order to comply with such amended
reporting requirements and such amendment of this Section 3.25. Any such
amendment may result in the reduction of the reports executed by and filed
on
behalf of the Depositor under the Exchange Act. Notwithstanding the foregoing,
the Trustee shall not be obligated to enter into any amendment pursuant to
this
Section that adversely affects its obligations and immunities under this
Agreement.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.18, 3.19
and
this Section 3.25 of this Agreement is to facilitate compliance by the Depositor
with the provisions of Regulation AB. Therefore, each of the parties agree
that
(a) the obligations of the parties hereunder shall be interpreted in such a
manner as to accomplish that purpose, (b) the parties’ obligations hereunder
will be supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance in respect of the requirements
of
Regulation AB, (c) the parties shall comply with reasonable requests made by
the
Depositor for delivery of additional or different information as the Depositor
may determine in good faith is necessary to comply with the provisions of
Regulation AB, and (d) no amendment of this Agreement shall be required to
effect any such changes in the parties’ obligations as are necessary to
accommodate evolving interpretations of the provisions of Regulation
AB.
ARTICLE
IV
DISTRIBUTIONS
AND ADVANCES BY THE SERVICER
Section
4.01 Advances.
(a) The
Servicer shall determine by each Servicer Advance Date whether it is required
to
make an Advance pursuant to the definition of Advance. If the Servicer
determines it is required to make an Advance, it shall, by the Servicer Advance
Date, either (i) deposit into the Certificate Account the Advance or (ii) make
an appropriate entry in its records relating to the Certificate Account that
any
Amount Held for Future Distribution has been used by the Servicer in discharge
of its obligation to make the Advance. The Servicer shall replace any funds
so
applied by making a deposit in the Certificate Account no later than the close
of business on the next Servicer Advance Date. The Servicer shall be reimbursed
from the Certificate Account for all Advances of its own funds made pursuant
to
this Section 4.01, as provided in Section 3.09. The obligation to make Advances
with respect to any Mortgage Loan shall continue if the Mortgage Loan has been
foreclosed or otherwise terminated and the related Mortgaged Property has not
been liquidated. The Servicer shall inform the Trustee of the amount of the
Advance to be made on each Servicer Advance Date no later than the second
Business Day before the related Distribution Date.
(b) If
the
Servicer determines that it will be unable to comply with its obligation to
make
the Advances as and when described in the second sentence of Section 4.01(a),
it
shall use its best efforts to give written notice thereof to the Trustee (each
such notice, an “Advance
Notice”;
and
such notice may be given by telecopy), not later than 3:00 p.m., (New York
time), on the Business Day immediately preceding the related Servicer Advance
Date, specifying the amount that it will be unable to deposit (each such amount,
an “Advance
Deficiency”)
and
certifying that such Advance Deficiency constitutes the amount of an Advance
hereunder and that such Advance would not be a Nonrecoverable Advance. If the
Trustee receives an Advance Notice on or before 3:00 p.m., (New York time)
on a
Servicer Advance Date, the Trustee is entitled to immediately terminate the
Servicer under Section 7.01, and shall, not later than 3:00 p.m., (New York
time), on the related Distribution Date, deposit in the Distribution Account
an
amount equal to the Advance Deficiency identified in such Advance Notice unless
it is prohibited from so doing by applicable law. Notwithstanding the foregoing,
the Trustee shall not be required to make such deposit if the Trustee shall
have
received written notification from the Servicer that the Servicer has deposited
or caused to be deposited in the Certificate Account an amount equal to such
Advance Deficiency by 3:00 p.m. (New York time) on the related Distribution
Date. If the Trustee has not terminated the Servicer, the Servicer shall
reimburse the Trustee for the amount of any such Advance Deficiency (including
interest at the Prime Rate published in The
Wall Street Journal
on the
day of such reimbursement on such amount), made by the Trustee pursuant to
this
Section 4.01(b), not later than the second day following the related Servicer
Advance Date. In the event that the Servicer does not reimburse the Trustee
in
accordance with the requirements of the preceding sentence, the Trustee shall
immediately (a) terminate all of the rights and obligations of the Servicer
under this Agreement in accordance with Section 7.01 and (b) subject to the
limitations set forth in Section 3.05, assume all of the rights and obligations
of the Servicer hereunder.
(c) The
Servicer shall, not later than the close of business on the Business Day
immediately preceding each Servicer Advance Date, deliver to the Trustee a
report (in form and substance reasonably satisfactory to the Trustee) that
indicates (i) the Mortgage Loans with respect to which the Servicer has
determined that the related Scheduled Payments should be advanced and (ii)
the
amount of the related Scheduled Payments. The Servicer shall deliver to the
Trustee on the related Servicer Advance Date an Officer’s Certificate of a
Servicing Officer indicating the amount of any proposed Advance determined
by
the Servicer to be a Nonrecoverable Advance.
Section
4.02 Priorities
of Distribution.
(I) On
each
Distribution Date, Net Swap Payments and Swap Termination Payments (other than
Swap Termination Payments resulting from a Swap Provider Trigger Event) payable
by the Supplemental Interest Trust to the Swap Provider pursuant to the Swap
Agreement shall be withdrawn by the Trustee from amounts on deposit in the
Distribution Account, prior to any distributions to the Certificateholders.
On
each Distribution Date, such amounts will be remitted to the Supplemental
Interest Trust, first to make any Net Swap Payment owed to the Swap Provider
pursuant to the Swap Agreement for such Distribution Date, and second to make
any Swap Termination Payment (not due to a Swap Provider Trigger Event) owed
to
the Swap Provider pursuant to the Swap Agreement for such Distribution Date.
The
Trustee will then make the disbursements and transfers from amounts then on
deposit in the Distribution Account in the following order of priority and,
in
each case, to the extent of Available Funds:
(a) Interest
Distributions.
(i) to
the
Class A
Certificates,
the
Accrued Certificate Interest Distribution Amount and any Unpaid Interest Amount
for such Class;
(ii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class B-1, Class B-2 and Class B-3
Certificates, in that order, the Accrued Certificate Interest Distribution
Amount for each such class; and
(iii) Any
Interest Remittance Amount remaining undistributed pursuant to clauses (i)
and
(ii) above will be used in determining the amount of Total Monthly Excess
Spread, if any, for such Distribution Date.
(b) Principal
Distributions.
(i) with
respect to each Distribution Date (x) before the Stepdown Date or (y) if a
Trigger Event is in effect, distributions in respect of principal, as
follows:
(A) to
the
Class A Certificates, until the Class Certificate Balance thereof has been
reduced to zero;
and
(B) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class M-10, Class B-1, Class B-2 and Class B-3
Certificates, in that order, until their respective Class Certificate Balances
have been reduced to zero.
(ii) with
respect to each Distribution Date (x) on and after the Stepdown Date and (y)
as
long as a Trigger Event is not in effect, distribution in respect of principal
as follows:
(A) to
the
Class A Certificates, the Class A Principal Distribution Amount, until the
Class
Certificate Balance thereof has been reduced to zero;
(B) sequentially,
to the Class M-1 Certificates, the Class M-1 Principal Distribution Amount;
to
the Class M-2 Certificates, the Class M-2 Principal Distribution Amount; to
the
Class M-3 Certificates, the Class M-3 Principal Distribution Amount; to the
Class M-4 Certificates, the Class M-4 Principal Distribution Amount; to the
Class M-5 Certificates, the Class M-5 Principal Distribution Amount; to the
Class M-6 Certificates, the Class M-6 Principal Distribution Amount; to the
Class M-7 Certificates, the Class M-7 Principal Distribution Amount; to the
Class M-8 Certificates, the Class M-8 Principal Distribution Amount; to the
Class M-9 Certificates, the Class M-9 Principal Distribution Amount; to the
Class M-10 Certificates, the Class M-10 Principal Distribution Amount; to the
Class B-1 Certificates, the Class B-1 Principal Distribution Amount; to the
Class B-2 Certificates, the Class B-2 Principal Distribution Amount; and to
the
Class B-3 Certificates, the Class B-3 Principal Distribution Amount, in that
order, in each case until their respective Class Certificate Balances have
been
reduced to zero.
(c) Total
Monthly Excess Spread Distributions.
Any
amount of Available Funds remaining after the distributions in clauses (a)
and
(b) above shall be distributed in the following order of priority with respect
to the Certificates:
(i) to
fund
the Extra Principal Distribution Amount for such Distribution Date to be
distributed as a component of the Principal Distribution Amount as described
in
clause (b) above;
(ii) to
the
holders of the Class M-1 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(iii) to
the
holders of the Class M-2 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(iv) to
the
holders of the Class M-3 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(v) to
the
holders of the Class M-4 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(vi) to
the
holders of the Class M-5 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(vii) to
the
holders of the Class M-6 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(viii) to
the
holders of the Class M-7 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(ix) to
the
holders of the Class M-8 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(x) to
the
holders of the Class M-9 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(xi) to
the
holders of the Class M-10 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(xii) to
the
holders of the Class B-1 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that Class;
(xiii) to
the
holders of the Class B-2 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(xiv) to
the
holders of the Class B-3 Certificates, first any Unpaid Interest Amounts
for that Class and second any Unpaid Realized Loss Amount for that
Class;
(xv) to
the
Excess Reserve Fund Account, the aggregate amount of any Net WAC Cap Carry
Forward Amounts for such Distribution Date to be distributed in the order and
priority described under Section 4.02(III);
(xvi) to
the
Swap Provider, any Swap Termination Payments resulting from an event of default
or certain termination events with respect to the Swap Provider (to the extent
not paid by the Supplemental Interest Trust Trustee from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee);
(xvii) to
the
holders of the Class B-3 Certificates until the Class Certificate Balance
thereof has been reduced to zero;
(xviii) to
the
holders of the Class B-2 Certificates until the Class Certificate Balance
thereof has been reduced to zero;
(xix) to
the
holders of the Class B-1 Certificates until the Class Certificate Balance
thereof has been reduced to zero;
(xx) to
the
holders of the Class C Certificates, the Class C Distributable Amount;
and
(xxi) to
the
holders of the Class R Certificates, the remaining amount.
(II) On
each
Distribution Date, an amount equal to all Prepayment Charges received during
the
related Prepayment Period together with the amounts paid in respect thereof
pursuant to Section 3.21 shall be distributed in the following order of
priority:
(i) to
the
holders of the Class B-3 Certificates until the Class Certificate Balance
thereof has been reduced to zero;
(ii) to
the
holders of the Class B-2 Certificates until the Class Certificate Balance
thereof has been reduced to zero;
(iii) to
the
holders of the Class B-1 Certificates until the Class Certificate Balance
thereof has been reduced to zero; and
(iv) to
the
holders of the Class P Certificates
(III) On
each
Distribution Date, the Trustee shall make the following disbursements and
transfers from amounts then on deposit in the Excess Reserve Fund Account in
the
following order of priority, to the extent of funds available
therefor:
(i) to
the
Class A Certificates, the Net WAC Cap Carry Forward Amount for such Class;
and
(ii) sequentially,
to the Subordinated Certificates, in order of their distribution priority,
to
the extent of any Net WAC Cap Carry Forward Amount for each such Class.
(IV) At
least
six (6) Business Days prior to the related Distribution Date, the Seller shall
make available to the Trustee a statement containing (i) the aggregate
Certificate Balances of each of the Class A Certificates and Subordinated
Certificates owned by the Seller or any of its Affiliates during the immediately
preceding Interest Accrual Period and/or as of the date of such statement to
the
Trustee and (ii) the names of the Sellers and/or any of its Affiliates that
own
any of the Class A or Subordinated Certificates during the immediately preceding
Interest Accrual Period and/or as of the date of such statement to the Trustee.
The Seller and its Affiliates hereby agree that (i) the Seller and its
Affiliates shall own not less than 100% of any Class of Certificates and all
transfers of Class A or Subordinated Certificates of any Class that the Seller
and/or is Affiliates may undertake shall be restricted to 100% of such Class
and
(ii) neither the Seller nor any of its Affiliates shall undertake to sell any
Certificates held by such entities or purchase any additional Certificates
from
the date of such statement to the Trustee until the first day following the
related Distribution Date.
(V) On
each
Distribution Date, the Supplemental Interest Trust Trustee shall make the
distributions required under Section 4.05(c).
(VI) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no principal
and interest. If the Trustee determines that the Residual Certificates are
entitled to any distributions, the Trustee, prior to any such distribution
to
any Residual Certificate, shall notify the Depositor of such impending
distribution but shall make such distribution in accordance with the terms
of
this Agreement until this Agreement is amended as specified in the following
sentence. Upon such notification, the Depositor will request an amendment to
the
Pooling and Servicing Agreement to revise such mistake in the distribution
provisions. The Residual Certificate Holders, by acceptance of their
Certificates, and the Servicer(s), hereby agree to any such amendment and no
further consent shall be necessary, notwithstanding anything to the contrary
in
Section 10.01 of this Pooling and Servicing Agreement; provided, however, that
such amendment shall otherwise comply with Section 10.01 hereof.
Section
4.03 Monthly
Statements to Certificateholders.
(a) Not
later
than each Distribution Date, the Trustee shall prepare and make available to
each Certificateholder, the Servicer, the Depositor and each Rating Agency
on
its Internet website a statement for the related distribution of:
(i) the
applicable Record Dates, Interest Accrual Periods and Determination Dates for
calculating distributions for such Distribution Date;
(ii) the
amount of funds received from the Servicer for such Distribution Date separately
identifying amounts received in respect of the Mortgage Loans, the amount of
Advances included in the distribution on the Distribution Date, the amount
of
any Net Swap Payment to the Supplemental Interest Trust from the Swap Provider
and any Swap Termination Payment to the Supplemental Interest Trust from the
Swap Provider;
(iii) the
Servicing Fee and Trustee Fee for such Distribution Date;
(iv) the
amount of any Net Swap Payment from the Supplemental Interest Trust to the
Swap
Provider and any Swap Termination Payment from the Supplemental Interest Trust
to the Swap Provider;
(v) the
aggregate amount of expenses paid from amounts on deposit in (x) the Certificate
Account and (y) the Distribution Account;
(vi) the
amount of the distribution allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(vii) the
amount of the distribution allocable to interest, any Unpaid Interest Amounts
included in the distribution and any remaining Unpaid Interest Amounts after
giving effect to the distribution, any Net WAC Cap Carry Forward Amount for
the
Distribution Date, and the amount of all Net WAC Cap Carry Forward Amounts
covered by withdrawals from the Excess Reserve Fund Account on the Distribution
Date;
(viii) if
the
distribution to the Holders of any Class of Certificates is less than the full
amount that would be distributable to them if sufficient funds were available,
the amount of the shortfall and the allocation of the shortfall between
principal and interest, including any Net WAC Cap Carry Forward Amount not
covered by amounts in the Excess Reserve Fund Account;
(ix) the
amount of any Total Monthly Excess Spread on the Distribution Date and the
allocation thereof to the Certificateholders with respect to Unpaid Realized
Loss Amounts and Unpaid Interest Amounts;
(x) the
Class
Certificate Balance of each Class of Certificates before and after giving effect
to the distribution of principal on the Distribution Date;
(xi) the
Pass-Through Rate for each Class of Certificates with respect to the
Distribution Date;
(xii) the
amount on deposit in the Certificate Account and Excess Reserve Fund Account
(before and after giving effect to distributions on the Distribution Account
Deposit Date and Distribution Date, respectively);
(xiii) the
number of Mortgage Loans and the Pool Stated Principal Balance as the first
day
of the related Remittance Period and the last day of the related Remittance
Period;
(xiv) as
of the
last day of the related Remittance Period, (a) the weighted average mortgage
rate of the Mortgage Loans, and (b) the weighted average remaining term to
maturity of the Mortgage Loans;
(xv) the
number and aggregate outstanding balance of the Mortgage Loans as of the end
of
the preceding calendar month (a) delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and
(b) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to 89 days and
(3)
90 or more days, as
of the
close of business on the last day of the calendar month preceding the
Distribution Date;
(xvi) for
each
of the preceding 12 calendar months, or all calendar months since the Cut-off
Date, whichever is less, the aggregate dollar amount of the Scheduled Payments
(A) due on all Outstanding Mortgage Loans on the Due Date in such month and
(B)
delinquent sixty (60) days or more (determined in the same manner as for
determining Scheduled Payment delinquencies that result in a Mortgage Loan
being
a 60+ Day Delinquent Loan) on the Due Date in such month;
(xvii) 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;
(xviii) the
total
number and principal balance of any REO Properties (and market value, if
available) as of the close of business on the Determination Date preceding
the
Distribution Date;
(xix) the
aggregate amount of Principal Prepayments received during the related Prepayment
Period and the number of Mortgage Loans subject to such Principal
Prepayments;
(xx) the
aggregate amount of Advances reimbursed during the related Remittance Period,
the general source of funds for such reimbursements and the aggregate amount
of
Advances outstanding as of the close of business on the Distribution Date;
(xxi) the
aggregate amount of Servicing Advances reimbursed during the related Remittance
Period, the general source of funds for such reimbursements and the aggregate
amount of Servicing Advances outstanding as of the close of business on the
Distribution Date;
(xxii) the
amount of any Charge-off Amounts during the prior calendar month and since
the
Cut-off Date;
(xxiii) the
aggregate number and outstanding principal balance of Mortgage Loans repurchased
during the related Remittance Period due to material breaches of representations
and warranties regarding such Mortgage Loans;
(xxiv)
whether
a Trigger Event is in effect separately identifying the components
thereof;
(xxv) the
aggregate amount of Applied Realized Loss Amounts incurred during the preceding
calendar month and the aggregate Unpaid Realized Loss Amount through the
Distribution Date;
(xxvi) with
respect to the second Distribution Date, the number and aggregate balance of
any
Delayed Delivery Mortgage Loans not delivered within the time periods specified
in the definition of Delayed Delivery Mortgage Loans;
(xxvii) the
Overcollateralization Amount for such Distribution Date and the
Overcollateralization Target Amount for such Distribution Date; and
(xxviii)
Prepayment Charges collected, waived, and paid by the Servicer;
For
the
purposes of determining delinquency periods in reporting under (ix) above,
for
any Monthly Statement, a Mortgage Loan’s delinquency period shall be determined
as of the Due Date falling in the month in which the monthly statement is
provided and a Mortgage Loan is first delinquent only after the first Due Date
following the Due Date for which any part of a Scheduled Payment has not been
paid, and each calendar month shall be treated as having 30 days. Thus, for
the
December Monthly Statement a Mortgage Loan whose November Due Date payment
has
not been paid by the December Due Date is not delinquent. On the day after
the
December Due Date, such Mortgage Loan would be one day delinquent. A Mortgage
Loan whose November Due Date payment has not been paid by the December Due
Date
is 30 days past due as of the December Due Date, and would be reported as such
in the December Monthly Statement.
If
the
statement is not accessible to any of the Certificateholders, the Servicer,
the
Depositor or any Rating Agency on the Trustee’s Internet website, the Trustee
shall forward a hard copy of it to each Certificateholder, the Servicer, the
Depositor and each Rating Agency immediately after the Trustee becomes aware
that it is not accessible to any of them via its website. The address of the
Trustee’s Internet website where the statement will be accessible is
xxxxx://xxx.xxx.xx.xxx/xxxx.
Assistance in using the Trustee’s Internet website may be obtained by calling
the Trustee’s customer service desk at (000) 000-0000. The Trustee shall notify
each Certificateholder, the Servicer, the Depositor and each Rating Agency
in
writing of any change in the address or means of access to the Internet website
where the statement is accessible.
(b) The
Trustee’s responsibility for preparing and disbursing the above information to
the Certificateholders is limited to the availability, timeliness, and accuracy
of the information derived from the Servicer. The Trustee is not responsible
for
any inaccuracies in or caused by the data provided by the Servicer.
By
each
Determination Date, the Servicer shall provide to the Trustee in electronic
form
the information needed to determine the distributions to be made pursuant to
Section 4.02 and 3.09(b)(ii) and any other information that the Servicer and
the
Trustee mutually agree, including, without limitation, the amount on deposit
in
the Certificate Account (before and after giving effect to remittances to the
Trustee on the Distribution Account Deposit Date) and the aggregate amount
of
expenses paid from amounts on deposit in the Certificate Account.
(c) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
cause to be furnished to each Person who at any time during the calendar year
was a Certificateholder, a statement containing the information in clauses
(a)(i) and (a)(ii) (with respect to principal and interest distributed) of
this
Section 4.03 aggregated for the calendar year or the applicable portion thereof
during which the Person was a Certificateholder. This obligation of the Trustee
shall be satisfied to the extent that substantially comparable information
shall
be provided by the Trustee pursuant to any requirements of the Code as from
time
to time in effect.
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined and reported based on the “OTS” methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans. By way of
example, a Mortgage Loan would be delinquent with respect to a Monthly Payment
due on a Due Date if such Monthly Payment is not made by the close of business
on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be
more than 30-days Delinquent with respect to such Monthly Payment if such
Monthly Payment were not made by the close of business on the Mortgage Loan’s
second succeeding Due Date. The Servicer hereby represents and warrants to
the
Depositor that this delinquency recognition policy is not less restrictive
than
any delinquency recognition policy established by the primary safety and
soundness regulator, if any, of the Servicer.
Section
4.04 Allocation
of Interest Shortfall and Realized Losses
For
purposes of calculating the amount of the Accrued Certificate Interest
Distribution Amount for the Class A Certificates, the Subordinated Certificates
and the Class C Certificates for any Distribution Date, the aggregate amount
of
any Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date (together,
“Net Interest Shortfalls”) shall be allocated first, to reduce the interest
accrued on the Class C Certificates in the related Accrual Period up to an
amount equal to one month’s interest at the then applicable Pass-Through Rate on
the Notional Amount of such Certificates and, thereafter, to reduce the interest
accrued during the related Accrual Period on the Class A Certificates and the
Subordinated Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate.
If
on any
Distribution Date, the aggregate Class Certificate Balance of the Class A
Certificates and the Subordinated Certificates, determined after all
distributions pursuant to Section 4.01 have been made, exceeds the aggregate
Stated Principal Balance of all of the Mortgage Loans as of such Distribution
Date, such excess shall be allocated by the Trustee to reduce the balance of
the
Subordinated Certificates, in reverse order of their distribution priority
(lowest to highest), until the Class Certificate Balance of each such Class
has
been reduced to zero. All Applied Realized Losses so allocated to the Class
Certificate Balance of any such Class on any Distribution Date shall be so
allocated after the actual distributions to be made on such date as provided
herein. No allocations of any Realized Losses shall be made to the Class
Certificate Balance of the Class A Certificates. All references in Section
4.01
to the Class Certificate Balance of any Class of Certificates, unless otherwise
stated, shall be to the Class Certificate Balance of such Class immediately
prior to the relevant Distribution Date, before reduction thereof by any
Realized Losses as provided in this Section 4.04, in each case to be allocated
to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Subordinated Certificate on any Distribution
Date shall be made by reducing the Certificate Balance thereof by such
Certificate’s pro rata share of Applied Realized Losses allocated to the related
Class Certificate Balance.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries included in the Available Funds for such
Distribution Date shall be applied to increase the Class Certificate Balance
of
the Class of Subordinated Certificates with the Highest Priority up to the
extent of Unpaid Realized Loss Amounts for such Class of Certificates. An amount
equal to the amount of any remaining Subsequent Recoveries shall be applied
to
increase the Certificate Principal Balance of the Class of Certificates with
the
next Highest Priority, up to the amount of Unpaid Realized Loss Amounts for
such
Class of Certificates, and so on. Holders of such Certificates will not be
entitled to any distributions in respect of interest on the amount of such
increases for any Interest Accrual Period preceding the Distribution Date on
which such increase occurs. Any such increases shall be applied to the
Certificate Balance of each Certificate of such Class in accordance with its
respective Percentage Interest.
Section
4.05 Supplemental
Interest Trust.
(a) As
of the
Closing Date, the Supplemental Interest Trust Trustee shall establish and
maintain in the name of the Trustee a separate trust for the benefit of the
holders of the Class A Certificates and Subordinated Certificates (the
“Supplemental
Interest Trust”)
into
which the Depositor shall deposit $1,000. The Supplemental Interest Trust shall
hold the Swap Agreement. The Supplemental Interest Trust shall include an
Eligible Account, and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trustee or of the Supplemental Interest Trust
Trustee held pursuant to this Agreement. Amounts therein shall be held
uninvested.
(b) On
each
Distribution Date, the Supplemental Interest Trust Trustee shall deposit into
the Supplemental Interest Trust amounts received from the Trustee pursuant
to
Section 4.02(I) of this Agreement. On each Distribution Date, the Supplemental
Interest Trust Trustee shall distribute any such amounts to the Swap Provider
pursuant to the Swap Agreement, first to pay any Net Swap Payment owed to the
Swap Provider for such Distribution Date, and second to pay any Swap Termination
Payment owed to the Swap Provider.
(c) On
each
Distribution Date, the Supplemental Interest Trust Trustee shall deposit into
the Supplemental Interest Trust amounts received from the Swap Provider. On
each
Distribution Date, the Supplemental Interest Trust Trustee shall distribute
from
the Supplemental Interest Trust an amount up to the Net Swap Payment received
from the Swap Provider under the Swap Agreement, in the following order of
priority:
(i) to
pay
any Net Swap Payment or Swap Termination Payment (not caused by a Swap Provider
Trigger Event) owed to the Swap Provider pursuant to the Interest Rate Swap
Agreement;
(ii) to
pay
any Unpaid Interest Amounts on the Class A Certificates, including any accrued
Unpaid Interest Amount from a prior Distribution Date and then to the
Subordinated Certificates (other than the Class B Certificates), sequentially
in
order of their distribution priority, to pay any Unpaid Interest Amount
including any accrued Unpaid Interest Amounts from prior Distribution
Dates;
(iii) to
fund
the amount by which the Total Monthly Excess Spread for such Distribution Date
is less than the Overcollateralization Deficiency on such Distribution Date,
to
be paid as a component of the Extra Principal Distribution Amount as described
in Section 4.01(I)(b) above;
(iv) sequentially,
in order of their distribution priority, to distribute to the classes of
Subordinated Certificates (other than the Class B Certificates) any Unpaid
Realized Loss Amounts remaining on the Subordinated Certificates;
(v) to
pay
any remaining Net WAC Cap Carry Forward Amount on the Class A and Subordinated
Certificates (other than the Class B Certificates) in accordance with Section
4.02(III);
(vi) to
pay
any Swap Termination Payment owed to the Swap Provider resulting from a Swap
Provider Trigger Event;
(vii) to
pay
the Class B-3 Certificates until the Class Certificate Balance thereof is
reduced to zero;
(viii) to
pay
the Class B-2 Certificates until the Class Certificate Balance thereof is
reduced to zero;
(ix) to
pay
the Class B-1 Certificates until the Class Certificate Balance thereof is
reduced to zero; and
(x) to
pay
any remaining amounts to the Class C Certificates.
Notwithstanding
any of the foregoing, the aggregate amount distributed under clauses (iii),
(iv), (vii), (viii) and (ix) above on such Distribution Date, when added to
the
cumulative aggregate amount distributed under clauses (iii), (iv), (vii), (viii)
and (ix) above on all prior Distribution Dates, will not be permitted to exceed
the cumulative amount of Realized Losses incurred since the cut-off date through
the last day of the related Prepayment Period (reduced by the aggregate amount
of Subsequent Recoveries received since the Cut-off Date through the last day
of
the related Prepayment Period). Any amounts that would otherwise be
distributable from the Supplemental Interest Trust on any Distribution Date
under clauses (iii), (iv), (vii), (viii) and (ix) above, but for the foregoing
proviso, will be retained in the Supplemental Interest Trust and will be
included in amounts available for distribution from the Supplemental Interest
Trust on the next succeeding Distribution Date, subject to the foregoing proviso
in the case of amounts to be distributed under clauses (iii), (iv), (vii),
(viii) and (ix) above.
(d) The
Supplemental Interest Trust constitutes an “outside reserve fund” within the
meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC.
The Class C Certificateholder shall be the beneficial owner of the Supplemental
Interest Trust, as such entity is entitled to receive any remaining amounts
payable by the Swap Provider under the Swap Agreement as described pursuant
to
Section 4.05(c), subject to the power of the Supplemental Interest Trust Trustee
to transfer amounts under this Agreement. The Supplemental Interest Trust
Trustee shall keep records that accurately reflect the funds on deposit in
the
Supplemental Interest Trust. The Supplemental Interest Trust Trustee shall,
at
the written direction of IndyMac Bank, F.S.B., invest amounts on deposit in
the
Supplemental Interest Trust in Permitted Investments. In the absence of written
direction to the Supplemental Interest Trust Trustee from IndyMac Bank, F.S.B.,
all funds in the Supplemental Interest Trust shall remain uninvested. On each
Distribution Date, the Supplemental Interest Trust Trustee shall distribute,
not
in respect of any REMIC, any interest earned on the Supplemental Interest Trust
to IndyMac Bank, F.S.B. It is the intention of the parties hereto that, for
federal income tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from IndyMac Bank, F.S.B. IndyMac Bank F.S.B.’s ownership
interest in the Supplemental Interest Trust may not be transferred (or
re-transferred) unless 100% of the ownership interest is transferred (or
re-transferred) to a single entity treated as a corporation for federal income
tax purposes. IndyMac Bank F.S.B., and any subsequent owner of the Supplemental
Interest Trust, will provide (and update as required or reasonably requested)
an
IRS Form W-9 or appropriate IRS Form W-8 to the Trustee.
(e) For
federal income tax purposes, amounts paid to the Supplemental Interest Trust
on
each Distribution Date pursuant to Sections 4.02(I) and (V) shall first be
deemed paid to the Supplemental Interest Trust in respect of REMIC VI Regular
Interest SWAP IO to the extent of the amount distributable on REMIC VI Regular
Interest SWAP IO on such Distribution Date, and any remaining amount shall
be
deemed paid to the Supplemental Interest Trust in respect of a Class IO
Distribution Amount.
(f) The
Supplemental Interest Trust Trustee shall treat the Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) as having
entered into a notional principal contract with the owners of the Supplemental
Interest Trust. Pursuant to each such notional principal contract, all Holders
of Certificates (other than the Class P, Class C, Class R and Class R-X
Certificates) shall be treated as having agreed to pay, on each Distribution
Date, to the owner of the Supplemental Interest Trust an aggregate amount equal
to the excess, if any, of (i) the amount payable on such Distribution Date
on
the REMIC Regular Interest ownership of which is represented by such Class
of
Certificates over (ii) the amount payable on such Class of Certificates on
such
Distribution Date (such excess, a “Class IO Distribution Amount”). A Class IO
Distribution Amount payable from interest collections shall be allocated pro
rata among such Certificates based on the amount of interest otherwise payable
to such Certificates, and a Class IO Distribution Amount payable from principal
collections shall be allocated to the most subordinate Class of such
Certificates with an outstanding principal balance to the extent of such
balance. In addition, pursuant to a notional principal contract, the Holder
of
the Class C Certificates shall be treated as having agreed to pay Net WAC Cap
Carry Forward Amounts to the Holders of the Certificates (other than the Class
C, Class P, Class R and Class R-X Certificates) in accordance with the terms
of
this Agreement. Any payments to such Certificates from amounts deemed received
in respect of this notional principal contract shall not be payments with
respect to a Regular Interest in a REMIC within the meaning of Code Section
860G(a)(1). However, any payment from the Certificates (other than the Class
C,
Class P, Class R and Class R-X Certificates) of a Class IO Distribution Amount
shall be treated for tax purposes as having been received by the Holders of
such
Certificates in respect of the REMIC Regular Interest ownership of which is
represented by such Certificates, and as having been paid by such Holders to
the
Supplemental Interest Trust pursuant to the notional principal contract. Thus,
each Certificate (other than the Class P, Class R and Class R-X Certificates)
shall be treated as representing not only ownership of a Regular Interest in
REMIC III, but also ownership of an interest in, and obligations with respect
to, a notional principal contract.
(g) In
the
event that the Swap Agreement is terminated prior to the Distribution Date
in
May 2012, the Supplemental Interest Trust Trustee shall, as directed by and
upon
the recommendation of a nationally-recognized investment bank (which may be
UBS
Securities LLC), and using any Swap Termination Payments paid by the Swap
Provider and deposited in the Supplemental Interest Trust, appoint a successor
Swap Provider.
(h) Notwithstanding
anything contained herein, in the event that a qualified successor Swap Provider
is unable to be located, in accordance with Section 4.05(g) above, within 30
days after receipt by the Supplemental Interest Trust Trustee of the Swap
Termination Payment paid by the terminated Swap Provider, the Supplemental
Interest Trust Trustee shall deposit such Swap Termination Payment into a
separate, non-interest bearing trust account established by the Supplemental
Interest Trust Trustee and the Supplemental Interest Trust Trustee shall, on
each Distribution Date following receipt of such Swap Termination Payment,
withdraw from such account an amount equal to the Net Swap Payment, if any,
that
would have been paid to the Trust by the original Swap Provider (computed in
accordance with the original Swap Agreement, attached hereto as Exhibit K)
and
distribute such amount in accordance with Section 4.05(c). On the Distribution
Date immediately after the termination date of the original Swap Agreement,
the
Supplemental Interest Trust Trustee shall withdraw any funds remaining in such
account and distribute such amount in accordance with this
Agreement.
(i) The
Seller shall promptly notify the Trustee in the event that any Certificates
are
held by the Seller, the Depositor or any Affiliate. In the absence of such
notification, the Trustee on each Distribution Date may conclusively rely on
the
status of the Seller, the Depositor or any Affiliate as of the immediately
preceding Record Date.
Section
4.06 Tax
Treatment of Net Swap Payments and Swap Termination
Payments.
For
federal income tax purposes, each holder of a Class A or Subordinated
Certificate is deemed to own an undivided beneficial ownership interest in
a
REMIC Regular Interest and the right to receive payments from either the Excess
Reserve Fund Account or the Supplemental Interest Trust in respect of any Net
WAC Cap Carry Forward Amounts or the obligation to make payments to the
Supplemental Interest Trust.
For
federal income tax purposes, the Supplemental Interest Trust Trustee will
account for payments to each Class A and Subordinated Certificates as follows:
each Class A and Subordinated Certificate will be treated as receiving their
entire payment from REMIC III (regardless of any Swap Termination Payment or
obligation under the Swap Agreement) and subsequently paying their portion
of
any Swap Termination Payment in respect of each such Class’s obligation under
the Swap Agreement. In the event that any such Class is resecuritized in a
REMIC, the obligation under the Swap Agreement to pay any such Swap Termination
Payment (or any shortfall in the fee to the Swap Provider), will be made by
one
or more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from any
such Class A or Subordinated Certificate. The REMIC regular interest
corresponding to a Class A or Subordinated Certificate will be entitled to
receive interest and principal payments at the times and in the amounts equal
to
those made on the certificate to which it corresponds, except that (i) the
maximum interest rate of that REMIC Regular Interest will equal the Net WAC
Pass-Through Rate computed for this purpose by limiting the notional amount
of
the Swap Agreement to the aggregate principal balance of the Mortgage Loans
and
(ii) any Swap Termination Payment will be treated as being payable solely from
Total Monthly Excess Spread. As a result of the foregoing, the amount of
distributions and taxable income on the REMIC Regular Interest corresponding
to
a Class A or Subordinated Certificate may exceed the actual amount of
distributions on the Class A or Subordinated Certificate.
Section
4.07 Certain
Matters Relating to the Determination of LIBOR.
Until
all
of the LIBOR Certificates are paid in full, the Trustee will at all times retain
at least four Reference Banks for the purpose of determining LIBOR with respect
to each Interest Determination Date. The Servicer initially shall designate
the
Reference Banks. Each “Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by or be
under common control with, the Trustee and shall have an established place
of
business in London. If any such Reference Bank should be unwilling or unable
to
act as such or if the Servicer should terminate its appointment as Reference
Bank, the Servicer shall promptly appoint another Reference Bank. The Trustee
shall have no liability or responsibility to any Person for (i) the selection
of
any Reference Bank for purposes of determining LIBOR or (ii) any inability
to
retain at least four Reference Banks that is caused by circumstances beyond
its
reasonable control.
The
Pass-Through Rate for each Class of LIBOR Certificates for each Interest Accrual
Period shall be determined by the Trustee on each LIBOR Determination Date
so
long as the LIBOR Certificates are outstanding on the basis of LIBOR and the
respective formulae appearing in footnotes corresponding to the LIBOR
Certificates in the table relating to the Certificates in the Preliminary
Statement. The Trustee shall not have any liability or responsibility to any
Person for its inability, following a good-faith reasonable effort, to obtain
quotations from the Reference Banks or to determine the arithmetic mean referred
to in the definition of LIBOR, all as provided for in this Section 4.07 and
the
definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate
for
the LIBOR Certificates by the Trustee shall (in the absence of manifest error)
be final, conclusive and binding upon each Holder of a Certificate and the
Trustee.
Section
4.08 Distributions
and Allocation of Realized Losses to the REMIC I Regular Interests and REMIC
II
Regular Interests.
(a) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC I to REMIC II on account of the REMIC I Regular
Interests or withdrawn from the Distribution Account and distributed to the
Holders of the Class R Certificates (in respect of the Class R-II Interest),
as
the case may be:
(i) to
Holders of each of REMIC I Regular Interest I-I, REMIC I Regular Interest I-1-A
through I-72-B, pro rata, in an amount equal to (A) Uncertificated Interest
for
such REMIC I Regular Interests for such Distribution Date, plus (B) any amounts
payable in respect thereof remaining unpaid from previous Distribution
Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated as follows: first, to REMIC
I
Regular Interest I until the Uncertificated Balance is reduced to zero and
second, to REMIC I Regular interests I-1-A through I-72-B starting with the
lowest numerical denomination until the Uncertificated Balance of each such
REMIC I Regular Interest is reduced to zero, provided that, for REMIC I Regular
Interests with the same numerical denomination, such payments of principal
shall
be allocated pro rata between such REMIC I Regular Interests; and
(iii) to
the
Holders of REMIC I Regular Interest I-72-B, (A) on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges and (B) on the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date thereafter
until $100 has been distributed pursuant to this clause.
(b) On
each
Distribution Date, the following amounts, in the following order of priority,
shall be distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or withdrawn from the Distribution Account and distributed to the
Holders of the Class R Certificates (in respect of the Class R-III Interest),
as
the case may be:
(i) to
the
Holders of REMIC II Regular Interest LTIO, in an amount equal to (A) accrued
Uncertificated Interest for such REMIC II Regular Interest for such Distribution
Date, plus
(B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates;
(ii) to
Holders of REMIC II Regular Interest LTAA, REMIC II Regular Interest LTA, REMIC
II Regular Interest LTM1, REMIC II Regular Interest LTM2, REMIC II Regular
Interest LTM3, REMIC II Regular Interest LTM4, REMIC II Regular Interest LTM5,
REMIC II Regular Interest LTM6, REMIC II Regular Interest LTM7, REMIC II Regular
Interest LTM8, REMIC II Regular Interest LTM9, REMIC II Regular Interest LTM10,
REMIC II Regular Interest LTB1, REMIC II Regular Interest LTB2, REMIC II Regular
Interest LTB3, REMIC II Regular Interest LTZZ and REMIC II Regular Interest
LTP,
on a pro
rata basis,
in
an amount equal to (A) the Uncertificated Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates. Amounts payable as Uncertificated Interest in respect of
REMIC II Regular Interest LTZZ shall be reduced and deferred when the REMIC
II
Overcollateralized Amount is less than the REMIC II Overcollateralization Target
Amount, by the lesser of (x) the amount of such difference and (y) the Maximum
LTZZ Uncertificated Interest Deferral Amount and such amount will be payable
to
the Holders of REMIC II Regular Interest LTA, REMIC II Regular Interest LTM1,
REMIC II Regular Interest LTM2, REMIC II Regular Interest LTM3, REMIC II Regular
Interest LTM4, REMIC II Regular Interest LTM5, REMIC II Regular Interest LTM6,
REMIC II Regular Interest LTM7, REMIC II Regular Interest LTM8, REMIC II Regular
Interest LTM9, REMIC II Regular Interest LTM10, REMIC II Regular Interest LTB1,
REMIC II Regular Interest LTB2 and REMIC II Regular Interest LTB3, in the same
proportion as the Overcollateralization Increase Amount is allocated to the
Corresponding Certificates and the Uncertificated Balance of the REMIC II
Regular Interest LTZZ shall be increased by such amount;
(iii) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (A) and (B) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC II Regular Interest LTAA and REMIC II
Regular Interest LTP, until the Uncertificated Balance of such REMIC II Regular
Interests are reduced to zero; provided, however, that REMIC II Regular Interest
LTP shall not be reduced until the Distribution Date immediately following
the
expiration of the latest Prepayment Charge as identified on the Prepayment
Charge Schedule or any Distribution Date thereafter, at which point such amount
shall be distributed to REMIC II Regular Interest LTP, until $100 has been
distributed pursuant to this clause;
(b) 2.00%
of
such remainder (other than amounts payable under clause (iii) below) first,
to
the Holders of REMIC II Regular Interest LTA, REMIC II Regular Interest LTM1,
REMIC II Regular Interest LTM2, REMIC II Regular Interest LTM3, REMIC II Regular
Interest LTM4, REMIC II Regular Interest LTM5, REMIC II Regular Interest LTM6,
REMIC II Regular Interest LTM7, REMIC II Regular Interest LTM8, REMIC II Regular
Interest LTM9, REMIC II Regular Interest LTM10, REMIC II Regular Interest LTB1,
REMIC II Regular Interest LTB2 and REMIC II Regular Interest LTB3, 1.00% of
and
in the same proportion as principal payments are allocated to the Corresponding
Certificates until the Uncertificated Balance of each such REMIC II Regular
Interest is reduced to zero, and second, to the Holders of REMIC II Regular
Interest LTZZ, until the Uncertificated Balance of such REMIC II Regular
Interest is reduced to zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-III Interest);
provided,
however,
that
(i) 98.00% and (ii) 2.00% of any principal payments that are attributable to
an
Overcollateralization Reduction Amount shall be allocated to Holders of (i)
REMIC II Regular Interest LTAA and REMIC II Regular Interest LTP, in that order
and (ii) REMIC II Regular Interest LTZZ, respectively; provided, that REMIC
II
Regular Interest LTP shall not be reduced until the Distribution Date
immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC II Regular
Interest LTP, until $100 has been distributed pursuant to this
clause.
Notwithstanding
the priorities and amounts of distribution of funds pursuant to this Section
4.08(I), actual distributions of the Available Funds shall be made only in
accordance with Section 4.02.
(c) With
respect to the REMIC I Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated shall be allocated by the Trustee on each Distribution
Date first, to REMIC I Regular Interest I until the Uncertificated Balance
has
been reduced to zero, and second, to REMIC I Regular Interest I-1-A through
REMIC I Regular Interest I-72-B, starting with the lowest numerical denomination
until such REMIC I Regular Interest has been reduced to zero, provided that,
for
REMIC I Regular Interests with the same numerical denomination, such Realized
Losses shall be allocated pro rata between such REMIC I Regular
Interests.
(d) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date to the following REMIC II Regular Interests in the specified
percentages, as follows: first, to Uncertificated Interest payable to the REMIC
II Regular Interest LTAA and REMIC II Regular Interest LTZZ up to an aggregate
amount equal to the REMIC II Interest Loss Allocation Amount, 98% and 2%,
respectively; second, to the Uncertificated Balances of the REMIC II Regular
Interest LTAA and REMIC II Regular Interest LTZZ up to an aggregate amount
equal
to the REMIC II Principal Loss Allocation Amount, 98% and 2%, respectively;
third, to the Uncertificated Balances of REMIC II Regular Interest LTAA, REMIC
II Regular Interest LTB3 and REMIC II Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
LTB3
has been reduced to zero; fourth, to the Uncertificated Balances of REMIC II
Regular Interest LTAA, REMIC II Regular Interest LTB2 and REMIC II Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of
REMIC II Regular Interest LTB2 has been reduced to zero; fifth, to the
Uncertificated Balances of REMIC II Regular Interest LTAA, REMIC II Regular
Interest LTB1 and REMIC II Regular Interest LTZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Balance of REMIC II Regular Interest LTB1 has been
reduced to zero; sixth, to the Uncertificated Balances of REMIC II Regular
Interest LTAA, REMIC II Regular Interest LTM10 and REMIC II Regular Interest
LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of REMIC
II
Regular Interest LTM10 has been reduced to zero; seventh, to the Uncertificated
Balances of REMIC II Regular Interest LTAA, REMIC II Regular Interest LTM9
and
REMIC II Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest LTM9 has been reduced to
zero; eighth, to the Uncertificated Balances of REMIC II Regular Interest LTAA,
REMIC II Regular Interest LTM8 and REMIC II Regular Interest LTZZ, 98%, 1%
and
1%, respectively, until the Uncertificated Balance of REMIC II Regular Interest
LTM8 has been reduced to zero; ninth, to the Uncertificated Balances of REMIC
II
Regular Interest LTAA, REMIC II Regular Interest LTM7 and REMIC II Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of
REMIC II Regular Interest LTM7 has been reduced to zero; tenth, to the
Uncertificated Balances of REMIC II Regular Interest LTAA, REMIC II Regular
Interest LTM6 and REMIC II Regular Interest LTZZ, 98%, 1% and 1%, respectively,
until the Uncertificated Balance of REMIC II Regular Interest LTM6 has been
reduced to zero; eleventh, to the Uncertificated Balances of REMIC II Regular
Interest LTAA, REMIC II Regular Interest LTM5 and REMIC II Regular Interest
LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance of REMIC
II
Regular Interest LTM5 has been reduced to zero; twelfth, to the Uncertificated
Balances of REMIC II Regular Interest LTAA, REMIC II Regular Interest LTM4
and
REMIC II Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest LTM4 has been reduced to
zero; thirteenth, to the Uncertificated Balances of REMIC II Regular Interest
LTAA, REMIC II Regular Interest LTM3 and REMIC II Regular Interest LTZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Balance of REMIC II Regular
Interest LTM3 has been reduced to zero; fourteenth, to the Uncertificated
Balances of REMIC II Regular Interest LTAA, REMIC II Regular Interest LTM2
and
REMIC II Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Balance of REMIC II Regular Interest LTM2 has been reduced to
zero; and fifteenth, to the Uncertificated Balances of REMIC II Regular Interest
LTAA, REMIC II Regular Interest LTM1 and REMIC II Regular Interest LTZZ, 98%,
1%
and 1%, respectively, until the Uncertificated Balance of REMIC II Regular
Interest LTM1 has been reduced to zero.
ARTICLE
V
THE
CERTIFICATES
Section
5.01 The
Certificates.
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in minimum denominations,
representing an original principal amount of $100,000 and integral multiples
of
$1,000 in excess thereof (except that one Certificate in each Class may be
issued in a different amount that must exceed the applicable minimum
denomination) and aggregate denominations per Class set forth in REMIC
I.
Subject
to Section 9.02 respecting the final distribution on the Certificates, on each
Distribution Date, the Trustee shall make distributions to each
Certificateholder of record on the preceding Record Date either:
(x) by
wire
transfer in immediately available funds to the account of the Holder at a bank
or other entity having appropriate facilities therefor, if the Holder has so
notified the Trustee at least five (5) Business Days before the related Record
Date; and
(y) by
check
mailed by first class mail to the Certificateholder at the address of such
holder appearing in the Certificate Register.
The
Trustee shall execute the Certificates by manual or facsimile signature of
an
authorized officer. Certificates bearing the manual or facsimile signatures
of
individuals who were, at the time such signatures were affixed, authorized
to
sign on behalf of the Trustee shall bind the Trustee, notwithstanding that
such
individuals or any of them have ceased to be so authorized before the
countersignature and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to
any
benefit under this Agreement, or be valid for any purpose, unless countersigned
by the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their countersignature. On the Closing Date, the
Trustee shall countersign the Certificates to be issued at the direction of
the
Depositor, or any affiliate thereof.
The
Depositor shall provide to the Trustee, on a continuous basis, an adequate
inventory of Certificates to facilitate transfers.
Section
5.02 Certificate
Register; Registration of Transfer and Exchange of
Certificates.
(a) The
Trustee shall maintain, in accordance with Section 5.06, a Certificate Register
for the Trust Fund in which, subject to subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided. Upon surrender for registration of transfer of any
Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, countersign and deliver
the Certificates that the Certificateholder making the exchange is entitled
to
receive. A written instrument of transfer in form satisfactory to the Trustee
duly executed by the Holder or his attorney duly authorized in writing shall
accompany every Certificate presented or surrendered for registration of
transfer or exchange. In addition, (i) with respect to each Class R Certificate,
the holder thereof may exchange, in the manner described above, such Class
R
Certificate for four separate certificates, each representing such holder’s
respective Percentage Interest in the Class R-II Interest, the Class R-III
Interest and the Class R-IV Interest that was evidenced by the Class R
Certificate being exchanged and (ii) with respect to each Class R-X Certificate,
the holder thereof may exchange, in the manner described above, such Class
R-X
Certificate for three separate certificates, each representing such holder’s
respective Percentage Interest in the Class R-V Interest, the Class R-VI
Interest and the Class R-VI Interest that was evidenced by the Class R-X
Certificate being exchanged.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and any applicable state securities laws. In the event that
such
a transfer of a Private Certificate is to be made without registration or
qualification (other than in connection with (i) the initial transfer of any
such Certificate by the Depositor to an Affiliate thereof, (ii) the transfer
of
any such Class C, Class P or Residual Certificate to the applicable issuer
or
indenture trustee under the Indenture or (iii) a transfer of any such Class
C,
Class P or Residual Certificate from the applicable issuer or indenture trustee
under the Indenture to the Depositor or an Affiliate thereof), but in reliance
on an exemption from the Securities Act and any applicable state securities
laws, to assure compliance with the Securities Act and any applicable state
securities laws, the Certificateholder desiring to effect the transfer shall
certify to the Trustee in writing the facts surrounding the transfer in
substantially the form of Exhibit J (the “Transferor
Certificate”)
and
either (i) deliver to the Trustee a letter in substantially the form of Exhibit
L (the “Rule
144A Letter”)
or
(ii) deliver to the Trustee at the expense of the transferor an Opinion of
Counsel that the transfer may be made without registration under the Securities
Act. The Depositor shall provide to any Holder of a Private Certificate and
any
prospective transferee designated by the Holder of a Private Certificate,
information regarding the related Certificates and the Mortgage Loans and any
other information necessary to satisfy the condition to eligibility in Rule
144A(d)(4) for transfer of the Certificate without registration thereof under
the Securities Act pursuant to the registration exemption provided by Rule
144A.
The Trustee and the Servicer shall cooperate with the Depositor in providing
the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information regarding the Certificates, the Mortgage
Loans
and other matters regarding the Trust Fund the Depositor reasonably requests
to
meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect a transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, the Seller, and the Servicer against
any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either:
(i) a
representation from the transferee of such Certificate acceptable to and in
form
and substance satisfactory to the Trustee (if the Certificate is a Private
Certificate, the requirement is satisfied only by the Trustee’s receipt of a
representation letter from the transferee substantially in the form of Exhibit
L, and if the Certificate is a Residual Certificate, the requirement is
satisfied only by the Trustee’s receipt of a Transfer Affidavit 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
is not a Class C, Class R or Class R-X Certificate and has been the subject
of
an ERISA-Qualifying Underwriting and the purchaser is an insurance company,
a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE
95-60”)
and
that the purchase and holding of such Certificates are covered under Sections
I
and III of PTCE 95-60; or
(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 and the Servicer, which Opinion
of Counsel shall not be an expense of the Trustee, the Servicer or the Trust
Fund, addressed to the Trustee, to the effect that the purchase or holding
of
such ERISA-Restricted Certificate will not result in a nonexempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Trustee or the Servicer to any obligation in addition to those expressly
undertaken in this Agreement or to any liability.
For
purposes of the preceding sentence, neither an Opinion of Counsel nor any
certification shall be required in connection with (i) the initial transfer
of
any such Certificate by the Depositor to an Affiliate thereof, (ii) the transfer
of any such Class C, Class P or Residual Certificate to the applicable issuer
or
indenture trustee under the Indenture or (iii) a transfer of any such Class
C,
Class P or Residual Certificate from the issuer or indenture trustee under
the
Indenture to the Depositor or an Affiliate thereof (in which case, the Depositor
or any Affiliate thereof shall have deemed to have represented that it is not
using the assets of any plan or arrangement subject to Section 406 of ERISA
or
plan subject to Section 4975 of the Code) and the Trustee shall be entitled
to
conclusively rely upon a representation (which, upon the request of the Trustee,
shall be a written representation) from the Depositor of the status of such
transferee as an Affiliate of the Depositor. In addition, with respect to
transfers of an ERISA-Restricted Certificate (that is not a Residual
Certificate) other than as described in the preceding sentence, if the
representation letter or Opinion of Counsel referred to in the preceding
sentence is not furnished, the appropriate representation in clause (i) shall
be
deemed to have been made to the Trustee by the transferee’s (including an
initial acquirer’s) acceptance of the ERISA-Restricted Certificates. If any of
the provisions in the preceding sentences are violated, the attempted transfer
or acquisition shall be void.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of a Class A or Subordinate Certificate or any interest therein, shall be deemed
to have represented, by virtue of its acquisition or holding of such
Certificate, or interest therein, that either (i) it is not a Plan or (ii)
(A)
it is an "accredited investor" as defined in Rule 501(a)(1) of Regulation D
issued under the Securities Act and (B) the acquisition and holding of such
Certificate and the separate right to receive payments from the Supplemental
Interest Trust are eligible for the exemptive relief available under Prohibited
Transaction Class Exemption (“PTCE”) 84-14, 90-1, 91-38, 95-60 or 96-23.
Each
beneficial owner of a Subordinated Certificate or any interest therein that
is
acquired after the termination of the Supplemental Interest Trust shall be
deemed to have represented, by virtue of its acquisition or holding of that
certificate or interest therein, that either (i) it is not 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, (ii) it has acquired and is holding such
certificate in reliance on the Underwriter’s Exemption, and that it understands
that there are certain conditions to the availability of the Underwriter’s
Exemption, including that such certificate must be rated, at the time of
purchase, not lower than “BBB-” (or its equivalent) by S&P, Fitch or
Xxxxx’x, and such certificate is so rated, that it will represent that it is an
“accredited investor” as defined in Rule 501(a)(1) of Regulation D issued under
the Securities Act and will obtain a representation from any transferee that
such transferee is an accredited investor so long as it is required to obtain
a
representation regarding compliance with the Securities Act or (iii) (1) it
is
an insurance company, (2) the source of funds used to acquire or hold the
certificate or interest therein is an “insurance company general account,” as
such term is defined in PTCE 95-60, and (3) the conditions in Sections I and
III
of PTCE 95-60 have been satisfied.
To
the
extent permitted under applicable law (including ERISA), the Trustee shall
not
be liable to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 5.02(b) or for making
any payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing
requirements.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee 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 (subject
to
the limitations with respect thereto as set forth in Section
5.02(b)).
(iii) Subject
to the limitations set forth in Section 5.02(b), 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 not be liable to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time
it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate in this Section 5.02(c)
shall cease to apply (and the applicable portions of the legend on a Residual
Certificate may be deleted) with respect to Transfers occurring after delivery
to the Trustee of an Opinion of Counsel, which Opinion of Counsel shall not
be
an expense of the Trust Fund, the Trustee, the Seller or the Servicer, to the
effect that the elimination of such restrictions will not cause the Trust Fund
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or any other Person. The Opinion of Counsel shall be
accompanied by written notification from each Rating Agency that the removal
of
the restriction will not cause the Rating Agency to downgrade its ratings of
the
Certificates. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in,
a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the
Transfer of a Residual Certificate that is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of the
parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration
of the Certificates may not be transferred by the Trustee except to another
Depository;
(ii) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Book-Entry
Certificates;
(iii) ownership
and transfers of registration of the Book-Entry Certificates on the books of
the
Depository shall be governed by applicable rules established by the
Depository;
(iv) the
Depository may collect its usual and customary fees, charges, and expenses
from
its Depository Participants;
(v) the
Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and
(vi) the
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing the Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
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, then the Trustee shall notify
all Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of definitive, fully-registered Certificates
(the
“Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Servicer, the Depositor or the Trustee shall be liable
for any delay in delivery of such instruction, and each may conclusively rely
on, and shall be protected in relying on, such instructions. The Servicer shall
provide the Trustee with an adequate inventory of certificates to facilitate
the
issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates, all references herein to obligations imposed upon
or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided, that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
Section
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a)
any mutilated Certificate is surrendered to the Trustee, or (b) the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Certificate and the Servicer and the Trustee receive the security or indemnity
required by them to hold each of them harmless, then, in the absence of notice
to the Trustee that the Certificate has been acquired by a Protected Purchaser,
and if the requirements of Section 8-406 of the UCC are met and subject to
Section 8-405 of the UCC, the Trustee shall execute, countersign and deliver,
in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Certificate,
a new Certificate of like Class, tenor and Percentage Interest. In connection
with the issuance of any new Certificate under this Section 5.03, the Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Any replacement Certificate issued pursuant to this Section 5.03 shall
constitute complete and indefeasible evidence of ownership, as if originally
issued, whether or not the lost, stolen or destroyed Certificate is found at
any
time.
Section
5.04 Persons
Deemed Owners.
The
Servicer, the Trustee and any agent of the Servicer or the Trustee may treat
the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer,
the
Trustee or any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
Section
5.05 Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders and/or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that those 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 that those
Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor or Servicer requests such information in writing from the Trustee,
then the Trustee shall, within ten (10) Business Days after the receipt of
the
request, provide the Depositor, the Servicer or those Certificateholders and/or
Certificate Owners at the recipients’ expense the most recent list of the
Certificateholders of the Trust Fund held by the Trustee. The Depositor and
every Certificateholder, by receiving and holding a Certificate, agree that
the
Trustee shall not be held accountable because of the disclosure of any such
information as to the list of the Certificateholders and/or Certificate Owners
hereunder, regardless of the source from which the information was
derived.
Section
5.06 Maintenance
of Office or Agency.
The
Trustee will maintain at its expense an office or agency in the United States.
Currently, that office is located at DB Services Tennessee, 000 Xxxxxxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Transfer Unit, where
Certificates may be surrendered for registration of transfer or exchange. The
Trustee will give prompt written notice to the Certificateholders of any change
in the location of its office or agency.
ARTICLE VI
THE
DEPOSITOR AND THE SERVICER
Section
6.01 Respective
Liabilities of the Depositor and the Servicer.
The
Depositor and the Servicer shall each be liable in accordance herewith only
to
the extent of the obligations specifically and respectively imposed upon and
undertaken by them herein.
Section
6.02 Merger
or Consolidation of the Depositor or the Servicer.
The
Depositor and the Servicer will each keep in full effect its existence, rights
and franchises as a corporation or federal savings bank, as the case may be,
under the laws of the United States or under the laws of one of the states
thereof and will each obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any
Person into which the Depositor or the Servicer may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
or the Servicer shall be a party, or any person succeeding to the business
of
the Depositor or the Servicer, shall be the successor of the Depositor or the
Servicer, as the case may be, hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The successor or surviving Person to
the
Servicer must be qualified to sell mortgage loans to, and to service mortgage
loans on behalf of, FNMA or FHLMC.
Section
6.03 Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others.
None
of
the Depositor, the Seller, the Servicer or any of the directors, officers,
employees, or agents of the Depositor, the Seller or the Servicer shall be
liable to the Certificateholders for any action taken or for refraining from
taking any action in good faith pursuant to this Agreement, or for errors in
judgment. This provision shall not protect the Depositor, the Seller, the
Servicer, or any such person against any breach of representations or warranties
made by it herein or protect the Depositor, the Seller, the Servicer, or any
such person from any liability that would otherwise be imposed for willful
misfeasance, bad faith, or gross negligence in the performance of duties or
because of reckless disregard of obligations and duties hereunder.
The
Depositor, the Seller, the Servicer and any director, officer, employee, or
agent of the Depositor, the Seller or the Servicer may rely in good faith on
any
document of any kind prima facie
properly
executed and submitted by any Person respecting any matters arising
hereunder.
The
Depositor, the Seller, the Servicer and any director, officer, employee, or
agent of the Depositor, the Seller or the Servicer shall be indemnified by
the
Trust Fund for any loss, liability, or expense incurred in connection with
any
audit, controversy, or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates,
other than any loss, liability, or expense related to any specific Mortgage
Loans (except any loss, liability, or expense otherwise reimbursable pursuant
to
this Agreement) and any loss, liability, or expense incurred because of willful
misfeasance, bad faith, or gross negligence in the performance of duties
hereunder or because of reckless disregard of duties hereunder.
None
of
the Depositor, the Seller or the Servicer shall be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that any of the Depositor, the Seller
or the Servicer may in its discretion undertake any such legal action that
it
may deem appropriate in respect of this Agreement and the rights and duties
of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder or with respect to the Mortgage Loans. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Seller, and the Servicer shall be entitled to be reimbursed therefor out of
the
Certificate Account.
Section
6.04 Limitation
on Resignation of the Servicer.
The
Servicer shall not resign from the obligations hereby imposed on it except
(a)
upon appointment of a successor servicer that is reasonably acceptable to the
Trustee and receipt by the Trustee of a letter from each Rating Agency that
the
resignation and appointment will not result in a downgrading of the rating
of
any of the Certificates or (b) upon determination that its duties hereunder
are
no longer permissible under applicable law. Any such determination under clause
(b) permitting the resignation of the Servicer shall be evidenced by an Opinion
of Counsel to that effect delivered to the Trustee. No such resignation shall
become effective until the Trustee or a successor Servicer shall have assumed
the Servicer’s obligations hereunder.
Section
6.05 Inspection.
The
Servicer, in its capacity as Servicer, shall afford the Trustee, upon reasonable
advance notice, during normal business hours, access to all records maintained
by the Servicer in respect of its rights and obligations hereunder and access
to
officers of the Servicer responsible for such obligations. Upon request, the
Servicer shall furnish to the Trustee its most recent publicly available
financial statements and any other information relating to its capacity to
perform its obligations under this Agreement.
ARTICLE
VII
DEFAULT
Section
7.01 Events
of Default.
“Event
of Default,”
wherever used herein, means any one of the following events:
(a) any
failure by the Servicer to deposit in the Certificate Account or remit to the
Trustee any payment (other than a payment required to be made under Section
4.01) required to be made by it under this Agreement, which failure continues
unremedied for five days after the date on which written notice of the failure
has been given to the Servicer by the Trustee or the Depositor, or to the
Servicer and the Trustee by the Holders of Certificates of any Class evidencing
not less than 25% of the aggregate Percentage Interests of the Class;
or
(b) any
failure by the Servicer to observe or perform in any material respect any other
of the covenants or agreements on the part of the Servicer contained in this
Agreement, which failure materially affects the rights of Certificateholders
and
continues unremedied for a period of sixty (60) days after the date on which
written notice of such failure shall have been given to the Servicer by the
Trustee, or the Depositor, or to the Servicer, and the Trustee by the Holders
of
Certificates of any Class evidencing not less than 25% of the Percentage
Interests of the Class; provided that the sixty day cure period shall not apply
to the initial delivery of the Mortgage File for Delayed Delivery Mortgage
Loans
nor the failure to repurchase or substitute in lieu thereof; or
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises for the appointment of a receiver, conservator or liquidator in
any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60)
consecutive days; or
(d) the
Servicer shall consent to the appointment of a receiver, conservator or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the Servicer or all or
substantially all of the property of the Servicer; or
(e) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of, or commence a voluntary case
under, any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(f) the
Servicer shall fail (i) to make an Advance on the Servicer Advance Date or
(ii)
to reimburse in full the Trustee within two days of the Servicer Advance Date
for any Advance made by the Trustee pursuant to Section 4.01(b).
If
an
Event of Default described in clauses (a) through (f) of this Section 7.01
shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee may, or at the direction of the
Holders of Certificates of any Class evidencing not less than 662/3%
of the
Percentage Interests of the Class, the Trustee shall by notice in writing to
the
Servicer (with a copy to each Rating Agency), terminate all of the rights and
obligations of the Servicer under this Agreement and in the Mortgage Loans
and
the proceeds thereof, other than its rights as a Certificateholder hereunder.
On
and after the receipt by the Servicer of such written notice, all authority
and
power of the Servicer hereunder, whether with respect to the Mortgage Loans
or
otherwise, shall pass to and be vested in the Trustee. The Trustee shall make
any Advance that the Servicer failed to make, whether or not the obligations
of
the Servicer have been terminated pursuant to this Section.
The
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the Servicer, as attorney-in-fact or otherwise, any documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Servicer to
pay
amounts owed pursuant to Article VIII. The Servicer agrees to cooperate with
the
Trustee in effecting the termination of the Servicer’s responsibilities and
rights hereunder, including the transfer to the Trustee of all cash amounts
that
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the Mortgage Loans. If the Servicer fails to make
any
Advance required under Section 4.01 of this Agreement, thereby triggering an
Event of Default described in clause (f) of this Section 7.01, the Trustee
shall
make such Advance on that Distribution Date.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer shall
be entitled to receive, out of any late collection of a Scheduled Payment on
a
Mortgage Loan that was due before the notice terminating the Servicer’s rights
and obligations as Servicer hereunder and received after the notice, that
portion thereof to which the Servicer would have been entitled pursuant to
Sections 3.09(a)(i) through (v) and (vii), and any other amounts payable to
the
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 Servicer receives a notice of termination pursuant to Section
7.01, the Trustee shall, subject to and to the extent provided in Section 3.05,
be the successor to the Servicer in its capacity as Servicer under this
Agreement and the transactions provided for herein and shall be subject to
all
the responsibilities, duties and liabilities (other than any liabilities
incurred by the Servicer prior to its termination hereunder) relating thereto
placed on the Servicer by the terms hereof and applicable law, including the
obligation to make Advances pursuant to Section 4.01. As compensation therefor,
the Trustee shall be entitled to all funds relating to the Mortgage Loans that
the Servicer would have been entitled to charge to the Certificate Account
or
Distribution Account if the Servicer had continued to act
hereunder.
Notwithstanding
the foregoing, if the Trustee has become the successor to the Servicer in
accordance with Section 7.01, the Trustee may, if it shall be unwilling to
so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution, the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Servicer hereunder in the assumption of all or any part of
the
obligations of the Servicer hereunder.
Any
successor to the Servicer shall be an institution that is a FNMA and FHLMC
approved seller/servicer in good standing, that has a net worth of at least
$15,000,000, that is willing to service the Mortgage Loans and that executes
and
delivers to the Depositor and the Trustee an agreement accepting such delegation
and assignment, containing an assumption by it of the rights and obligations
of
the Servicer (other than liabilities of the Servicer under Section 6.03 incurred
before termination of the Servicer under Section 7.01), with like effect as
if
originally named as a party to this Agreement; provided,
that
each Rating Agency acknowledges that its rating of the Certificates in effect
immediately before the assignment and delegation will not be qualified or
reduced as a result of the assignment and delegation.
Pending
appointment of a successor to the Servicer hereunder, the Trustee, unless the
Trustee is prohibited by law from so acting, shall, subject to Section 3.05,
act
in such capacity as hereinabove provided. In connection with such appointment
and assumption, the Trustee may make such arrangements for the compensation
of
the successor out of payments on Mortgage Loans as it and the successor shall
agree. No such compensation shall exceed the Servicing Fee Rate. The Trustee
and
the successor shall take any action, consistent with this Agreement, necessary
to effectuate the succession.
Neither
the Trustee nor any other successor Servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or
any
delay in performing, any duties hereunder, in either case caused by the failure
of the Servicer to deliver or provide, or any delay in delivering or providing,
any cash, information, documents or records to it. The appointment of a
successor Servicer shall not affect any liability of the predecessor Servicer
that my have arisen under this Agreement before its termination as Servicer
to
pay any deductible under an insurance policy, to indemnify any person, or
otherwise, nor shall any successor Servicer be liable for any acts or omissions
of the predecessor Servicer or for any breach by the Servicer of any of its
representations and warranties contained in this Agreement.
In
connection with the termination or resignation of the Servicer hereunder, either
(i) the successor Servicer, including the Trustee if the Trustee is acting
as
successor Servicer, shall represent and warrant that it is a member of MERS
in
good standing and shall agree to comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, or (ii) the predecessor Servicer shall cooperate
with the successor Servicer either (x) in causing MERS to execute and deliver
an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS® System to the
successor Servicer or (y) in causing MERS to designate on the MERS® System the
successor Servicer as the servicer of such Mortgage Loan. The predecessor
Servicer shall file or cause to be filed any such assignment in the appropriate
recording office. The successor Servicer shall cause such assignment to be
delivered to the Trustee promptly upon receipt of the original with evidence
of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Any
successor to the Servicer as Servicer shall give notice of the change of
servicer to the Mortgagors and shall, during the term of its service as
Servicer, maintain in force the policy or policies that the Servicer is required
to maintain pursuant to Section 6.05.
Section
7.03 Notification
to Certificateholders.
(a) Upon
any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders and each Rating
Agency.
(b) Within
sixty (60) days after the occurrence of any Event of Default, the Trustee shall
transmit by mail to all Certificateholders and each Rating Agency notice of
each
Event of Default hereunder known to the Trustee, unless the Event of Default
has
been cured or waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE AND THE SUPPLEMENTAL INTEREST TRUST TRUSTEE
Section
8.01 Duties
of the Trustee and the Supplemental Interest Trust
Trustee.
The
Trustee, before the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, and the Supplemental Interest
Trust Trustee shall undertake to perform such duties and only the duties
specifically set forth in this Agreement. If an Event of Default has occurred
and remains uncured, the Trustee shall exercise such of the rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.
Each
of
the Trustee and the Supplemental Interest Trust Trustee, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders
or
other instruments furnished to the Trustee or the Supplemental Interest Trust
Trustee, as applicable, that are specifically required to be furnished pursuant
to any provision of this Agreement, shall examine them to determine whether
they
are in the form required by this Agreement. If any such instrument is found
not
to conform to the requirements of this Agreement in a material manner, the
Trustee or the Supplemental Interest Trust Trustee, as applicable, shall take
any action it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee’s or the Supplemental Interest Trust
Trustee’s satisfaction, the Trustee or the Supplemental Interest Trust Trustee,
as applicable, shall notify the Certificateholders of the defect. Neither the
Trustee nor the Supplemental Interest Trust Trustee shall be responsible for
the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Supplemental Interest Trust Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct.
Unless
an
Event of Default known to the Trustee has occurred and is
continuing:
(a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of the duties specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee,
and the Trustee may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Agreement
that it believed in good faith to be genuine and to have been duly executed
by
the proper authorities respecting any matters arising hereunder;
(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction of
the
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 and the Supplemental Interest Trust
Trustee.
Except
as
otherwise provided in Section 8.01:
(a) each
of
the Trustee and the Supplemental Interest Trust 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 neither
the Trustee nor the Supplemental Interest Trust Trustee shall have any
responsibility to ascertain or confirm the genuineness of any signature of
any
such party or parties;
(b) each
of
the Trustee and the Supplemental Interest Trust 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) neither
the Trustee nor the Supplemental Interest Trust Trustee shall 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) neither
the Trustee nor the Supplemental Interest Trust Trustee shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing
so
to do by the Holders of Certificates evidencing not less than 25% of the Voting
Rights allocated to each Class of Certificates;
(e) each
of
the Trustee and the Supplemental Interest Trust 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 neither the Trustee nor the
Supplemental Interest Trust Trustee shall be responsible for any misconduct
or
negligence on the part of any agents, accountants or attorneys appointed with
due care by it hereunder;
(f) neither
the Trustee nor the Supplemental Interest Trust Trustee shall 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) neither
the Trustee nor the Supplemental Interest Trust Trustee shall 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 or Swap
Provider Trigger Event until a Responsible Officer of the Trustee or the
Supplemental Interest Trust Trustee, as applicable, shall have received written
notice thereof;
(i) neither
the Trustee nor the Supplemental Interest Trust Trustee need exercise any of
the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation in connection with this Agreement at the request,
order
or direction of the Certificateholders pursuant to this Agreement unless the
Certificateholders shall have offered to the Trustee or the Supplemental
Interest Trust Trustee, as applicable, reasonable security or indemnity
satisfactory to the Trustee or the Supplemental Interest Trust Trustee, as
applicable, against the costs, expenses and liabilities that may be incurred
in
connection therewith;
(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 Investments; and
(k) neither
the Trustee nor the Supplemental Interest Trust Trustee shall knowingly take
any
action that would cause the Trust Fund to fail to qualify as a qualifying
special purpose entity.
In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available for such party in order to enable the Trustee to comply with
Applicable Law.
Section
8.03 Trustee
and Supplemental Interest Trust Trustee Not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Seller, as the case may be, and neither
the
Trustee nor the Supplemental Interest Trust Trustee assumes any responsibility
for their correctness. Neither the Trustee nor the Supplemental Interest Trust
Trustee makes any representations as to the validity or sufficiency of this
Agreement, the Certificates, any Mortgage Loan or related document or MERS
or
the MERS® System other than with respect to the Trustee’s execution and
countersignature of the Certificates. Neither the Trustee nor the Supplemental
Interest Trust Trustee shall be accountable for the use or application by the
Depositor or the Servicer of any funds paid to the Depositor or the Servicer
in
respect of the Mortgage Loans or deposited in or withdrawn from the Certificate
Account by the Depositor or the Servicer.
Except
as
provided in Section 2.01(c), the Trustee shall have no responsibility for filing
or recording any financing or continuation statement in any public office at
any
time or to otherwise perfect or maintain the perfection of any security interest
or lien granted to it hereunder (unless the Trustee shall have become the
successor Servicer).
The
Trustee 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
and Supplemental Interest Trust Trustee May Own
Certificates.
Each
of
the Trustee and the Supplemental Interest Trust 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 or the Supplemental
Interest Trust Trustee, as applicable.
Section
8.05 Trustee’s
Fees and Expenses.
As
compensation for its activities under this Agreement as Trustee and Supplemental
Interest Trust Trustee, the Trustee may withdraw from the Distribution Account
on each Distribution Date the Trustee Fee for the Distribution Date. The Trustee
and the Supplemental Interest Trust Trustee and any director, officer, employee
or agent of the Trustee or the Supplemental Interest Trust Trustee, as
applicable, shall be indemnified by the Seller against any loss, liability
or
expense (including reasonable attorney’s fees) resulting from any error in any
tax or information return prepared by the Servicer or incurred in connection
with any claim or legal action relating to this Agreement, the Certificates
or
the performance of any of the Trustee’s or the Supplemental Interest Trust
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 or the Supplemental Interest Trust Trustee’s
duties under this Agreement. This indemnity shall survive the termination of
this Agreement or the resignation or removal of the Trustee or the Supplemental
Interest Trust Trustee under this Agreement. Without limiting the foregoing,
except as otherwise agreed upon in writing by the Depositor and the Trustee
or
the Supplemental Interest Trust Trustee, as applicable, and except for any
expense, disbursement or advance arising from the Trustee’s or the Supplemental
Interest Trust Trustee’s negligence, bad faith or willful misconduct, the Seller
shall pay or reimburse the Trustee or the Supplemental Interest Trust Trustee,
as applicable, for all reasonable expenses, disbursements and advances incurred
or made by the Trustee or the Supplemental Interest Trust Trustee, as
applicable, in accordance with this Agreement with respect to (i) the reasonable
compensation, expenses and disbursements of its counsel not associated with
the
closing of the issuance of the Certificates; (ii) the reasonable compensation,
expenses and disbursements of any accountant, engineer or appraiser that is
not
regularly employed by the Trustee or the Supplemental Interest Trust Trustee,
to
the extent that the Trustee or the Supplemental Interest Trust Trustee must
engage them to perform services under this Agreement; and (iii) printing and
engraving expenses in connection with preparing any Definitive
Certificates.
Except
as
otherwise provided in this Agreement, neither the Trustee nor the Supplemental
Interest Trust Trustee shall be entitled to payment or reimbursement for any
routine ongoing expenses incurred by the Trustee or the Supplemental Interest
Trust Trustee, as applicable, in the ordinary course of its duties as Trustee,
Supplemental Interest Trust Trustee, Registrar or Paying Agent under this
Agreement or for any other expenses.
Section
8.06 Eligibility
Requirements for the Trustee and the Supplemental Interest Trust
Trustee.
Each
of
the Trustee and the Supplemental Interest Trust Trustee hereunder shall at
all
times be a corporation or association organized and doing business under the
laws of a state or the United States of America, authorized under such laws
to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority and with a credit rating that would not cause any of the Rating
Agencies to reduce their respective then-current ratings of the Certificates
(or, having provided such security from time to time, as is sufficient to avoid
such reduction) as evidenced in writing by each Rating Agency. If such
corporation or association publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 8.06 the combined capital
and
surplus of such corporation or association shall be deemed to be its combined
capital and surplus as disclosed in its most recent report of condition so
published. If at any time the Trustee or the Supplemental Interest Trust
Trustee, as applicable, ceases to be eligible in accordance with this Section
8.06, the Trustee or the Supplemental Interest Trust Trustee, as applicable,
shall resign immediately in the manner and with the effect specified in Section
8.07. The entities serving as Trustee and Supplemental Interest Trust Trustee
may have normal banking and trust relationships with the Depositor and its
affiliates or the Servicer and its affiliates. Neither the Trustee nor the
Supplemental Interest Trust Trustee may be an affiliate of the Seller, the
Depositor or the Servicer, other than the Trustee in its role as successor
to
the Servicer. The principal office of the Trustee and the Supplemental Interest
Trust Trustee (other than the initial Trustee and Supplemental Interest Trust
Trustee) shall be in a state with respect to which an Opinion of Counsel has
been delivered to the Trustee or the Supplemental Interest Trust Trustee, as
applicable, at the time such party is appointed Trustee or Supplemental Interest
Trust Trustee, as applicable, to the effect that the Trust will not be a taxable
entity under the laws of that state.
Section
8.07 Resignation
and Removal of the Trustee and the Supplemental Interest Trust
Trustee.
Each
of
the Trustee and the Supplemental Interest Trust Trustee may at any time resign
and be discharged from the trusts hereby created by giving written notice of
resignation to the Depositor, the Servicer and each Rating Agency not less
than
sixty (60) days before the date specified in the notice, when, subject to
Section 8.08, the resignation is to take effect, and acceptance by a successor
trustee in accordance with Section 8.08 meeting the qualifications in Section
8.06. If no successor trustee meeting those qualifications shall have been
so
appointed and have accepted appointment within thirty (30) days after the notice
of resignation, the resigning Trustee or Supplemental Interest Trust Trustee,
as
applicable, may petition any court of competent jurisdiction for the appointment
of a successor trustee or supplemental interest trust trustee.
If
at any
time the Trustee or the Supplemental Interest Trust 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 or the
Supplemental Interest Trust 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 the Supplemental Interest Trust Trustee, as applicable, 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, the Supplemental Interest Trust Trustee or the Trust Fund
is
located and the imposition of the tax would be avoided by the appointment of
a
different trustee or administrator, as applicable, then the Depositor or the
Servicer may remove the Trustee or the Supplemental Interest Trust Trustee,
as
applicable, and appoint a successor trustee or supplemental interest trust
trustee by written instrument, in triplicate, one copy of which shall be
delivered to the Trustee or the Supplemental Interest Trust Trustee, as
applicable, one copy to the Servicer and one copy to the successor trustee
or
supplemental interest trust trustee.
The
Holders of Certificates (other than the Servicer, Seller, Depositor or any
affiliates or agents thereof) entitled to at least 51% of the Voting Rights
may
at any time remove the Trustee and appoint a successor trustee or supplemental
interest trust trustee by written instrument or instruments, in triplicate,
signed by the Holders or their attorneys-in-fact duly authorized, as the case
may be, one complete set of which shall be delivered by the successor Trustee
or
Supplemental Interest Trust Trustee, as applicable, to the Servicer, one
complete set to the Trustee or the Supplemental Interest Trust Trustee so
removed, and one complete set to the successor so appointed. The successor
trustee or supplemental interest trust trustee, as applicable, shall notify
each
Rating Agency of any removal of the Trustee or the Supplemental Interest Trust
Trustee.
Any
resignation or removal of the Trustee or the Supplemental Interest Trust Trustee
and appointment of a successor trustee or supplemental interest trust trustee,
as applicable, pursuant to this Section 8.07 shall become effective upon
acceptance of appointment by the successor trustee or Supplemental Interest
Trust Trustee as provided in Section 8.08.
Section
8.08 Successor
Trustee or Supplemental Interest Trust Trustee.
Any
successor trustee or supplemental interest trust trustee appointed as provided
in Section 8.07 shall execute, acknowledge and deliver to the Depositor, its
predecessor trustee or administrator and the Servicer an instrument accepting
its appointment hereunder and thereupon the resignation or removal of the
predecessor trustee or administrator shall become effective and the successor
trustee or supplemental interest trust trustee, without any further act, deed
or
conveyance, shall become fully vested with all the rights and obligations of its
predecessor hereunder, with the like effect as if originally named as Trustee
or
Supplemental Interest Trust Trustee herein. The Depositor, the Servicer and
the
predecessor trustee or administrator, as applicable, 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 or
supplemental interest trust trustee, as applicable, all such rights and
obligations.
No
successor trustee or supplemental interest trust trustee shall accept
appointment as provided in this Section 8.08 unless at the time of its
acceptance, the successor trustee or supplemental interest trust 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 or supplemental interest trust
trustee as provided in this Section 8.08, the Depositor shall mail notice of
the
succession of such trustee or administrator hereunder to all Holders of
Certificates. If the Depositor fails to mail the notice within ten (10) days
after acceptance of appointment by the successor trustee or supplemental
interest trust trustee, the successor trustee or supplemental interest trust
trustee, as applicable, shall cause the notice to be mailed at the expense
of
the Depositor.
Section
8.09 Merger
or Consolidation of the Trustee or the Supplemental Interest Trust
Trustee.
Any
corporation into which the Trustee or the Supplemental Interest Trust 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 or the Supplemental Interest Trust Trustee shall be a party, or any
corporation succeeding to the business of the Trustee or the Supplemental
Interest Trust Trustee, shall be the successor of the Trustee or the
Supplemental Interest Trust Trustee, as applicable, hereunder if the successor
corporation is eligible under Section 8.06 without the execution or filing
of
any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Section
8.10 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund
or property securing any Mortgage Note may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee or co-trustees jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to
vest
in them, in such capacity and for the benefit of the Certificateholders, such
title to the Trust Fund or any part thereof, whichever is applicable, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee may consider
appropriate. If the Servicer shall not have joined in such appointment within
fifteen (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
and
obligations conferred or imposed upon the Trustee, except for the obligation
of
the Trustee under this Agreement to advance funds on behalf of the Servicer,
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights and obligations (including holding title to the applicable Trust Fund
or
any portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Trustee;
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c) The
Trustee, may at any time accept the resignation of or remove any separate
trustee or co-trustee; and
(d) The
Servicer, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement, and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request, or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign, or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section
8.11 Tax
Matters.
It
is
intended that the assets with respect to which any REMIC election pertaining
to
the Trust Fund is to be made, as described in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent
(and
the Trustee is hereby appointed to act as agent) on behalf of any REMIC created
hereunder and that in such capacity it shall:
(a) prepare
and file in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file with the Internal Revenue Service and
applicable state or local tax authorities income tax or information returns
for
each taxable year with respect to each REMIC created hereunder 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 (30) 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 8811, 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
assumptions set forth in “Yield, Prepayment and Maturity
Considerations─Structuring Assumptions” in the Prospectus
Supplement;
(e) provide
information necessary for the computation of tax imposed on the transfer of
a
Residual Certificate to a Person that is not a Permitted Transferee, or an
agent
(including a broker, nominee or other middleman) of a Non-Permitted Transferee,
or a pass-through entity in which a Non-Permitted Transferee is the record
holder of an interest (the reasonable cost of computing and furnishing such
information may be charged to the Person liable for such tax);
(f) to
the
extent that they are under its control, conduct matters relating to such assets
at all times that any Certificates are outstanding so as to maintain the status
of any REMIC created hereunder as a REMIC under the REMIC
Provisions;
(g) pay,
from
the sources specified in the last paragraph of this Section 8.11, the amount
of
any federal or state tax, including prohibited transaction taxes as described
below, imposed on any REMIC created under this Agreement before its termination
when and as the same shall be due and payable (but such obligation shall not
prevent the Trustee or any other appropriate Person from contesting any such
tax
in appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings);
(h) 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;
(i) 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;
(j) as
and
when necessary and appropriate, represent any REMIC created under this Agreement
in any administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of any REMIC created under this Agreement, enter into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of any REMIC created under this Agreement,
and otherwise act on behalf of any REMIC created under this Agreement in
relation to any tax matter or controversy involving it; and
(k) none
of
the Depositor, Servicer or the Trustee shall knowingly or intentionally take
any
action or omit to take any action that would cause the termination of any REMIC,
or result in the imposition of any non-indemnification taxes on any REMIC,
created under this Agreement.
(l) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax Matters Person”) with respect to REMIC I, REMIC II
and REMIC III and shall act as Tax Matters Person for REMIC I, REMIC II and
REMIC III. The Holder of the Class R-X Certificate at any time holding the
largest Percentage Interest thereof shall be the Tax Matters Person with respect
to REMIC IV, REMIC V and REMIC VI and shall act as Tax Matters Person for REMIC
IV, REMIC V and REMIC VI. The Trustee, as agent for the Tax Matters Person,
shall perform on behalf of each REMIC all reporting and other tax compliance
duties that are the responsibility of such REMIC under the Code, the REMIC
Provisions, or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority. Among its other duties, if required
by
the Code, the REMIC Provisions, or other such guidance, the Trustee, as agent
for the Tax Matters Person, shall provide (i) to the Treasury or other
governmental authority such information as is necessary for the application
of
any tax relating to the transfer of a Residual Certificate to any disqualified
person or organization and (ii) to the Certificateholders such information
or
reports as are required by the Code or REMIC Provisions. The Trustee, as agent
for the Tax Matters Person, shall represent each REMIC in any administrative
or
judicial proceedings relating to an examination or audit by any governmental
taxing authority, request an administrative adjustment as to any taxable year
of
any REMIC, enter into settlement agreements with any government taxing agency,
extend any statute of limitations relating to any item of any REMIC and
otherwise act on behalf of any REMIC in relation to any tax matter involving
the
Trust.
To
enable
the Trustee to perform its duties under this Agreement, the Depositor shall
provide to the Trustee within ten (10) days after the Closing Date all
information or data that the Trustee requests in writing and determines to
be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class
of
Certificates of the right to receive Net WAC Cap Carry Forward Amounts from
the
Excess Reserve Fund Account. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor any additional information or
data that the Trustee may, from time to time, reasonably request to enable
the
Trustee to perform its duties under this Agreement. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or expenses
of the Trustee arising from any errors or miscalculations of the Trustee that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee on a timely basis.
If
any
tax is imposed on “prohibited transactions” of any REMIC as defined in Section
860F(a)(2) of the Code, on the “net income from foreclosure property” of any
REMIC created under this Agreement as defined in Section 860G(c) of the Code,
on
any contribution to any REMIC created under this Agreement after the Startup
Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on any REMIC created under this Agreement pursuant
to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, the tax shall be paid by (i) the Trustee
if such tax or any other tax arises out of or results from negligence of the
Trustee in the performance of any of its obligations under this Agreement,
(ii)
the Servicer or the Seller, in the case of any such minimum tax, if such tax
arises out of or results from a breach by the Servicer or Seller of any of
their
obligations under this Agreement, (iii) the Seller if such tax arises out of
or
results from the Seller’s obligation to repurchase a Mortgage Loan pursuant to
Section 2.01, 2.02, 2.03 or 2.05, or (iv) in all other cases, or if the Trustee,
the Servicer or the Seller fails to honor its obligations under the preceding
clauses (i), (ii) or (iii), any such tax will be paid with amounts otherwise
to
be distributed to the Certificateholders, as provided in Section
3.09(b).
The
Trustee shall treat the Excess Reserve Fund Account as an outside reserve fund
within the meaning of Treasury Regulation Section 1.860G-2(h) that is owned
by
the holders of the Class C Certificates and that is not an asset of any REMIC
created hereunder. The Trustee shall treat the rights of the holders of each
Class of Certificates (other than the Class C, Class P, Class R and Class R-X
Certificates) to receive payments from the Excess Reserve Fund Account as rights
in an interest rate corridor contract written by the holders of the Class C
Certificates in respect of any Net WAC Shortfalls, in each case in favor of
the
other Certificateholders. Thus, each Certificate (other than the Class C, Class
P, Class R and Class R-X Certificates) shall be treated as representing
ownership of not only a REMIC regular interest, but also ownership of an
interest in an interest rate corridor contract.
Section
8.12 [Reserved]
Section
8.13 [Reserved]
Section
8.14 [Reserved]
Section
8.15 Access
to Records of Trustee.
The
Trustee shall afford the Seller, the Depositor, the Servicer and each
Certificateholder or Certificate Owner, upon reasonable notice during normal
business hours, access to all records maintained by the Trustee in respect
of
its duties under this Agreement and access to officers of the Trustee
responsible for performing its duties. Upon request, the Trustee shall furnish
the Depositor, the Servicer and any requesting Certificateholder or Certificate
Owner with its most recent financial statements. The Trustee shall cooperate
fully with the Seller, the Servicer, the Depositor and the Certificateholder
or
Certificate Owner for review and copying any books, documents or records
requested with respect to the Trustee’s duties under this Agreement. The Seller,
the Depositor, the Servicer and the Certificateholder or Certificate Owner
shall
not have any responsibility or liability for any action for failure to act
by
the Trustee and are not obligated to supervise the performance of the Trustee
under this Agreement or otherwise.
Section
8.16 Suits
for Enforcement.
If
an
Event of Default or other material default by the Servicer or the Depositor
under this Agreement occurs and is continuing, at the direction of the
Certificateholders comprising in the aggregate a Majority in Interest, the
Trustee shall proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by counsel, and subject
to the foregoing, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
ARTICLE
IX
TERMINATION
Section
9.01 Termination
upon Liquidation or Purchase of the Mortgage Loans.
Subject
to Section 9.03, the obligations of the Depositor, the Servicer and the Trustee
created hereby with respect to the
Trust
Fund shall terminate upon the earlier of (a) the purchase by the Servicer of
all
Mortgage Loans (and REO Properties) at the price equal to the sum of (i) 100%
of
the Stated Principal Balance of each Mortgage Loan (other than for REO Property)
plus
one
month’s accrued interest thereon at the applicable Mortgage Rate less the
Servicing Fee Rate; (ii) the lesser
of
(x) the
appraised value of any REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the Servicer
at
the expense of the Servicer and
(y) the
Stated Principal Balance of each Mortgage Loan related to any REO Property,
in
each case plus
accrued
and unpaid interest thereon at the applicable Adjusted Net Mortgage Rate; (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
(iv)
any Net Swap Payments and any Swap Termination Payment payable to the Swap
Provider then due but unpaid or which is payable due to the exercise of such
option; and (b) the later of (i) the maturity or other liquidation (or any
Advance with respect thereto) of the last Mortgage Loan remaining in the Trust
Fund and the disposition of all REO Property; and (ii) the distribution to
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement. In no event shall the trusts created hereby continue beyond
the
earlier of the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to
the Court of St. James’s, living on the date hereof or the Latest Possible
Maturity Date (as defined in the Preliminary Statement).
The
Servicer may repurchase all Mortgage Loans and REO Properties pursuant to clause
(a) above if the aggregate Stated Principal Balance of the Mortgage Loans,
at
the time of the repurchase, is less than ten (10) percent of the aggregate
Cut-off Date Principal Balance of the Mortgage Loans. Upon termination of the
Trust, the Servicer shall succeed to all rights of the Trustee and
Certificateholders with respect to the Trust Fund, other than funds needed
to
make the final distribution, including any assets that were ever part of the
Trust Fund. With such repurchase, the Servicer shall acquire any rights or
potential rights of the Certificateholders or the Trustee to causes of action
against any Person relating to the Mortgage Loans or the origination of the
Mortgage Loans, including, without limitation, the right to enforce any breach
of a representation or warranty made at any time with respect to the Mortgage
Loans. Upon termination of the Trust (as described above) the Trustee shall
provide notice of such termination to the Swap Provider.
Section
9.02 Final
Distribution on the Certificates.
If
on any
Determination Date, the Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Servicer shall direct the Trustee promptly
to send a final distribution notice to each Certificateholder. If the Servicer
elects to terminate the Trust Fund pursuant to clause (a) of Section 9.01,
at
least twenty (20) days before the date notice is to be mailed to the affected
Certificateholders, the Servicer shall notify the Depositor, the
Trustee and the Swap Provider of the date the Servicer intends to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders, mailed not earlier than the 10th day and not later than
the 15th day of the month next preceding the month of such final distribution.
Any such notice shall specify (a) the Distribution Date upon which final
distribution on the Certificates will be made upon presentation and surrender
of
Certificates at the office therein designated, (b) the amount of such final
distribution, (c) the location of the office or agency at which such
presentation and surrender must be made and (d) that the Record Date otherwise
applicable to the Distribution Date is not applicable, distributions being
made
only upon presentation and surrender of the Certificates at the office therein
specified. The Servicer will give such notice to each Rating Agency at the
time
such notice is given to Certificateholders.
If
the
notice is given, the Servicer shall cause all funds in the Certificate Account
to be remitted to the Trustee for deposit in the Distribution Account on the
Business Day before the applicable Distribution Date in an amount equal to
the
final distribution in respect of the Certificates. Upon such final deposit
with
respect to the Trust Fund and the receipt by the Trustee of a Request for
Release therefor, the Trustee shall promptly release to the Servicer the
Mortgage Files for the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the final
Distribution Date and in the order stated in Section 4.02, in proportion to
their respective Percentage Interests, with respect to Certificateholders of
the
same Class, an amount equal to (i) as to each Class of Regular Certificates
(except the Class C Certificate), its Certificate Balance plus
for each
such Class accrued interest thereon in the case of an interest-bearing
Certificate and (ii) as to the Residual Certificates, any amount remaining
on
deposit in the Distribution Account (other than the amounts retained to meet
claims) after application pursuant to clause (i) above. By acceptance of the
Residual Certificates, the holders of the Residual Certificates agree, in
connection with any termination hereunder, that their rights to receive any
amounts pursuant to clause (ii) in the immediately preceding sentence hereby
are
assigned and transferred and, to the extent received in respect of such
termination, to pay any such amounts to the holders of the Class C
Certificates.
If
any
affected Certificateholder does not surrender its Certificates for cancellation
within six (6) 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 (6) months after
the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets that remain a part of the Trust Fund. If
within one year after the second notice all Certificates shall not have been
surrendered for cancellation, the Class Residual Certificateholders shall be
entitled to all unclaimed funds and other assets of the Trust Fund that remain
subject hereto.
Section
9.03 Additional
Termination Requirements.
If
the
Servicer exercises its purchase option with respect to the Mortgage Loans as
provided in Section 9.01, the Trust Fund shall be terminated in accordance
with
the following additional requirements, unless the Trustee has been supplied
with
an Opinion of Counsel, at the expense of the Servicer, to the effect that the
failure to comply with the requirements of this Section 9.03 will not (i) result
in the imposition of taxes on “prohibited transactions” on any REMIC created
hereunder as defined in Section 860F of the Code or (ii) cause any REMIC created
under this Agreement to fail to qualify as a REMIC at any time that any
Certificates are outstanding.
The
Trustee shall sell all of the assets of the Trust Fund to the Servicer, as
applicable, and, within ninety (90) days of the sale, shall distribute to the
Certificateholders the proceeds of the sale in complete liquidation of any
REMIC
created hereunder.
The
Trustee shall attach a statement to the final federal income tax return for
each
of any REMIC created hereunder stating that pursuant to Treasury Regulation
Section 1.860F-1, the first day of the ninety (90) day liquidation period for
each the REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Servicer.
Section
9.04 Termination
of the Supplemental Interest Trust.
The
obligations of the Depositor, the Trustee and the Supplemental Interest Trust
Trustee created hereby with respect to the Supplemental Interest Trust shall
terminate upon the earlier of (a) the termination of the Swap Agreement pursuant
to the terms of the Swap Agreement; and (b) the termination of this Agreement
pursuant to Section 9.01.
ARTICLE
X
Miscellaneous
Provisions
Section
10.01 Amendment.
(a) This
Agreement may be amended from time to time by the Depositor, the Servicer,
and
the Trustee and without the consent of any of the
Certificateholders:
(i) to
cure
any ambiguity or mistake,
(ii) to
correct any defective provision herein or to supplement any provision herein
that may be inconsistent with any other provision herein,
(iii) to
conform this Agreement to the Prospectus Supplement,
(iv) to
add to
the duties of the Depositor, the Seller, or the Servicer,
(v) to
modify, alter, amend, add to or rescind any of the terms or provisions contained
in this Agreement to comply with any rules or regulations promulgated by the
Securities and Exchange Commission from time to time,
(vi) to
add
any other provisions with respect to matters or questions arising hereunder,
or
(vii) to
modify, alter, amend, add to, or rescind any of the provisions of this
Agreement.
No
action
pursuant to clauses (iv), (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 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.
(b) The
Trustee, the Depositor and the Servicer also may, at any time and from time
to
time, amend this Agreement and without the consent of the Certificateholders,
in
order to modify, eliminate or add to any of the provisions of this Agreement
to
the extent necessary or helpful to (i) maintain the qualification of any REMIC
created under this Agreement under the Code; (ii) avoid or minimize the risk
of
the imposition of any tax on any REMIC created under this Agreement pursuant
to
the Code that would be a claim at any time before the final redemption of the
Certificates; or (iii) comply with any other requirements of the Code; if the
Trustee has been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that the action is
necessary or helpful for one of those purposes.
(c) This
Agreement may also be amended from time to time by the Depositor, the Servicer,
and the Trustee and the Holders of Certificates evidencing Percentage Interests
aggregating not less than 662/3%
of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates. No amendment shall:
(i) reduce
in
any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of the
Certificate;
(ii) adversely
affect in any material respect the interests of the Holders of any Class of
Certificates in a manner other than as described in (i), without the consent
of
the Holders of Certificates of the Class evidencing, as to the Class, Percentage
Interests aggregating not less than 662/3%;
(iii) amend,
modify, add to, rescind, or alter in any respect Section 10.13, notwithstanding
any contrary provision of this Agreement, without the consent of the Holders
of
Certificates evidencing Percentage Interests aggregating not less than
662/3%,
and
for this purpose no Certificates held by the Seller, the Depositor, or any
Affiliate of either of them shall be eligible to vote or be considered
Outstanding; or
(iv) reduce
the aforesaid percentages of Certificates the Holders of which are required
to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement regarding Voting Rights, no amendment
which affects one or more Classes held by the Depositor, the Servicer, the
Seller or any Affiliates as described in this Section 10.01(c) shall be
effective without the consent of the Depositor, the Servicer, the Seller or
any
of their Affiliates, as applicable, to such amendments.
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 the amendment will not cause the imposition of any
tax
on any REMIC or the Certificateholders or cause any REMIC to fail to qualify
as
a REMIC at any time that any Certificates are outstanding and (ii) because
the
Trust Fund is required to be a Qualifying Special Purpose Entity (as that term
is defined in Statement of Financial Accounting Standards No. 140 (“SFAS
140”)),
in
order for the Seller to continue to account for the transfer of the Mortgage
Loans under this Agreement as a sale under SFAS 140, prior to the parties hereto
entering into such an amendment, the Trustee shall receive an Officer’s
Certificate, which shall not be an expense of the Trustee or the Trust Fund,
to
the effect that such amendment would not “significantly change” (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
the Trust Fund to fail to qualify as a Qualifying Special Purpose
Entity.
Notwithstanding
any of the other provisions of this Section 10.01, none of the Depositor, the
Servicer, the Supplemental Interest Trust Trustee or the Trustee shall enter
into any amendment which would (i) have an adverse impact on the rights of
the
Swap Provider under Section 4.02, Section 4.05 or Section 9.01 of the Interest
Rate Swap Agreement or (ii) have a materially adverse effect on the Swap
Provider, without the prior written consent of the Swap Provider.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of the amendment to each Certificateholder and each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 10.01
to approve the particular form of any proposed amendment, but it shall be
sufficient if the consent approves its substance. The manner of obtaining
consents and of evidencing the authorization of their execution by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall not be an expense of the
Trustee or the Trust Fund), satisfactory to the Trustee that (i) the amendment
is permitted by this Agreement and all conditions precedent to the amendment
have been satisfied; and (ii) either (A) the amendment does not adversely affect
in any material respect the interests of any Certificateholder or (B) the
conclusion in the preceding clause (A) is not required to be reached pursuant
to
this Section 10.01.
Section
10.02 Recordation
of Agreement; Counterparts.
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, the recordation to
be
effected by the Servicer at its expense, but only upon receipt of an Opinion
of
Counsel to the effect that the recordation materially and beneficially affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be an original, and all of
which shall constitute but one instrument.
Section
10.03 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section
10.04 Intention
of Parties.
It
is the
express intent of the parties hereto that the conveyance (i) of the Mortgage
Loans by the Seller to the Depositor and (ii) of the Trust Fund by the Depositor
to the Trustee each be, and be construed as, an absolute sale thereof. It is,
further, not the intention of the parties that such conveyances be deemed a
pledge thereof. However, if, notwithstanding the intent of the parties, the
assets are held to be the property of the Seller or Depositor, as the case
may
be, or if for any other reason this Agreement is held or deemed to create a
security interest in either such assets, then (i) this Agreement shall be deemed
to be a security agreement within the meaning of the Uniform Commercial Code
of
the State of New York and (ii) the conveyances provided for in this Agreement
shall be deemed to be an assignment and a grant (i) by the Seller to the
Depositor or (ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The
Seller and the Depositor for the benefit of the Certificateholders shall, to
the
extent consistent with this Agreement, take such actions as may be necessary
to
ensure that, if this Agreement were deemed to create a security interest in
the
Trust Fund, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Depositor shall arrange for filing
any
Uniform Commercial Code continuation statements in connection with any security
interest granted or assigned to the Trustee for the benefit of the
Certificateholders.
Section
10.05 Notices.
(a) The
Trustee shall promptly notify each Rating Agency of each of the following of
which it has actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Servicer or the Trustee and the appointment
of
any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to Section 2.03;
and
5. The
final
payment to Certificateholders.
In
addition, the Trustee shall promptly furnish to each Rating Agency copies of
the
following:
1. Each
report to Certificateholders described in Section 4.03;
2. Each
annual statement as to compliance described in Section 3.17;
3. Each
annual independent public accountants’ servicing report described in Section
3.18; and
4. Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.01, 2.02, 2.03,
2.05 or 3.12.
In
addition, the Trustee shall notify the Swap Provider of any termination of
the
Trust pursuant to Section 9.01.
(b) All
directions, demands and notices hereunder shall be in writing and be duly given
when delivered to
(i) in
the
case of the Depositor, IndyMac MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Capital Markets, or such other address as may
be
hereafter furnished to the Servicer and the Trustee by the
Depositor;
(ii) in
the
case of the Servicer, IndyMac Bank, F.S.B., 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Servicing, or such other address as may be hereafter furnished to
the
Depositor and the Trustee by the Servicer;
(iii) in
the
case of the Trustee or the Supplemental Interest Trust Trustee, to the Corporate
Trust Office, Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration IN060A, Series
INDS 2006-A, or such other address as the Trustee may hereafter furnish to
the
Depositor and Servicer;
(iv) in
the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency; and
(v) in
the
case of the Swap Provider, Bear Xxxxxxx Financial Products, Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal, or such other address as
the
Swap Provider may hereafter furnish to the Depositor and the
Trustee.
Notices
to Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate
Register.
Section
10.06 Severability
of Provisions.
If
any
one or more of the provisions of this Agreement shall be for any reason
whatsoever held invalid, then those provisions shall be deemed severable from
the remaining provisions of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of
the
Certificates or the rights of the Holders thereof.
Section
10.07 Assignment.
Notwithstanding
anything to the contrary contained herein, except as provided in Section 6.02,
this Agreement may not be assigned by the 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, 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, or
otherwise affect the rights and obligations of the parties hereto or any of
them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything in this Agreement
or
the Certificates be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be liable to any third party because of any action taken
by
the parties to this Agreement pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit, or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for sixty (60) days after its receipt of such
notice, request, and offer of indemnity shall have neglected or refused to
institute any such action, suit, or proceeding. Each Certificateholder expressly
covenants with every other Certificateholder and the Trustee that no one or
more
Holders of Certificates shall have any right in any manner whatever by virtue
or
by availing itself or themselves of any provisions of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of the Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Agreement, except in the manner herein
provided and for the common benefit of all Certificateholders. For
the
protection and enforcement of this Section 10.08, each Certificateholder and
the
Trustee shall be entitled to any relief that can be given either at law or
in
equity.
Section
10.09 Inspection
and Audit Rights.
The
Servicer agrees that on reasonable prior notice, it will permit any
representative of the Depositor or the Trustee during such Person’s normal
business hours, to examine all the books of account, records, reports and other
papers of such Person relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss
its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the 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
Servicer.
Section
10.10 Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
Section
10.11 Official
Record.
The
Seller agrees that this Agreement is and shall remain at all times before the
time at which this Agreement terminates an official record of the Seller as
referred to in Section 13(e) of the Federal Deposit Insurance Act.
Section
10.12 Protection
of Assets.
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the Trust is not
authorized and has no power to:
(1)
borrow money or issue debt;
(2)
merge
with another entity, reorganize, liquidate or sell assets; or
(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 engage in
any
activity or knowingly hold any property that would disqualify the Trust Fund
from being a qualifying special purpose entity under generally accepted
accounting principles.
Section
10.14 Rights
of the Swap Provider.
The
Swap
Provider shall be deemed a third-party beneficiary of this Agreement to the
same
extent as if it were a party hereto and shall have the right to enforce its
rights under this Agreement.
In
Witness Whereof, the Depositor, the Trustee, and the Seller and Servicer have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
INDYMAC
MBS, INC.,
as
Depositor
|
||||||||||||||
By:
|
/s/
Xxxx Xxxxxxxx
|
|||||||||||||
Name:
|
Xxxx
Xxxxxxxx
|
|||||||||||||
Title:
|
Senior
Vice President
|
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as
Trustee and Supplemental Interest Trust Trustee
|
||||||||||||||
By:
|
/s/
Xxxxxxxx Xxxxxxxxxxx
|
|||||||||||||
Name:
|
Xxxxxxxx
Xxxxxxxxxxx
|
|||||||||||||
Title:
|
Associate
|
By:
|
/s/
Xxxxxx Xxxxx
|
|||||||
Name:
|
Xxxxxx
Xxxxx
|
|||||||
Title:
|
Associate
|
INDYMAC
BANK, F.S.B.,
as
Seller and Servicer
|
||||||||||||||
By:
|
/s/
Xxxx Xxxxxxxx
|
|||||||||||||
Name:
|
Xxxx
Xxxxxxxx
|
|||||||||||||
Title:
|
Senior
Vice President
|
On
the
___th day of May, 2006 before me, a notary public in and for said State,
personally appeared _______________ known to me to be a ______________ of
IndyMac MBS Inc., a Delaware corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary
Public
|
)
|
||
)
|
ss.:
|
|
COUNTY
OF
|
)
|
On
the
___th day of May, 2006 before me, a notary public in and for said State,
personally appeared _______________ known to me to be a _______________ of
IndyMac Bank, F.S.B. that executed the within instrument, and also known to
me
to be the person who executed it on behalf of said corporation, and acknowledged
to me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary
Public
|
)
|
||
)
|
ss.:
|
|
COUNTY
OF NEW YORK
|
)
|
On
the
___th day of May, 2006 before me, a notary public in and for said State,
personally appeared ____________________, known to me to be an
____________________of Deutsche Bank National Trust Company, a national banking
association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said association, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary
Public
|
Schedule
I
Mortgage
Loan Schedule
[AVAILABLE
UPON REQUEST]
Schedule
II
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A
Representations
and Warranties of the Seller/Servicer
Indy
Mac
Bank, F.S.B. (“IndyMac”)
hereby
makes the representations and warranties in this Schedule II to the Depositor
and the Trustee as of the Closing Date. Capitalized terms used but not otherwise
defined in this Schedule II shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the “Pooling
and Servicing Agreement”)
relating to the above-referenced Series, among IndyMac, as Seller and Servicer,
IndyMac MBS, Inc., as Depositor, and Deutsche Bank National Trust Company,
as
Trustee and Supplemental Interest Trust Trustee.
(a) 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.
(b) 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
each of 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.
(c) 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 of the Pooling and Servicing Agreement 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, (B)
materially conflict with, result in a material breach, violation or acceleration
of, or result in a material default under, any other material agreement or
instrument to which IndyMac is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation applicable
to IndyMac of any court, regulatory body, administrative agency or governmental
body having jurisdiction over IndyMac (including the OTS, the FDIC 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 FDIC 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.
(d) 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.
(e) 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.
(f) 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.
Schedule
III
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A
Representations
and Warranties as to the Mortgage Loans
IndyMac
Bank, F.S.B. (“IndyMac”)
hereby
makes the representations and warranties in this Schedule III to the Depositor
and the Trustee, as of the Closing Date or if so specified herein, as of the
applicable Cut-off Date or date of origination of the Mortgage Loan (as
applicable). Capitalized terms used but not otherwise defined in this Schedule
III shall have the meanings ascribed thereto in the Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”)
relating to the above-referenced Series, among IndyMac, as Seller and Servicer,
IndyMac MBS, Inc., as Depositor, and Deutsche Bank National Trust Company,
as
Trustee and Supplemental Interest Trust Trustee.
(i) The
information on Schedule I to the Pooling and Servicing Agreement with respect
to
each Mortgage Loan is true and correct in all material respects as of the
Closing Date.
(ii) As
of the
Closing Date, all regularly scheduled monthly payments due with respect to
each
Mortgage Loan up to and including the Due Date before the applicable Cut-off
Date have been made; and as of the applicable Cut-off Date, no Mortgage Loan
had
a regularly scheduled monthly payment that was 30 or more days Delinquent during
the twelve months before the applicable Cut-off Date.
(iii) With
respect to any Mortgage 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 that do not materially interfere with
the
benefits of the security intended to be provided by such Mortgage.
(iv) Immediately
before the assignment of the Mortgage Loans to the Depositor, the Seller had
good title to, and was the sole owner of, each Mortgage Loan free and clear
of
any pledge, lien, encumbrance or security interest and had full right and
authority, subject to no interest or participation of, or agreement with, any
other party, to sell and assign the same pursuant to the Pooling and Servicing
Agreement.
(v) As
of the
date of origination of each Mortgage Loan, there was no delinquent tax or
assessment lien against the related Mortgaged Property.
(vi) There
is
no valid offset, defense or counterclaim to any Mortgage Note or Mortgage,
including the obligation of the Mortgagor to pay the unpaid principal of or
interest on such Mortgage Note.
(vii) There
are
no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property that are or may be a lien before, or equal with, the lien
of
such Mortgage, except those that are insured against by the title insurance
policy referred to in item (11) below.
(viii) No
Mortgaged Property has been materially damaged by water, fire, earthquake,
windstorm, flood, tornado or similar casualty (excluding casualty from the
presence of hazardous wastes or hazardous substances, as to which the Seller
makes no representation) so as to affect adversely the value of the related
Mortgaged Property as security for the Mortgage Loan.
(ix) Each
Mortgage Loan and prepayment penalty associated with the Mortgage Loan at
origination complied in all material respects with applicable federal, state
and
local laws, including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, Home Ownership and Equity Protection Act of 1994,
applicable predatory and abusive lending and disclosure laws, or any
noncompliance does not have a material adverse effect on the value of the
related Mortgage Loan.
(x) As
of the
Closing Date, the Seller has not modified the Mortgage in any material respect
(except that a Mortgage Loan may have been modified by a written instrument
that
has been recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and that has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in part; released
the related Mortgaged Property in whole or in part from the lien of such
Mortgage; or executed any instrument of release, cancellation, modification
or
satisfaction with respect thereto.
(xi) 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 or Subsequent Cut-off Date Principal Balance,
as
applicable, of each Mortgage Loan or a commitment (binder) to issue the same
was
effective on the date of the origination of each Mortgage Loan, each such policy
is valid and remains in full force and effect.
(xii) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Exchange Act) by an entity that satisfied at the time of origination the
requirements of Section 3(a)(41) of the Exchange Act.
(xiii) To
the
best of the Seller’s knowledge, all of the improvements that were included for
the purpose of determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not have a
material effect on the value of the Mortgaged Property.
(xiv) To
the
best of the Seller’s knowledge, as of the date of origination of each Mortgage
Loan, no improvement located on or being part of the Mortgaged Property is
in
violation of any applicable zoning law or regulation unless such violation
would
not have a material adverse effect on the value of the related Mortgaged
Property. To the best of the Seller’s knowledge, all inspections, licenses and
certificates required to be made or issued with respect to all occupied portions
of the Mortgaged Property and, with respect to the use and occupancy of the
same, including certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities, unless the lack
thereof would not have a material adverse effect on the value of the Mortgaged
Property.
(xv) 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.
(xvi) The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder.
(xvii) The
related Mortgage contains customary and enforceable provisions that render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(xviii) 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.
(xix) As
of the
applicable Cut-off Date, the improvements upon each Mortgaged Property are
covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage and coverage
for
such other hazards as are customarily required by institutional single family
mortgage lenders in the area where the Mortgaged Property is located, and the
Seller has received no notice that any premiums due and payable thereon have
not
been paid; the Mortgage obligates the Mortgagor thereunder to maintain all
such
insurance including flood insurance at the Mortgagor’s cost and expense.
Anything to the contrary in this item (19) notwithstanding, no breach of this
item (19) shall be deemed to give rise to any obligation of the Seller to
repurchase or substitute for such affected Mortgage Loan or Loans so long as
the
Servicer maintains a blanket policy pursuant to the second paragraph of Section
3.10(a) of the Pooling and Servicing Agreement.
(xx) 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.
(xxi) To
the
best of the Seller’s knowledge, there is no proceeding pending or threatened for
the total or partial condemnation of any Mortgaged Property, nor is such a
proceeding currently occurring.
(xxii) To
the
best of the Seller’s knowledge, there is no material event that, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a material non-monetary default, breach, violation or event
of
acceleration under the Mortgage or the related Mortgage Note; and the Seller
has
not waived any material non-monetary default, breach, violation or event of
acceleration.
(xxiii) Each
Mortgage File contains an Appraisal Form 1004 of the related Mortgaged
Property.
(xxiv) Any
leasehold estate securing a Mortgage Loan has a stated term at least as long
as
the term of the related Mortgage Loan.
(xxv) Each
Mortgage Loan was selected from among the outstanding one- to four-family
mortgage loans in the Seller’s mortgage portfolio at the Closing Date as to
which the representations and warranties made with respect to the Mortgage
Loans
in this Schedule III can be made. No such selection was made in a manner
intended to adversely affect the interests of the
Certificateholders.
(xxvi) None
of
the Mortgage Loans are cooperative loans.
(xxvii) [Reserved.]
(xxviii) [Reserved.]
(xxix) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such terms
are defined in the then-current version of Standard & Poor's LEVELS®
Glossary, which is now Version 5.6(b) 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.
(xxx) No
Mortgage Loan is a “High-Cost Home Loan” as defined in any of the following
statutes: the Georgia Fair Lending Act, as amended (the “Georgia Act”), the New
York Banking Law 6-1, the Arkansas Home Loan Protection Act effective July
16,
2003 (Act 1340 of 2003), the Kentucky high-cost home loan statute effective
June
24, 2003 (Ky. Rev. Stat. Section 360.100), the New Jersey Home Ownership Act
effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico
Home
Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx §§ 58-21A-1 et
seq.). No Mortgage Loan 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.).
(xxxi) 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 abusive lending laws.
(xxxii) 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.
(xxxiii) Each
Mortgage Loan has been underwritten and serviced substantially in accordance
with the Seller’s guidelines, subject to such variances as the Seller has
approved.
(xxxiv)
No
proceeds from any Mortgage Loan underlying the Certificates were used to finance
single-premium credit insurance policies.
(xxxv) No
Mortgage Loan is subject to the requirements of the Home Ownership and Equity
Protection Act of 1994 and no mortgage loan is in violation of any comparable
state law.
(xxxvi) [Reserved].
(xxxvii) The
Servicer has fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on the credit files for the related Mortgagor for
each Mortgage Loan to Equifax, Experian and Trans Union Credit Information
Company on a monthly basis.
(xxxviii) With
respect to any mortgage loan underlying the Security that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (a)
prior to the mortgage loan’s origination, the borrower agreed to such premium in
exchange for a monetary benefit, including but not limited to a rate or fee
reduction; (b) 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; (c) the prepayment premium is adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) no subprime loan
originated on or after October 1, 2002 underlying the Security will impose
a
prepayment premium for a term in excess of three years and any loans originated
prior to such date, and any non-subprime loans, will not impose prepayment
penalties in excess of five years; in each case unless the loan was modified
to
reduce the prepayment period to no more than three years from the date of the
note and the borrower was notified in writing of such reduction in prepayment
period; and (e) notwithstanding any state or federal law to the contrary, the
servicer shall not impose such prepayment premium in any instance when the
mortgage loan is accelerated or paid off in connection with the workout of
a
delinquent mortgage or due to the borrower’s default.
(xxxix) With
respect to each mortgage loan originated on or after August 1, 2004 and
underlying the Certificates, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagors to submit to arbitration to resolve any
dispute arising out of or relating in any way to the related mortgage loan
transaction.
(xl) With
respect to each mortgage loan underlying the Security, no borrower obtained
a
prepaid single-premium credit-life, credit disability, credit unemployment
or
credit property insurance policy in connection with the origination of the
mortgage loan.
(xli) With
respect to each
mortgage loan underlying
the Security, the mortgage loan’s originator offered the borrower mortgage loan
products offered by such mortgage loan’s originator, or any affiliate of such
mortgage loan’s originator, for which the borrower qualified.
(xlii) The
methodology used in underwriting the extension of credit for each mortgage
loan
employs objective mathematical principles which 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.
(xliii) No
borrower under a mortgage loan was charged “points and fees” in an amount
greater than (a) $1,000 or (b) 5% of the principal amount of such mortgage
loan,
whichever is greater. For purposes of this representation, “points and fees” (x)
include origination, underwriting, broker and finder’s fees and charges that the
lender imposed as a condition of making the mortgage loan, whether they are
paid
to the lender or a third party; and (y) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent of the loan
amount.
(xliv) All
points, fees and charges (including finance charges), and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each mortgage loan, have been disclosed in writing
to the borrower in accordance with applicable state and federal law and
regulation.
(xlv) To
the
best of the Seller’s knowledge, there was no fraud involved in the origination
of any Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or
any
other party involved in the origination of the Mortgage Loan.
EXHIBIT
A-1
FORM
OF
CLASS A CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING THIS
CERTIFICATE DIRECTLY OR INDIRECTLY BY, ON BEHALF OF, OR WITH PLAN ASSETS OF,
AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO TITLE
I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, SHALL BE DEEMED
TO MAKE THE REPRESENTATIONS IN SECTION 5.02(b) OF THE POOLING AND SERVICING
AGREEMENT.
Certificate
No.
|
:
|
[ ]
|
Cut-off
Date
|
:
|
May
1, 2006
|
First
Distribution Date
|
:
|
June
26, 2006
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$[__]
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$[__]
|
CUSIP
|
:
|
[_______]
|
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS
2006-A
Class
[
]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as stated herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that [___________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac MBS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (in such capacity, the “Trustee”) and supplemental
interest trust 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.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to have made the representations in Section 5.02(b)
of the Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2006
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
REVERSE
OF CERTIFICATE
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc., Home Equity Mortgage Loan Asset-Backed Certificates, of
the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five (5) 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 location specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period is less than 10% of the sum of the Cut-off Date Principal Balance of
the
Mortgage Loans, the Servicer will have the option to purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
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.
|
STATE
OF_____________
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
the
___ th day of __________, 200_ before me, a notary public in and for said State,
personally appeared _______________________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing
instrument.
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-2
FORM
OF
SUBORDINATE CERTIFICATES
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NO
PERSON
MAY ACQUIRE THIS CERTIFICATE DIRECTLY OR INDIRECTLY BY, ON BEHALF OF, OR WITH
PLAN ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT
IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, EXCEPT IN ACCORDANCE WITH SECTION 5.02(b) OF THE POOLING AND SERVICING
AGREEMENT.
Certificate
No.
|
:
|
[ ]
|
Cut-off
Date
|
:
|
May
1, 2006
|
First
Distribution Date
|
:
|
June
26, 2006
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$[__]
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$[__]
|
CUSIP
|
:
|
[_______]
|
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2006-A
Class
[
]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as stated herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that [___________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac MBS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (in such capacity, the “Trustee”) and supplemental
interest trust 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 this Certificate shall be made to any person using Plan Assets
except as provided under Section 5.02(b) of the Agreement.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2006
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
REVERSE
OF CERTIFICATE
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc., Home Equity Mortgage Loan Asset-Backed Certificates, of
the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five (5) 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 location specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period is less than 10% of the sum of the Cut-off Date Principal Balance of
the
Mortgage Loans, the Servicer will have the option to purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
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.
|
STATE
OF_____________
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
the
___ th day of __________, 200_ before me, a notary public in and for said State,
personally appeared _______________________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing
instrument.
Notary
Public
|
[Notarial
Seal]
EXHIBIT
B
FORM
OF
CLASS P CERTIFICATE
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
SUBJECT
TO THE PROVISIONS OF SECTION 5.02(b) OF THE AGREEMENT, NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO
THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
AND IS NOT INVESTING ON BEHALF OF OR WITH ASSETS OF SUCH A PLAN, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A
REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO
HEREIN, OR AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN.
Certificate
No.
|
:
|
[ ]
|
Cut-off
Date
|
:
|
May
1, 2006
|
First
Distribution Date
|
:
|
June
26, 2006
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
[__]%
|
CUSIP
|
:
|
[_______]
|
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2006-A
Class
P
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class payable solely from Prepayment Charges.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [_________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac MBS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (in such capacity, the “Trustee”) and supplemental
interest trust trustee. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound. This Certificate
represents an interest in the Trust, but does not represent an interest in
any
REMIC.
This
Certificate does not have a Certificate Balance or Pass-Through Rate and will
be
entitled to distributions only to the extent set forth in the Agreement and
solely payable from Prepayment Charges. In addition, any distribution of the
proceeds of any remaining assets of the Trust will be made only upon presentment
and surrender of this Certificate at the 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,
subject to the provisions in Section 5.02(b) of the Agreement, 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.
Subject
to the provisions in Section 5.02(b) of the Agreement, 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 (x) such transferee is not an employee benefit plan subject to
Section 406 of ERISA or Section 4975 of the Code, nor a person acting on behalf
of any such plan, which representation letter shall not be an expense of the
Trustee or (y) if the Certificate has been the subject of an ERISA-Qualifying
Underwriting, a representation that the transferee is an insurance company
which
is acquiring such Certificate with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate satisfy the requirements for exemptive relief under
PTCE 95-60, or (ii) in the case of a Certificate presented for registration
in
the name of an employee benefit plan subject to ERISA, or a plan or arrangement
subject to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan’s or arrangement’s assets, an
Opinion of Counsel satisfactory to the Trustee and the Servicer, which Opinion
of Counsel shall not be an expense of the Trustee, the Servicer or the Trust
Fund, addressed to the Trustee, 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
Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2006
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
REVERSE
OF CERTIFICATE
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc., Home Equity Mortgage Loan Asset-Backed Certificates, of
the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five (5) 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 location specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period is less than 10% of the sum of the Cut-off Date Principal Balance of
the
Mortgage Loans, the Servicer will have the option to purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
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.
|
STATE
OF_____________
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
the
___ th day of __________, 200_ before me, a notary public in and for said State,
personally appeared _______________________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing
instrument.
Notary
Public
|
[Notarial
Seal]
EXHIBIT
C
FORM
OF
RESIDUAL 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.
SUBJECT
TO THE PROVISIONS OF SECTION 5.02(b) OF THE AGREEMENT, NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO
THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), 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. IN
THE
EVENT THAT SUCH REPRESENTATION IS VIOLATED, OR ANY ATTEMPT TO TRANSFER TO A
PLAN
OR ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA OR A PLAN SUBJECT TO SECTION
4975
OF THE CODE, OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR
USING THE ASSETS OF ANY SUCH PLAN OR ARRANGEMENT, WITHOUT SUCH OPINION OF
COUNSEL, SUCH ATTEMPTED TRANSFER OR ACQUISITION SHALL BE VOID AND OF NO
EFFECT.
Certificate
No.
|
:
|
[ ]
|
Cut-off
Date
|
:
|
May
1, 2006
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$[__]
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$[__]
|
CUSIP
|
:
|
[_______]
|
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2006-A
Class
[R]
[R-X]
evidencing
the distributions allocable to the Class [R] [R-X] Certificates with respect
to
a Trust Fund consisting primarily of a pool of 15-year fixed rate, closed-end,
sub-prime mortgage loans (the “Mortgage Loans”) secured by second liens on
one-to four-family residential properties
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the 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
of
the Denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
IndyMac MBS, Inc., as depositor (the “Depositor”), IndyMac Bank, F.S.B., as
seller (in such capacity, the “Seller”) and as servicer (in such capacity, the
“Servicer”), and Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and supplemental interest trust trustee. To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class [R] [R-X] Certificate
at
the office or agency maintained by the Trustee.
Subject
to the provisions in Section 5.02(b) of the Agreement, no transfer of a Class
[R] [R-X] Certificate shall be made unless the Trustee shall have received
either (i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan or arrangement
subject to Section 406 of ERISA, or a plan or arrangement 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 such transfer, which
representation letter shall not be an expense of the Trustee, the Servicer
or
the Trust Fund or (ii) an Opinion of Counsel satisfactory to the Trustee and
the
Servicer to the effect that the purchase or holding of such Class [R] [R-X]
Certificate will not result in a non-exempt prohibited transaction under ERISA
or Section 4975 of the Code and will not subject the Trustee or the Servicer
to
any obligation in addition to those expressly undertaken in the Agreement or
to
any liability, which Opinion of Counsel shall not be an expense of the Trustee,
the Servicer or the Trust Fund. In the event that such representation is
violated, or any attempt to transfer to a plan or arrangement subject to Section
406 of ERISA or a plan subject to Section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement, without such Opinion of Counsel, such attempted transfer or
acquisition shall be void and of no effect.
Each
Holder of this Class [R] [R-X] Certificate shall be deemed by the acceptance
or
acquisition an Ownership Interest in this Class [R] [R-X] Certificate to have
agreed to be bound by the following provisions, and the rights of each Person
acquiring any Ownership Interest in this Class [R] [R-X] Certificate are
expressly subject to the following provisions: (i) each Person holding or
acquiring any Ownership Interest in this Class [R] [R-X] Certificate shall
be a
Permitted Transferee and shall promptly notify the Trustee of any change or
impending change in its status as a Permitted Transferee, (ii) no Ownership
Interest in this Class [R] [R-X] Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of this Certificate unless, in addition to the certificates required to be
delivered to the Trustee under Section 5.02(b) of the Agreement, the Trustee
shall have been furnished with a Transfer Affidavit of the initial owner or
the
proposed transferee in the form attached as Exhibit I to the Agreement (subject
to the limitations with respect thereto as set forth in Section 5.02(b) of
the
Agreement), (iii) each Person holding or acquiring any Ownership Interest in
this Class [R] [R-X] Certificate shall agree (A) to obtain a Transfer Affidavit
from any other Person to whom such Person attempts to Transfer its Ownership
Interest this Class [R] [R-X] Certificate (subject to the limitations with
respect thereto as set forth in Section 5.02(b) of the Agreement), (B) to obtain
a Transfer Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of this Class [R] [R-X]
Certificate (subject to the limitations with respect thereto as set forth in
Section 5.02(b) of the Agreement) and (C) not to Transfer the Ownership Interest
in this Class [R] [R-X] Certificate or to cause the Transfer of the Ownership
Interest in this Class [R] [R-X] Certificate to any other Person if it has
actual knowledge that such Person is not a Permitted Transferee and (iv) any
attempted or purported Transfer of the Ownership Interest in this Class [R]
[R-X] Certificate in violation of the provisions herein shall be absolutely
null
and void and shall vest no rights in the purported Transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2006
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
REVERSE
OF CERTIFICATE
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc., Home Equity Mortgage Loan Asset-Backed Certificates, of
the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five (5) 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 location specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period is less than 10% of the sum of the Cut-off Date Principal Balance of
the
Mortgage Loans, the Servicer will have the option to purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
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.
|
STATE
OF_____________
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
the
___ th day of __________, 200_ before me, a notary public in and for said State,
personally appeared _______________________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing
instrument.
Notary
Public
|
[Notarial
Seal]
EXHIBIT
D
FORM
OF
CLASS C 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”).
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.
SUBJECT
TO THE PROVISIONS IN SECTION 5.02(b) OF THE AGREEMENT, NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO
THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), 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.
Certificate
No.
|
:
|
[ ]
|
Cut-off
Date
|
:
|
May
1, 2006
|
First
Distribution Date
|
:
|
June
26, 2006
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
[__]%
|
CUSIP
|
:
|
[________]
|
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2006-A
Class
C
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [______] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac MBS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (in such capacity, the “Trustee”) and supplemental
interest trust trustee. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
This
Certificate does not have a Certificate Balance or Pass-Through Rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
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,
subject to the provisions in Section 5.02(b) of the Agreement, 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.
Subject
to the provisions in Section 5.02(b) of the Agreement, 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 or arrangement subject to Section 406 of ERISA or Section 4975 of the
Code,
or a person acting on behalf of any such plan or investing plan assets of any
such plan, which representation letter shall not be an expense of the Trustee,
or (ii) in the case of a Certificate presented for registration in the name
of
an employee benefit plan subject to ERISA, or a plan or arrangement subject
to
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan or arrangement or using such plan’s or arrangement’s assets, an
Opinion of Counsel satisfactory to the Trustee and the Servicer, which Opinion
of Counsel shall not be an expense of the Trustee, the Servicer or the Trust
Fund, addressed to the Trustee, 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
Servicer to any obligation in addition to those expressly undertaken in this
Agreement or to any liability.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2006
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
REVERSE
OF CERTIFICATE
INDYMAC
MBS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac MBS, Inc., Home Equity Mortgage Loan Asset-Backed Certificates, of
the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five (5) 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 location specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period is less than 10% of the sum of the Cut-off Date Principal Balance of
the
Mortgage Loans, the Servicer will have the option to purchase, in whole, from
the Trust Fund all remaining Mortgage Loans and all property acquired in respect
of the Mortgage Loans at a purchase price determined as provided in the
Agreement. The obligations and responsibilities created by the Agreement will
terminate as provided in Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
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.
|
STATE
OF_____________
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
On
the
___ th day of __________, 200_ before me, a notary public in and for said State,
personally appeared _______________________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing
instrument.
Notary
Public
|
[Notarial
Seal]
EXHIBIT
E
[RESERVED]
EXHIBIT
F
[RESERVED]
EXHIBIT
G-1
FORM
OF
INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re:
|
Pooling
and Servicing Agreement among IndyMac MBS, Inc., as Depositor, IndyMac
Bank, F.S.B., as Seller and Servicer, and Deutsche Bank National
Trust
Company, as Trustee and Supplemental Interest Trust Trustee, Home
Equity
Mortgage Loan Asset-Backed Trust, Series INDS 2006-A, Home Equity
Mortgage
Loan Asset-Backed Certificates, Series INDS 2006-A
|
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 related
Mortgaged Property is located in the Commonwealth of Puerto Rico.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such 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 have the respective meanings assigned to them
in
the Pooling and Servicing Agreement.
Deutsche
Bank National Trust Company
as
Trustee
|
||||||||||||||
By:
|
||||||||||||||
Name:
|
||||||||||||||
Title:
|
EXHIBIT
G-2
FORM
OF
DELAYED DELIVERY CERTIFICATION
[date]
[Depositor]
[Servicer]
Re:
|
Pooling
and Servicing Agreement among IndyMac MBS, Inc., as Depositor,
IndyMac
Bank, F.S.B., as Seller and Servicer, and Deutsche Bank National
Trust
Company, as Trustee and Supplemental Interest Trust Trustee, Home
Equity
Mortgage Loan Asset-Backed Trust, Series INDS 2006-A, Home Equity
Mortgage
Loan Asset-Backed Certificates, Series INDS
2006-A
|
Gentlemen:
[Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto, delivered by the
undersigned, as Trustee, on the Closing Date in accordance with Section 2.02
of
the above-captioned Pooling and Servicing Agreement.] The undersigned hereby
certifies that as to each Delayed Delivery Mortgage Loan listed on the Schedule
A attached hereto (other than any Mortgage Loan paid in full or listed on
Schedule B attached hereto) it has received:
(i) (A)
the
original Mortgage Note, endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of ______________________________ without
recourse,” with all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing the Mortgage Note (each
such endorsement being sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note) and (B)
with respect to any Lost Mortgage Note, a lost note affidavit from the Seller
stating that the original Mortgage Note was lost or destroyed, together with
a
copy of such Mortgage Note;
(ii) a
duly
executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments), together with, except as provided below, all interim
recorded assignments of such mortgage (each such 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,
however,
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.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to the Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i)
the validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in each Mortgage File of any of the Mortgages 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 have the respective meanings assigned to them
in
the above-captioned Pooling and Servicing Agreement.
Deutsche
Bank National Trust Company
as
Trustee
|
||||||||||||||
By:
|
||||||||||||||
Name:
|
||||||||||||||
Title:
|
EXHIBIT
H
FORM
OF
FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re:
|
Pooling
and Servicing Agreement among IndyMac MBS, Inc., as Depositor,
IndyMac
Bank, F.S.B., as Seller and Servicer, and Deutsche Bank National
Trust
Company, as Trustee and Supplemental Interest Trust Trustee,
Home Equity
Mortgage Loan Asset-Backed Trust, Series INDS 2006-A, Home Equity
Mortgage
Loan Asset-Backed Certificates, Series INDS
2006-A
|
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)(i)
of
the Pooling and Servicing Agreement, with all intervening endorsements showing
a
complete chain of endorsement from the originator to the Seller.
(ii) The
original recorded Mortgage.
(iii) A
duly
executed assignment of the Mortgage in the form provided in Section 2.01(c)(iii)
of the Pooling and Servicing Agreement; provided,
however, that
it
has received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the related Mortgage
has not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The
original or duplicate original recorded assignment or assignments of the
Mortgage showing a complete chain of assignment from the originator to the
Seller.
(v) The
original or duplicate original lender’s title policy and all riders thereto or,
any one of an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan and
(b)
the information set forth in items (i), (ii), (iii), (iv), (vi) and (xi)(a)
of
the definition of the “Mortgage Loan Schedule” in Section 1.01 of the Pooling
and Servicing Agreement accurately reflects information set forth in the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule; or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is
sufficient to transfer all interest of the party so endorsing, as Noteholder
or
assignee thereof, in that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
Deutsche
Bank National Trust Company
as
Trustee
|
||||||||||||||
By:
|
||||||||||||||
Name:
|
||||||||||||||
Title:
|
EXHIBIT
I
Or
IndyMac
MBS, Inc.,
Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A
STATE
OF_____________
|
)
|
|
)
|
ss.:
|
|
COUNTY
OF___________
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ____________________________, the proposed
Transferee of an Ownership Interest in a Class R Certificate or Class R-X
Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement (the “Agreement”),
relating to the above-referenced Series, by and among IndyMac MBS, Inc., as
depositor (the “Depositor”),
IndyMac Bank, F.S.B., as seller and servicer and Deutsche Bank National Trust
Company, as trustee and supplemental interest trust trustee. Capitalized terms
used, but not defined herein or in Annex 1, shall have the meanings ascribed
to
such terms in the Agreement. The Transferee has authorized the undersigned
to
make this affidavit on behalf of the Transferee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account.
3. The
Transferee has been advised of, and understands that: (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the Transferee
furnishes to such Person an affidavit that such Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not have actual
knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
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 the Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed Section 5.02(c) of the Agreement (attached hereto as
Annex 2 and incorporated herein by reference) and understands the legal
consequences of the acquisition of an Ownership Interest in the Certificate
including, without limitation, the restrictions on subsequent Transfers and
the
provisions regarding voiding the Transfer and mandatory sales. The Transferee
expressly agrees to be bound by and to abide by the provisions of Section
5.02(c) of the Agreement and the restrictions noted on the face of the
Certificate. The Transferee understands and agrees that any breach of any of
the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit J to the Agreement
(a
“Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee’s taxpayer identification number is ________________.
8. The
Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
9. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of Treasury regulations promulgated pursuant to the
Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer was to impede the assessment
or
collection of tax. 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.
10. Transferee
has historically paid the Transferee’s debts as they become due, and Transferee
intends, and believes that the Transferee will be able, to continue to pay
Transferee’s debts as such debts become due in the future. Transferee has a
valid business purpose for purchasing the Residuals.
11. Transferee
is not a foreign permanent establishment or fixed base (within the meaning
of an
applicable income tax treaty) (a “Foreign
Base”)
of a
U.S. taxpayer. In addition, the Transferee will not (a) transfer the Class
R
Certificates, directly or indirectly, to a Foreign Base, and (b) cause income
from the Class R Certificates to be attributable to a Foreign Base of the
Transferee or another U.S. taxpayer.
12. 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 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 12(a); and
(ii) the Transferee is an Eligible Corporation 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
12(a). For the purpose of this affidavit, 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, and 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;
or
(b)(i)
The
Transferee is a United States Person; and (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 the REMIC generates losses.
For
purposes of calculating the aforementioned present values: (i) 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 Section 55 of the Code 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 Section 55(b)(1)(B) of the Code (provided,
that 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
Section 55 of the Code in the preceding two years) and will compute its taxable
income in the current taxable year using the alternative minimum tax rate);
and
(ii) the Transferee uses a discount rate equal to the Federal short-term rate
prescribed by section 1274(d) of the Code for the month of the transfer and
the
compounding period used by the Transferee.
13. The
Transferee hereby represents to and for the benefit of the transferor that
the
Transferee intends to pay any tax associated with holding the Ownership Interest
as they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by its Ownership Interest.
14. 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 using plan assets of such a plan.
In
Witness Whereof,
the
Transferee has caused this instrument to be executed on its behalf, pursuant
to
authority of its Board of Directors, by its duly authorized officer and its
corporate seal to be hereunto affixed, duly attested, this ____ day of
__________________, 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__ |
Annex
1
to
Exhibit
I
Certain
Definitions
“Ownership
Interest”:
As to
any Certificate, any ownership interest in the Certificate, including any
interest in the Certificate as its Holder and any other interest in it, whether
direct or indirect, legal or beneficial.
“Permitted
Transferee”:
Any
Person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, International Organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in Code Section 521) that is exempt from tax imposed
by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in
Code
Section 860E(c)(1)) with respect to any Class R Certificate, (iv) rural electric
and telephone cooperatives described in Code Section 1381(a)(2)(c), (v) a Person
that is not a U.S. Person and (vi) any other Person so designated by the
Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Class R Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that certain Certificates are
Outstanding. The terms “United
States,”
“State,”
and
“International
Organization”
have
the meanings in Code Section 7701 or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof if all of its activities are subject to tax,
and,
with the exception of the FHLMC, a majority of its board of directors is not
selected by such governmental unit.
“Person”:
Any
individual, corporation, partnership, joint venture, bank, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“United
States Person” or “U.S. Person”:
(i) A
citizen or resident of the United States; (ii) a corporation (or entity treated
as a corporation for tax purposes) created or organized in the United States
or
under the laws of the United States or of any state thereof, including, for
this
purpose, the District of Columbia; (iii) a partnership (or entity treated as
a
partnership for tax purposes) organized in the United States or under the laws
of the United States or of any state thereof, including, for this purpose,
the
District of Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; (v) a trust, if a court within
the
United States is able to exercise primary supervision over the administration
of
the trust and one or more U.S. Persons have authority to control all substantial
decisions of the trust; or (vi) to the extent provided in Treasury regulations,
certain trusts in existence on August 20, 1996 that are treated as U.S. Persons
before that date and that elect to continue to be treated as U.S.
Persons.
Annex
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:
(a) 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.
(b) 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 (subject
to
the limitations with respect thereto as set forth in Section
5.02(b)).
(c) Subject
to the limitations set forth in Section 5.02(b), each Person holding or
acquiring any Ownership Interest in a Residual Certificate shall
agree:
(1) to
obtain
a Transfer Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate;
(2) 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
(3) 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.
(d) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of this Section 5.02(c) shall be absolutely null and
void and shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in violation of
this
Section 5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall not be liable to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time
it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(e) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate in this Section 5.02(c)
shall cease to apply (and the applicable portions of the legend on a Residual
Certificate may be deleted) with respect to Transfers occurring after delivery
to the Trustee of an Opinion of Counsel, which Opinion of Counsel shall not
be
an expense of the Trust Fund, the Trustee, the Seller or the Servicer, to the
effect that the elimination of such restrictions will not cause the Trust Fund
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or any other Person. The Opinion of Counsel shall be
accompanied by written notification from each Rating Agency that the removal
of
the restriction will not cause the Rating Agency to downgrade its ratings of
the
Certificates. Each Person holding or acquiring any Ownership Interest in a
Residual Certificate hereby consents to any amendment of this Agreement that,
based on an Opinion of Counsel furnished to the Trustee, is reasonably necessary
(a) to ensure that the record ownership of, or any beneficial interest in,
a
Residual Certificate is not transferred, directly or indirectly, to a Person
that is not a Permitted Transferee and (b) to provide for a means to compel
the
Transfer of a Residual Certificate that is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
Exhibit
J
Form
of
Transferor Certificate
__________,
20__
IndyMac
MBS, Inc.
000
Xxxxx
Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
: [___________]
Series
INDS 2006-A
Re:
|
IndyMac
MBS, Inc. Home Equity Loan Asset-Backed Trust, Series INDS 2006-A,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS
2006-A,
Class ___
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action that would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a Residual
Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very
truly yours,
|
|||||||||||||
Print
Name of Transferor
|
|||||||||||||
By:
|
||||||||
Authorized
Officer
|
||||||||
EXHIBIT
K
FORM
OF
INTEREST RATE SWAP AGREEMENT
BEAR
XXXXXXX
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
XXXXX
0000
XXX
XXXX, XXX XXXX 00000
000-000-0000
DATE:
|
May
22, 2006
|
TO:
|
Deutsche
Bank National Trust Company, not individually, but solely as Supplemental
Interest Trust Trustee on behalf of the Supplemental Interest Trust
with
respect to the Home Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A
|
ATTENTION:
|
Trust
Administration - INO6OA
|
TELEPHONE:
|
0-000-000-0000
|
FACSIMILE:
|
0-000-000-0000
|
FROM:
|
Derivatives
Documentation
|
TELEPHONE:
|
000-000-0000
|
FACSIMILE:
|
000-000-0000
|
SUBJECT:
|
Mortgage
Derivatives Confirmation and Agreement
|
REFERENCE
NUMBER:
|
FXINDS06A1
|
The
purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the "Transaction") between Bear Xxxxxxx Financial Products Inc. ("BSFP")
and
Deutsche Bank National Trust Company., not individually, but solely as
Supplemental Interest Trust Trustee on behalf of the Supplemental Interest
Trust
with respect to the Home Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A ("Counterparty"). This Agreement, which evidences a complete
and
binding agreement between you and us to enter into the Transaction on the
terms
set forth below, constitutes a "Confirmation" as referred to in the "ISDA
Form
Master Agreement" (as defined below), as well as a “Schedule” as referred to in
the ISDA Form Master Agreement.
1.
This Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement
in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) form (the "ISDA Form Master Agreement") but,
rather, an ISDA Form Master Agreement shall be deemed to have been executed
by
you and us relating to the Reference Loans on the date we entered into the
Transaction. Terms capitalized but not defined herein except
in the Definitions
shall have the respective meanings attributed to them in the Pooling and
Servicing Agreement, dated as of May 1, 2006, among IndyMac Bank, as seller
and
servicer, IndyMac MBS, Inc., as depositor and Deutsche Bank National Trust
Company as trustee and as Supplemental Interest Trust trustee (the “Pooling and
Servicing Agreement”). In the event of any inconsistency between the provisions
of this Agreement and the Definitions or the ISDA Form Master Agreement,
this
Agreement shall prevail for purposes of the Transaction. Each reference to
a
“Section” (unless specifically referencing the Pooling and Servicing Agreement)
or to a “Section” “of this Agreement” will be construed as a reference to a
Section of the ISDA Form Master Agreement.
2.
The terms of the particular Transaction to which this Confirmation relates
are
as follows:
Trade
Date:
|
May
16, 2006
|
Effective
Date:
|
May
22, 2006
|
Notional
Amount:
|
With
respect to the initial Calculation Period, USD 1,404,732 and with
respect
to any subsequent Calculation Period, the lesser
of:
|
(i)
(A) (1/250) multiplied by (B) the excess, if any, of (x) the outstanding
principal balance of the Reference Loans as of the beginning of the Remittance
Period which relates to the Distribution Date specified in the immediately
following clause (y) over (y) the outstanding principal balance of the Class
B
Certificates immediately preceding the Distribution Date which occurs on
or
about the related Floating Rate Payer Payment Date, and
(ii)
the Calculation Amount set forth for such Calculation Period in the Schedule
of
Calculation Periods attached hereto.
Reference
Loans:
|
The
Mortgage Loans (as defined in the Pooling and Servicing Agreement)
|
Termination
Date:
|
May
25, 2012, subject to adjustment in accordance with the Business
Day
Convention
|
Fixed
Amount:
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer
|
||
Period
End Dates:
|
The
25th
calendar day of each month during the Term of this Transaction,
commencing
June 25, 2006 and ending on the Termination Date, with No Adjustment;
provided that for purposes of determining the final Fixed Rate
Payer
Period End Date, the Termination Date will not be adjusted in accordance
with the Business Day Convention..
|
|
Fixed
Rate Payer
|
||
Payment
Date:
|
Early
Payment shall be applicable. For each Calculation Period, the Fixed
Rate
Payer Payment Date shall be the first Business Day prior to the
related
Fixed Rate Payer Period End Date.
|
|
Fixed
Rate:
|
5.5750%
|
|
Fixed
Amount:
|
To
be determined in accordance with the Following formula:
|
|
250
* Fixed Rate * Notional Amount * Fixed Rate Day Count
Fraction.
|
||
Fixed
Rate Day
|
||
Count
Fraction:
|
30/360
|
Floating
Amounts:
Floating
Rate Payer:
|
BSFP
|
||
Floating
Rate Payer
|
|||
Period
End Dates:
|
The
25th
of each month in each year from (and including) June 25, 2006 to (and
including) the Termination Date, subject to adjustment in accordance
with
the Business Day Convention.
|
||
Floating
Rate Payer
Payment
Date(s):
|
Early
Payment shall be applicable. For each Calculation Period, the Floating
Rate Payer Payment Date shall be the first Business Day prior to
the
related Floating Rate Payer Period End Date.
|
||
Floating
Rate Option:
|
USD-LIBOR-BBA
|
||
Floating
Amount:
|
To
be determined in accordance with the Following formula:
|
||
250
* Floating Rate Option * Notional Amount * Floating Rate Day Count
Fraction.
|
|||
Spread:
|
None
|
||
Designated
Maturity:
|
One
month
|
||
Floating
Rate Day
|
|||
Count
Fraction:
|
Actual/360
|
||
Reset
Dates:
|
The
first day of each Calculation Period.
|
||
Compounding:
|
Inapplicable
|
||
Business
Days:
|
New
York and Santa Xxx
|
||
Business
Day Convention:
|
Following
|
||
3.
|
Additional
Provisions:
|
1)
Each party hereto is hereby advised and acknowledges that the other
party
has engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the Transaction
being entered into on the terms and conditions set forth herein
and in the
Agreement relating to such Transaction, as applicable. This paragraph
(1)
shall be deemed repeated on the trade date of each
Transaction.
|
4.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
|
1) The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA Form Master
Agreement will apply to any Transaction.
2)
Termination
Provisions.
For purposes of the ISDA Form Master Agreement:
(a) "Specified
Entity" is not applicable to BSFP or Counterparty for any purpose.
(b) "Specified
Transaction" is not applicable to BSFP or Counterparty for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to BSFP or
Counterparty.
(c) The
"Cross Default" provisions of Section 5(a)(vi) will not apply to BSFP or
to
Counterparty.
(d) The
"Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply
to BSFP
or Counterparty.
(e)
The
“Bankruptcy” provisions of Section 5(a)(vii)(2) will be inapplicable to
Counterparty.
(f) The
"Automatic Early Termination" provision of Section 6(a) will not apply to
BSFP
or to Counterparty.
(g) Payments
on Early Termination. For the purpose of Section 6(e) of this
Agreement:
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
(h) "Termination
Currency" means United States Dollars.
(i) Tax
Event. The provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed ISDA
Form Master Agreement shall not apply to Counterparty and Counterparty shall
not
be required to pay any additional amounts referred to therein.
3)
Tax Representations.
(a)
Payer Representations. For the purpose of Section 3(e) of this Agreement,
each
of BSFP and the Counterparty will make the following
representations:
It
is not required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, of any Relevant Jurisdiction to
make
any deduction or withholding for or on account of any Tax from any payment
(other than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement)
to
be made by it to the other party under this Agreement. In making this
representation, it may rely on:
(i) the
accuracy of any representations made by the other party pursuant to Section
3(f)
of this Agreement;
(ii) the
satisfaction of the agreement contained in Section 4(a)(i) 4(a)(iii) of this
Agreement and the accuracy and effectiveness of any document provided by
the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement;
and
(iii)
the satisfaction of the agreement of the other party contained in Section
4(d)
of this Agreement, provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does not deliver
a
form or document under Section 4(a)(iii) by reason of material prejudice
to its
legal or commercial position.
(b)
Payee Representations. For the purpose of Section 3(f) of this Agreement,
each
of BSFP and the Counterparty make the following representations.
The
following representation will apply to BSFP:
BSFP
is a corporation organized under the laws of the State of Delaware and its
U.S.
taxpayer identification number is 00-0000000.
The
following representation will apply to the Counterparty:
Counterparty
represents that the beneficial owner of the payments made to it under the
Agreement is a “U.S. person” (as that term is used in Section 1.1441-4(a)(3)(ii)
of the United States Treasury Regulations) for U.S. federal income tax
purposes.
4)
Documents
to be Delivered.
For the purpose of Section 4(a):
(1) Tax
forms, documents, or certificates to be delivered are:
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
BSFP
and
the
Counterparty
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding
at a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
(2) Other
documents to be delivered are:
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
BSFP
and
the
Counterparty
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver this Agreement, any Confirmation , and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under this Agreement, such Confirmation and/or Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
BSFP
and
the
Counterparty
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
Counterparty
|
An
executed copy of the Pooling and Servicing Agreement.
|
Within
30 days after the date of this Agreement.
|
No
|
5)
Miscellaneous.
Miscellaneous
(a)
|
Address
for Notices: For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to BSFP:
Address:
|
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
|
|
Attention:
|
DPC
Manager - Suite 2700
|
|
Facsimile:
|
(000)
000-0000
|
with
a copy to:
Address:
|
Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
|
|
Attention:
|
Derivative
Operations - 7th Floor
|
|
Facsimile:
|
(000)
000-0000
|
(For
all purposes)
Address
for notices or communications to the Counterparty:
Address:
|
Deutsche
Bank National Trust Company
|
|
0000
X. Xx. Xxxxxx Xxxxx
|
||
Xxxxx
Xxx, XX 00000
|
||
Attention:
|
Trust
Administration - INO60A
|
|
Facsimile
No.:
|
0-000-000-0000
|
|
Telephone:
|
0-000-000-0000
|
(For
all purposes)
(b) Process
Agent. For the purpose of Section 13(c):
BSFP
appoints as its
Process
Agent: Not
Applicable
The
Counterparty appoints as its
Process
Agent: Not
Applicable
(c) Offices.
The provisions of Section 10(a) will not apply to this Agreement; neither
BSFP
nor the Counterparty have any Offices other than as set forth in the Notices
Section and BSFP agrees that, for purposes of Section 6(b) of this Agreement,
it
shall not in future have any Office other than one in the United
States.
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of this
Agreement:
|
BSFP
is not a Multibranch Party.
The
Counterparty is not a Multibranch
Party.
|
(e)
Calculation
Agent. The Calculation Agent is BSFP.
(f)
Credit
Support Document. Not applicable for either BSFP or the
Counterparty.
(g)
|
Credit
Support Provider.
|
BSFP: Not
Applicable
The
Counterparty: Not
Applicable
(h) Governing
Law. The
parties to this Agreement hereby agree that the law of the State of New York
shall govern their rights and duties in whole, without regard to the conflict
of
law provisions thereof other than New York General Obligations Law Sections
5-1401 and 5-1402.
(i)
Non-Petition. BSFP hereby irrevocably and unconditionally agrees that it
will
not institute against, or join any other person in instituting against or
cause
any other person to institute against the Counterparty, any bankruptcy,
reorganization, arrangement, insolvency, or similar proceeding under the
laws of
the United States, or any other jurisdiction for the non-payment of any amount
due hereunder or any other reason until the expiration of a period of one
year
plus ten days (or, if longer, the applicable preference period) following
the
payment in full of the Certificates (as defined in the Pooling and Servicing
Agreement) and any notes backed by the Certificates (the “Notes”)
(j) Severability. If
any term, provision, covenant, or condition of this Agreement, or the
application thereof to any party or circumstance, shall be held to be invalid
or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force
and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties
as to
the subject matter of this Agreement and the deletion of such portion of
this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(k) Consent
to Recording. Each
party hereto consents to the monitoring or recording, at any time and from
time
to time, by the other party of any and all communications between officers
or
employees of the parties, waives any further notice of such monitoring or
recording, and agrees to notify its officers and employees of such monitoring
or
recording.
(l) Waiver
of Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
(m)
Limited Set-Off. The provisions for Set-off set forth in Section 6(e) of
the
ISDA Form Master Agreement shall not apply for purposes of this Transaction.
Notwithstanding any provision of this Agreement or any other existing or
future
agreement, each party irrevocably waives any and all rights it may have to
set
off, net, recoup or otherwise withhold or suspend or condition payment or
performance of any obligation between it and the other party hereunder against
any obligation between it and the other party under any other agreements.
(n)
This Agreement may be executed in several counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the
same
instrument.
(o)
Additional Definitional Provisions.
As
used in this Agreement, the following terms shall have the meanings set forth
below, unless the context clearly requires otherwise:
“Moody’s”
means Xxxxx’x Investors Service, Inc., or any successor.
“S&P”
means Standard & Poor's Ratings Services, or any successor.
“Fitch”
means Fitch Ratings Ltd., or any successor.
(p)
Trustee Liability Limitations. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by Supplemental
Interest Trust Trustee, not individually or personally but solely as
Supplemental Interest Trust Trustee of the Counterparty, in the exercise
of the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Counterparty is made and intended not as personal representations, undertakings
and agreements by Supplemental Interest Trust Trustee, but is made and intended
for the purpose of binding only the Counterparty, (c) nothing herein contained
shall be construed as creating any liability on Supplemental Interest Trust
Trustee individually or personally, to perform any covenant either expressed
or
implied contained herein, all such liability, if any, being expressly waived
by
the parties hereto and by any Person claiming by, through or under the parties
hereto; provided that nothing in this paragraph shall relieve Supplemental
Interest Trust Trustee from performing its duties and obligations under the
Pooling and Servicing Agreement in accordance with the standard of care set
forth therein, and (d) under no circumstances shall Supplemental Interest
Trust
Trustee be personally liable for the payment of any indebtedness or expenses
of
the Counterparty or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Counterparty
under this Agreement or any other related documents.
(q)
Additional Provisions. The provisions of Sections 5(a)(ii), 5(a)(iii) and
5(a)(iv) shall not apply to BSFP or Counterparty.
6)
"Affiliate" will have the meaning specified in Section 14 of the ISDA Form
Master Agreement, provided that BSFP shall not be deemed to have any Affiliates
for purposes of this Agreement, including for purposes of Section
6(b)(ii).
7)
Rating Agency Downgrade. In the event that BSFP’s long-term unsecured and
unsubordinated debt rating is reduced below “AA-” by S&P or its long-term
unsecured and unsubordinated debt rating is withdrawn or reduced below “Aa3” by
Moody’s (and together with S&P and Fitch, the “Swap Rating Agencies”, and
such rating thresholds, “Approved Rating Thresholds”), then within 30 days after
such rating withdrawal or downgrade, BSFP shall, at its own expense and subject
to the Rating Agency Condition, either (i) arrange for another entity to
replace
BSFP as party to this Agreement that meets or exceeds the Approved Rating
Thresholds on terms substantially similar to this Agreement, (ii) obtain
a
guaranty of, or a contingent agreement of another person with the Approved
Rating Thresholds to honor, BSFP’s obligations under this Agreement or (iii)
take such other action that satisfies the Rating Agency Condition; provided,
however, that if BSFP’s long-term unsecured and unsubordinated debt rating is
withdrawn or reduced below “BBB-” by S&P, BSFP shall, at its own expense and
subject to the rating agency condition, not later than 10 days after the
occurrence of such a downgrade or withdrawal by S&P, either (i) arrange for
another entity to replace BSFP as party to this Agreement that meets or exceeds
the Approved Rating Thresholds on terms substantially similar to this Agreement,
(ii) obtain a guaranty of, or a contingent agreement of another person with
the
Approved Rating Thresholds, or (iii) take such other action that satisfies
the
Rating Agency Condition. For purposes of this provision, “Rating Agency
Condition” means, with respect to any particular proposed act or omission to act
hereunder that the party acting or failing to act must consult with each
of the
Swap Rating Agencies then providing a rating of the Certificates and any
notes
and receive from each of the Swap Rating Agencies a prior written confirmation
that the proposed action or inaction would not cause a downgrade or withdrawal
of the then-current rating of Certificates or Notes.
8)
Payment Instructions. BSFP hereby agrees that, unless notified in writing
by the
Supplemental Interest Trust Trustee of other payment instructions, any and
all
amounts payable by BSFP to the Counterparty under this Agreement shall be
paid
to the Supplemental Interest Trust Trustee at the account specified in Section
5.
9)
Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the
end thereof the following subsection (g):
"(g) Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:
(1)
Nonreliance.
(i) It is not relying on any statement or representation of the other party
regarding the Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the Confirmation in respect
of that Transaction and (ii) it has consulted with its own legal, regulatory,
tax, business, investment, financial and accounting advisors to the extent
it
has deemed necessary, and it has made its own investment, hedging and trading
decisions based upon its own judgment and upon any advice from such advisors
as
it has deemed necessary and not upon any view expressed by the other
party.
(2)
Evaluation
and Understanding.
(i)
BSFP
is acting for its own account and [Deutsche Bank National Trust Company]
is
acting in its capacity as Trust Administrator under the Pooling and Servicing
Agreement and not for its own account. BSFP has made its own independent
decisions to enter into this Transaction and as to whether this Transaction
is
appropriate or proper for it based upon its own judgment and upon advice
from
such advisors as it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a recommendation
to enter into this Transaction; it being understood that information and
explanations related to the terms and conditions of this Transaction shall
not
be considered investment advice or a recommendation to enter into this
Transaction. It has not received from the other party any assurance or guarantee
as to the expected results of this Transaction. The Trust Administrator was
directed to enter this Agreement by the Trust.
(ii)
|
It
is capable of evaluating and understanding (on its own behalf or
through
independent professional advice), and understands and accepts,
the terms,
conditions and risks of this Transaction. It is also capable of
assuming,
and assumes, the financial and other risks of this
Transaction.
|
(iii)
The
other party is not acting as a fiduciary or an advisor for it in respect
of this
Transaction.
(3)
Purpose.
It is an “eligible swap participant” as such term is defined in Section
35.1(b)(2) of the regulations (17 C.F.R 35) promulgated under, an and “eligible
contract participant” as defined in Section 1(a)(12) of, the Commodity Exchange
Act, as amended, and it is entering into the Transaction for the purposes
of
managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.”
10)
Transfer, Amendment and Assignment. No transfer, amendment, waiver, supplement,
assignment or other modification of this Confirmation shall be permitted
by
either party unless each of S&P, Xxxxx’x and Fitch has been provided notice
of such transfer, amendment, waiver, supplement, assignment or other
modification and confirms in writing (including by facsimile transmission)
that
it will not qualify, downgrade, withdraw or modify its then current rating
of
any Certificates or Notes.
5. |
Additional
Termination Events:
|
a)
An Additional Termination Event shall occur under the ISDA Form Master Agreement
upon unrescindable notice by the Servicer or NIM Insurer that it will purchase
all Mortgage Loans in accordance with Section 9.01 of the Pooling and Servicing
Agreement. With respect to such Additional Termination Event, Counterparty
shall
be the sole Affected Party and this Transaction shall be the sole Affected
Transaction; provided, however, that notwithstanding Section 6(b)(iv) of
the
ISDA Form Master Agreement, either party may designate an Early Termination
Date
in respect of this Additional Termination Event; provided, further, that
such
Early Termination Date shall not be prior to the final Distribution Date.
If
such an Additional Termination Event occurs, then, for purposes of determining
the related payment under Section 6(e) of the ISDA Form Master Agreement,
for
all Calculation Periods beginning after the related Early Termination Date,
the
definition of Notional Amount in the Confirmation shall be deleted in its
entirety and replaced with the following: With respect to each Calculation
Period, the Calculation Amount for such Calculation Period as set forth in
the
Schedule of Calculation Amounts attached hereto multiplied by a factor. The
factor will be set in connection with such Early Termination Date to be equal
to
the quotient of (i) the Notional Amount immediately prior to the Early
Termination Date divided by (ii) the Calculation Amount for such Calculation
Period set forth in the Schedule of Calculation Amounts attached
hereto.
(b)
If the Trust Administrator is unable to pay its Class A Certificates or
fails or admits in writing its inability to pay it’s Class A Certificates as
they become due, then an Additional Termination Event shall have occurred
with
respect to Counterparty and Counterparty shall be the sole Affected Party
with
respect to such Additional Termination Event. Notwithstanding the provisions
of
section 6(b)(iv) of the Form Master Agreement, either BSFP or Counterparty
may
designate an Early Termination Date in respect of this Additional Termination
Event.
(c)
If a Rating Agency Downgrade has occurred and BSFP has not, within the
applicable time period specified therein, complied with Part 4(7) above,
then an
Additional Termination Event shall have occurred with respect to BSFP, and
BSFP
shall be the sole Affected Party with respect to such Additional Termination
Event.
(d)
If, upon the occurrence of a Swap Disclosure Event (as defined in Part 8
below)
BSFP has not, within 10 Business Days after such Swap Disclosure Event complied
with any of the provisions set forth in clause (iii) of Part 8 below, then
an
Additional Termination Event shall have occurred with respect to BSFP and
BSFP
shall be the sole Affected Party with respect to such Additional Termination
Event
The
Pooling and Servicing Agreement shall not be amended or supplemented without
the
prior written consent of BSFP where such consent is required under the Pooling
and Servicing Agreement, such consent not to be unreasonably withheld, if
such
amendment or supplement would have a materially adverse effect on the Swap
Provider (including, for the avoidance of doubt, resulting in the Swap
Provider’s receiving a lesser amount or being required to pay a greater amount
in connection with this Agreement than the Swap Provider would have received
or
been required to pay in the absence of such amendment or supplemental
agreement). Any amendment or supplement in violation of the preceding sentence
shall constitute an Additional Termination Event hereunder, with respect
to
which Counterparty shall be the sole Affected Party and all Transactions
hereunder shall be Affected Transactions.
6.
On
or prior to the first day of each Calculation Period, Counterparty shall
provide
or make available to BSFP statements indicating (i) the outstanding principal
balance of the Reference Loans as of the Due Date occurring in the month
in
which the Calculation Period begins and (ii) the outstanding principal balance
of the Certificates as of the first day of such Calculation Period.
7. Failure
to Pay or Deliver. The word “third” shall be replaced by the word “second” in
the third line of Section 5(a)(i) of the ISDA Form Master Agreement.
8. Compliance
with Regulation AB.
(i) BSFP
agrees and acknowledges that Indymac MBS, Inc. (the “Depositor”) is required
under Regulation AB as defined under the Pooling and Servicing Agreement,
to
disclose certain financial information regarding BSFP or its group of affiliated
entities, if applicable, depending on the aggregate “significance percentage” of
this Agreement and any other derivative contracts between BSFP or its group
of
affiliated entities, if applicable, and Counterparty, as calculated from
time to
time in accordance with Item 1115 of Regulation AB.
(ii) It
shall be a swap disclosure event (“Swap Disclosure Event”) if, on any Business
Day after the date hereof, the Depositor requests from BSFP the applicable
financial information described in Item 1115 of Regulation AB (such request
to
be based on a reasonable determination by the Depositor, in good faith, that
such information is required under Regulation AB) (the “Swap Financial
Disclosure”).
(iii) Upon
the occurrence of a Swap Disclosure Event, BSFP, at its own expense, shall
(1)(a) either (i) provide to the Depositor the current Swap Financial Disclosure
in an XXXXX-compatible format (for example, such information may be provided
in
Microsoft Word® or Microsoft Excel® format but not in .pdf format) or (ii)
provide written consent to the Depositor to incorporation by reference of
such
current Swap Financial Disclosure that are filed with the Securities and
Exchange Commission in the reports of the Trust filed pursuant to the Exchange
Act, (b) if applicable, cause its outside accounting firm to provide its
consent
to filing or incorporation by reference of such accounting firm’s report
relating to their audits of such current Swap Financial Disclosure in the
Exchange Act Reports of the [Depositor], and (c) provide to the [Depositor]
any
updated Swap Financial Disclosure with respect to BSFP or any entity that
consolidates BSFP within five days of the release of any such updated Swap
Financial Disclosure; (2) secure another entity to replace BSFP as party
to this
Agreement on terms substantially similar to this Agreement, which entity
(or a
guarantor therefor) meets or exceeds the Approved Rating Thresholds and which
satisfies the Rating Agency Condition and which entity is able to comply
with
the requirements of Item 1115 of Regulation AB, or (3) obtain a guaranty
of
BSFP’s obligations under this Agreement from an affiliate of BSFP that is able
to comply with the financial information disclosure requirements of Item
1115 of
Regulation AB, and cause such affiliate to provide Swap Financial Disclosure
and
any future Swap Financial Disclosure, such that disclosure provided in respect
of such affiliate will satisfy any disclosure requirements applicable to
the
Swap Provider.
(iv) BSFP
agrees that, in the event that BSFP provides Swap Financial Disclosure to
the
Depositor in accordance with clause (iii)(1) of Part 8 or causes its affiliate
to provide Swap Financial Disclosure to the Depositor in accordance with
clause
(iii)(3) of Part 8, it will indemnify and hold harmless the Depositor, its
respective directors or officers and any person controlling the Depositor,
from
and against any and all losses, claims, damages and liabilities caused by
any
untrue statement or alleged untrue statement of a material fact contained
in
such Swap Financial Disclosure or caused by any omission or alleged omission
to
state in such Swap Financial Disclosure a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(v) If
the Depositor reasonably requests, BSFP shall provide such other information
as
may be necessary for the Depositor to comply with Item 1115 of Regulation
AB.
(vi) the
Depositor shall be an express third party beneficiary of this Agreement as
if a
party hereto to the extent of the Depositor’s rights explicitly specified in
this Part 8.
9. Pooling
and Servicing Agreement. BSFP hereby agrees that, notwithstanding any provision
of this agreement to the contrary, Counterparty’s obligations to pay any amounts
owing under this Agreement shall be subject to Section [4.05] of the Pooling
and
Servicing Agreement and BSFP’s right to receive payment of such amounts shall be
subject to Section 4.05 of the Pooling and Servicing Agreement.
10. Account
Details and
Settlement
Information: Payments
to BSFP:
Citibank,
N.A., New York
ABA
Number: 000-0000-00, for the account of
Bear,
Xxxxxxx Securities Corp.
Account
Number: 0925-3186, for further credit to
Bear
Xxxxxxx Financial Products Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Payments
to
Counterparty:
Deutsche
Bank Trust Co - Americas
ABA
000-000-000
Account:
00000000
Name:
NYLD Funds Control - Stars West
Re:
IndyMac INDS 2006-A
This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original but all of which together shall constitute one and the same
instrument.
Counterparty
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to BSFP a facsimile of the fully-executed
Confirmation to 000-000-0000.
To discuss an inquiry regarding U.S. Transactions, please contact Xxxx
Xxxxxxx
by telephone at 000-000-0000.
For all other inquiries please contact Derivatives
Documentation by
telephone at 000-0-000-0000.
Originals will be provided for your execution upon your request.
NEITHER
THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE
OF THE
BEAR XXXXXXX COMPANIES INC. OTHER THAN BSFP IS AN OBLIGOR OR A
CREDIT
SUPPORT PROVIDER ON THIS
AGREEMENT.
|
We
are very pleased to have executed this Transaction with you and we look forward
to completing other transactions with you in the near future.
Very
truly yours,
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
|
|
By:
|
|
Name:
|
|
Title:
|
Counterparty,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the Trade Date.
Deutsche
Bank National Trust Company, not individually, but solely as Supplemental
Interest Trust Trustee on behalf of the Supplemental Interest Trust with
respect
to the Bank Home Equity Mortgage Loan Asset-Backed Certificates, Series INDS
2006-A
By:
|
|
Name:
|
|
Title:
|
fs
SCHEDULE
OF CALCULATION AMOUNTS
(with
respect to the Floating Amounts all such dates subject to adjustment in
accordance with the Business Day Convention and with respect to the Fixed
Amounts all such dates subject to no adjustment)
From
and Including
|
To
but excluding
|
Calculation
Amounts
|
Effective
Date
|
6/25/2006
|
1,404,732.00
|
6/25/2006
|
7/25/2006
|
1,391,952.00
|
7/25/2006
|
8/25/2006
|
1,377,320.00
|
8/25/2006
|
9/25/2006
|
1,360,860.00
|
9/25/2006
|
10/25/2006
|
1,342,612.00
|
10/25/2006
|
11/25/2006
|
1,322,612.00
|
11/25/2006
|
12/25/2006
|
1,300,908.00
|
12/25/2006
|
1/25/2007
|
1,277,552.00
|
1/25/2007
|
2/25/2007
|
1,252,608.00
|
2/25/2007
|
3/25/2007
|
1,226,140.00
|
3/25/2007
|
4/25/2007
|
1,198,232.00
|
4/25/2007
|
5/25/2007
|
1,168,960.00
|
5/25/2007
|
6/25/2007
|
1,138,408.00
|
6/25/2007
|
7/25/2007
|
1,106,668.00
|
7/25/2007
|
8/25/2007
|
1,073,884.00
|
8/25/2007
|
9/25/2007
|
1,040,108.00
|
9/25/2007
|
10/25/2007
|
1,005,716.00
|
10/25/2007
|
11/25/2007
|
971,844.00
|
11/25/2007
|
12/25/2007
|
939,000.00
|
12/25/2007
|
1/25/2008
|
906,572.00
|
1/25/2008
|
2/25/2008
|
875,200.00
|
2/25/2008
|
3/25/2008
|
841,604.00
|
3/25/2008
|
4/25/2008
|
794,228.00
|
4/25/2008
|
5/25/2008
|
741,912.00
|
5/25/2008
|
6/25/2008
|
692,760.00
|
6/25/2008
|
7/25/2008
|
646,948.00
|
7/25/2008
|
8/25/2008
|
603,872.00
|
8/25/2008
|
9/25/2008
|
565,448.00
|
9/25/2008
|
10/25/2008
|
538,812.00
|
10/25/2008
|
11/25/2008
|
518,164.00
|
11/25/2008
|
12/25/2008
|
498,212.00
|
12/25/2008
|
1/25/2009
|
478,924.00
|
1/25/2009
|
2/25/2009
|
460,284.00
|
2/25/2009
|
3/25/2009
|
442,268.00
|
3/25/2009
|
4/25/2009
|
424,856.00
|
4/25/2009
|
5/25/2009
|
408,028.00
|
5/25/2009
|
6/25/2009
|
391,760.00
|
6/25/2009
|
7/25/2009
|
376,040.00
|
7/25/2009
|
8/25/2009
|
360,844.00
|
8/25/2009
|
9/25/2009
|
346,160.00
|
9/25/2009
|
10/25/2009
|
331,964.00
|
10/25/2009
|
11/25/2009
|
318,248.00
|
11/25/2009
|
12/25/2009
|
304,992.00
|
12/25/2009
|
1/25/2010
|
292,176.00
|
1/25/2010
|
2/25/2010
|
279,792.00
|
2/25/2010
|
3/25/2010
|
267,824.00
|
3/25/2010
|
4/25/2010
|
256,256.00
|
4/25/2010
|
5/25/2010
|
245,076.00
|
5/25/2010
|
6/25/2010
|
237,868.00
|
6/25/2010
|
7/25/2010
|
232,596.00
|
7/25/2010
|
8/25/2010
|
227,432.00
|
8/25/2010
|
9/25/2010
|
222,300.00
|
9/25/2010
|
10/25/2010
|
214,640.00
|
10/25/2010
|
11/25/2010
|
205,088.00
|
11/25/2010
|
12/25/2010
|
195,536.00
|
12/25/2010
|
1/25/2011
|
185,992.00
|
1/25/2011
|
2/25/2011
|
176,452.00
|
2/25/2011
|
3/25/2011
|
166,920.00
|
3/25/2011
|
4/25/2011
|
157,392.00
|
4/25/2011
|
5/25/2011
|
147,868.00
|
5/25/2011
|
6/25/2011
|
138,352.00
|
6/25/2011
|
7/25/2011
|
133,128.00
|
7/25/2011
|
8/25/2011
|
128,068.00
|
8/25/2011
|
9/25/2011
|
123,172.00
|
9/25/2011
|
10/25/2011
|
118,332.00
|
10/25/2011
|
11/25/2011
|
113,540.00
|
11/25/2011
|
12/25/2011
|
108,752.00
|
12/25/2011
|
1/25/2012
|
103,964.00
|
1/25/2012
|
2/25/2012
|
99,180.00
|
2/25/2012
|
3/25/2012
|
94,400.00
|
3/25/2012
|
4/25/2012
|
89,624.00
|
4/25/2012
|
Termination
Date
|
84,848.00
|
EXHIBIT
L
RULE
144A
LETTER
____________,
20__
IndyMac
MBS, Inc.
000
Xxxxx
Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Attention:
: [___________]
Series
INDS 2006-A
Re:
|
Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A Home
Equity
Mortgage Loan Asset-Backed Certificates, Series INDS 2006-A, Class
[_]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”),
or
any state securities laws and are being transferred to us in a transaction
that
is exempt from the registration requirements of the Act and any such laws,
(b)
we have such knowledge and experience in financial and business matters that
we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and
all
matters relating thereto or any additional information deemed necessary to
our
decision to purchase the Certificates, (d) we are not an employee benefit plan
that is subject to the Employee Retirement Income Security Act of 1974, as
amended, or a plan or arrangement that is subject to Section 4975 of the
Internal Revenue Code of 1986, as amended, nor are we acting on behalf of any
such plan or arrangement or using the assets of any such plan or arrangement
to
effect such acquisition, (e) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the 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) to the extent that the Certificate transferred is a Class C Certificate,
we
are a bankruptcy-remote entity and (g) we are a “qualified institutional buyer”
as that term is defined in Rule 144A under the Act and have completed either
of
the forms of certification to that effect attached hereto as Annex 1 or Annex
2.
We are aware that the sale to us is being made in reliance on Rule 144A. We
are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates may be resold, pledged
or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of
a
qualified institutional buyer to whom notice is given that the resale, pledge
or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Act.
Annex
1
to Exhibit L
Qualified
Institutional Buyer Status Under SEC Rule 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule
144A”)
because (i) the Buyer owned or invested on a discretionary basis
$____________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
___ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, that is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) 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, as amended.
___ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and that is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
___ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940, as amended.
___ 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, as amended.
3. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer, (ii) securities that are part of an unsold allotment to or subscription
by the Buyer, if the Buyer is a dealer, (iii) securities issued or guaranteed
by
the U.S. or any instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi) repurchase agreements,
(vii) securities owned but subject to a repurchase agreement and (viii)
currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned or invested
on
a discretionary basis by the Buyer, the Buyer used the cost of such securities
to the Buyer and did not include any of the securities referred to in the
preceding paragraph, except (i) where the Buyer reports its securities holdings
in its financial statements on the basis of their market value and (ii) no
current information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the securities
may
be valued at market. Further, in determining such aggregate amount, the Buyer
may have included securities owned by subsidiaries of the Buyer, but only if
such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
Print
Name of Transferee
|
||||||||
By:
|
||||||||
Name:
|
||||||||
Title:
|
||||||||
Date:
|
1 Buyer
must own or invest on a discretionary basis at least $100,000,000 in securities
unless Buyer is a dealer, and, in that case, Buyer must own or invest on
a
discretionary basis at least $10,000,000 in securities.
Annex
2
to Exhibit L
Qualified
Institutional Buyer Status Under SEC Rule 144A
[For
Transferees that are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule
144A”)
because Buyer is part of a Family of Investment Companies, is such an officer
of
the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
___ The
Buyer
owned $____________ in securities (other than the excluded securities referred
to below) as of the end of the Buyer’s most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies that owned in the aggregate
$________ in securities (other than the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print
Name of Buyer or Advisor
|
||||||||
By:
|
||||||||
Name:
|
||||||||
Title:
|
IF
AN ADVISOR:
|
||||||||
Print
Name of Buyer
|
||||||||
Date:
|
EXHIBIT
M
FORM
OF
REQUEST FOR RELEASE
(for
Trustee)
IndyMac
MBS, Inc.,
Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2006-A
Loan
Information
Name
of Mortgagor
|
||
Servicer
Loan
No.:
|
Trustee
Name:
|
||
Address:
|
||
Trustee
Mortgage
File No.:
|
The
undersigned Servicer hereby acknowledges that it has received from Deutsche
Bank
National Trust Company, as Trustee for the Holders of Home Equity Mortgage
Loan
Asset-Backed Certificates, of the above-referenced Series, the documents
referred to below (the “Documents”).
All
capitalized terms not otherwise defined in this Request for Release shall have
the meanings given them in the Pooling and Servicing Agreement (the
“Pooling
and Servicing Agreement”)
relating to the above-referenced Series among the Trustee, IndyMac Bank, F.S.B.,
as Seller and Servicer and IndyMac MBS, Inc., as Depositor.
(__)
|
Mortgage
Note dated ____________, ____, in the original principal sum of
$__________, made by __________________ payable to, or endorsed to
the
order of, the Trustee.
|
|
(__)
|
Mortgage
recorded on ________________ as instrument no. __________ in the
County
Recorder’s Office of the County of ____________, State of ___________ in
book/reel/docket __________of official records at page/image
___________.
|
|
(__)
|
Deed
of Trust recorded on ____________ as instrument no. ____________
in the
County Recorder’s Office of the County of ___________, State of __________
in book/reel/docket _____________ of official records at page/image
___________.
|
|
(__)
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on ____________,
____, as instrument no. __________ in the County Recorder’s Office of the
County of ________, State of _________ in book/reel/docket _________
of
official records at page/image _____________.
|
|
(__)
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
|
(__)
|
||
(__)
|
||
(__)
|
||
(__)
|
The
undersigned Servicer hereby acknowledges and agrees as follows:
(1) The
Servicer shall hold and retain possession of the Documents in trust for the
benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Servicer shall not cause or knowingly permit the Documents to become subject
to,
or encumbered by, any claim, liens, security interest, charges, writs of
attachment or other impositions nor shall the Servicer assert or seek to assert
any claims or rights of setoff to or against the Documents or any proceeds
thereof.
(3) The
Servicer shall return each and every Document previously requested from the
Mortgage File to the Trustee when the need therefor no longer exists, unless
the
Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Servicer shall at all times be earmarked
for the account of the Trustee, and the Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the Servicer’s
possession, custody or control.
IndyMac
Bank, F.S.B.
|
||||||||||||||
By:
|
||||||||||||||
Its:
|
Date:
________________
EXHIBIT
N
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To:
|
Deutsche
Bank National Trust Company, Attn:
[____________]
|
Re:
|
The
Pooling & Servicing Agreement dated as of May 1, 2006 among IndyMac
Bank, F.S.B., as Seller and Servicer, IndyMac MBS, Inc., as Depositor,
and
Deutsche Bank National Trust Company as Trustee and Supplemental
Interest
Trust 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 Loans described below, for the reason indicated.
FT
Account #: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents
(check
one)
_______1. Mortgage
Loan paid in full (IndyMac hereby certifies that all amounts have been
received.)
_______2. Mortgage
Loan Liquidated (IndyMac hereby certifies that all proceeds of foreclosure,
insurance, or other liquidation have been finally received.)
_______3. Mortgage
Loan in Foreclosure.
_______4. Other
(explain): ____________________________________
If
item 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous receipt on file with you,
as
well as an additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of all
of
the above documents to you as Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
IndyMac
Bank, F.S.B.
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
By:
|
||
Name:
|
||
Title:
|
||
Date:
|
Trustee
Consent to Release and
Acknowledgment
of Receipt
By:
|
||
Name:
|
||
Title:
|
||
Date:
|
EXHIBIT
O-1
FORM
OF CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM
10-K
Re:
IndyMac
MBS, Inc.
Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this annual report on Form 10-K and all reports on Form 10-D required
to be filed in respect of the period covered by this report on Form 10-K of
Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2006-A (the “Exchange Act
Periodic Reports”);
2. Based
on
my knowledge, the Exchange Act Periodic Reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, the distribution, servicing and other information required to
be
provided under Form 10-D for the period covered by this report is included
in
the Exchange Act Periodic Reports;
4. Based
on
my knowledge and the servicer compliance statement(s) required in this report
under Item 1123 of Regulation AB and except as disclosed in the Exchange Act
Periodic Reports, the servicer(s) [has/have] fulfilled [its/their] obligations
under the servicing agreement(s) in all material respects; and;
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Deutsche Bank National Trust
Company.
Date:
__________________
[Signature]
[Title]
|
EXHIBIT
O-2
TRUSTEE’S
OFFICER’S CERTIFICATE
I,
____________________, a duly elected and acting officer of Deutsche Bank
National Trust Company (the “Trustee”) hereby certify as follows:
Reference
is hereby made to the Pooling and Servicing Agreement dated as of May 1, 2006
(the “Pooling Agreement”) by and among IndyMac Bank, F.S.B., as seller and
servicer,
IndyMac
MBS, Inc., as depositor and Deutsche Bank National Trust Company, as trustee
and
supplemental interest trustee, pursuant to which was created the Home Equity
Mortgage Loan Asset-Backed Trust, Series INDS 2006-A (the “Trust”). Capitalized
terms used herein but not defined shall have the meanings assigned to them
in
the Pooling Agreement.
1. I
am an
authorized officer of the Trustee and I have reviewed this annual report on
Form
10-K and all reports on Form 10-D required to be filed in respect of the period
covered by this report on Form 10-K of Home Equity Mortgage Loan Asset-Backed
Trust, Series INDS 2006-A (the “Exchange Act Periodic Reports”);
2. For
purposes of this certificate, “Relevant Information” means the information in
the report on assessment of the Trustee’s compliance with the servicing criteria
set forth in Item 1122(d) of Reg AB (the “Servicing Assessment”), the registered
public accounting firm’s attestation provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Reg AB ( the
“Attestation Report”) applicable to the Trustee and the Monthly Statements
(excluding information provided, or based on information provided, by the
Servicer or any servicer) and those items in Exhibit S attached to the Pooling
and Servicing Agreement which indicate the 4.03 statement or the Trustee as
the
responsible party during the Relevant Year. Based on my knowledge, the Relevant
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this annual report;
and
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in the Monthly
Statements.
4. I
am
responsible for reviewing the activities performed by the Trustee, as servicer
under the Pooling Agreement during the Relevant Year. Based upon the review
required by the Pooling Agreement and except as disclosed in the Servicing
Assessment or Attestation Report, to the best of my knowledge, the Trustee
has
fulfilled its obligations under the Pooling Agreement throughout the Relevant
Year. Relevant Year shall mean 200__.
DATED
as
of _____________, 200____.
By:
_____________________________
Name:
___________________________
Title:
__________________________
EXHIBIT
P
[RESERVED]
EXHIBIT
Q
[RESERVED]
EXHIBIT
R
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
NA
|
||
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
|
X
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements.
|
X
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
||
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X (with
respect to a swap disclosure event)
|
X
|
EXHIBIT
S
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.24(e). If the Trustee is indicated below as to any item, then
the
Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.03 statement” are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and
b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
Form
|
Item
|
Description
|
Responsible
Party
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
||
1
|
Distribution
and Pool Performance Information
|
||
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.03
statement
|
||
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.03
statement
|
||
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.03
statement
|
||
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.03
statement
|
||
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
4.03
statement
|
||
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
4.03
statement
|
||
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.03
statement
|
||
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.03
statement
|
||
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable.
|
4.03
statement
|
||
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.03
statement
|
||
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.03
statement
|
||
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term, pool
factors and prepayment amounts.
|
4.03
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.03
statement.
Form
10-D report: Servicer
|
||
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.03
statement
|
||
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
Form
10-D report: Servicer
|
||
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Trustee (based on actual knowledge to the extent not
notified
by the Servicer or the Depositor)and Depositor (to the extent of
actual
knowledge)
|
||
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.03
statement
|
||
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a pre-funding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any pre-funding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Servicer
Form
10-D report: Servicer
|
||
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
N/A
|
||
2
|
Legal
Proceedings
|
||
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
of 20% or more of pool assets as of the Cut-off Date
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Seller
Trustee
|
||
3
|
Sales
of Securities and Use of Proceeds
|
||
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
||
4
|
Defaults
Upon Senior Securities
|
||
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Trustee
|
||
5
|
Submission
of Matters to a Vote of Security Holders
|
||
Information
from Item 4 of Part II of Form 10-Q
|
Party
submitting the matter to Holders for vote
|
||
6
|
Significant
Obligors of Pool Assets
|
||
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||
7
|
Significant
Enhancement Provider Information
|
||
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
8
|
Other
Information
|
||
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
9
|
Exhibits
|
||
Distribution
report
|
Trustee
|
||
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
1.01
|
Entry
into a Material Definitive Agreement
|
||
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
||
1.02
|
Termination
of a Material Definitive Agreement
|
||
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
||
1.03
|
Bankruptcy
or Receivership
|
||
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Depositor, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, affiliated Servicer, other Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Trustee, significant obligor, credit enhancer (10% or
more),
derivatives counterparty
|
Depositor
|
||
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.03 statement
|
Servicer/Trustee
(to the extent of actual knowledge)
|
||
3.03
|
Material
Modification to Rights of Security Holders
|
||
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Trustee
|
||
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
5.06
|
Change
in Shell Company Status
|
||
[Not
applicable to ABS issuers]
|
Depositor
|
||
6.01
|
ABS
Informational and Computational Material
|
||
[Not
included in reports to be filed under Section 3.18]
|
Depositor
|
||
6.02
|
Change
of Servicer or Trustee
|
||
Requires
disclosure of any removal, replacement, substitution or addition
of any
servicer, affiliated servicer, other servicer servicing 10% or more
of
pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Servicer
|
||
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
or Trustee
|
||
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
6.05
|
Securities
Act Updating Disclosure
|
||
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
8.01
|
Other
Events
|
||
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
9B
|
Other
Information
|
||
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
15
|
Exhibits
and Financial Statement Schedules
|
||
Item
1112(b) - Significant
Obligor Financial Information
|
Servicer
|
||
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
of 20% or more of pool assets as of the Cut-off Date
|
Seller
Depositor
Trustee
Depositor
Servicer
Servicer
|
||
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Sponsor
(Seller)
Depositor
Trustee
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
Credit
Enhancer/Support Provider
Significant
Obligor
|
Seller
Depositor
Trustee
(only as to affiliations between the Trustee and such other parties
listed)
Servicer
Depositor
Depositor
Servicer
|
||
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
Item
1123 - Servicer Compliance Statement
|
Servicer
and Trustee
|