Exhibit 99.1
EXECUTION COPY
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee and Supplemental Interest Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2006
----------------------------------------
INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR39
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-AR39
==============================================================================
TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS 11
Section 1.01 Definitions.........................................11
Section 1.02 Rules of Construction...............................43
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES 45
Section 2.01. Conveyance of Mortgage Loans........................45
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.....48
Section 2.03. Representations, Warranties, and Covenants
of the Seller and the Servicer......................50
Section 2.04. Representations and Warranties of the Depositor as
to the Mortgage Loans...............................52
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.......................................52
Section 2.06. Execution and Delivery of Certificates..............53
Section 2.07. REMIC Matters.......................................53
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS 54
Section 3.01. Servicer to Service Mortgage Loans..................54
Section 3.02. [Reserved]..........................................55
Section 3.03. Rights of the Depositor and the Trustee in Respect
of the Servicer.....................................55
Section 3.04. [Reserved]..........................................55
Section 3.05. Trustee to Act as Servicer..........................55
Section 3.06. Collection of Mortgage Loan Payments; Certificate
Account; Distribution Account.......................55
Section 3.07. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.....................................58
Section 3.08. Access to Certain Documentation and Information
Regarding the Mortgage Loans........................58
Section 3.09. Permitted Withdrawals from the Certificate Account
and the Distribution Account........................59
Section 3.10. Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies..........................60
Section 3.11. Enforcement of Due-On-Sale Clauses;
Assumption Agreements...............................61
Section 3.12. Realization Upon Defaulted Mortgage Loans...........62
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.....64
Section 3.14. Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee.................65
Section 3.15. Servicing Compensation..............................65
Section 3.16. Access to Certain Documentation.....................66
Section 3.17. Annual Statement as to Compliance...................66
Section 3.18. Errors and Omissions Insurance; Fidelity Bonds......66
Section 3.19. The Swap Contract and the Corridor Contract.........66
Section 3.20. Notification of Adjustments.........................68
Section 3.21. Prepayment Charges..................................68
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TABLE OF CONTENTS
(Continued)
Page
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ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER 69
Section 4.01. Advances............................................69
Section 4.02. Priorities of Distribution..........................70
Section 4.03. [Reserved]..........................................74
Section 4.04. [Reserved]..........................................74
Section 4.05. Monthly Statements to Certificateholders............74
Section 4.06. Carryover Reserve Fund..............................76
Section 4.07. Determination of Pass-Through Rates for
LIBOR Certificates..................................77
Section 4.08. Supplemental Interest Trust and Supplemental
Interest Reserve Fund...............................78
ARTICLE FIVE THE CERTIFICATES 80
Section 5.01. The Certificates....................................80
Section 5.02. Certificate Register; Registration of Transfer
and Exchange of Certificates........................80
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates...85
Section 5.04. Persons Deemed Owners...............................85
Section 5.05. Access to List of Certificateholders' Names
and Addresses.......................................85
Section 5.06. Maintenance of Office or Agency.....................86
ARTICLE SIX THE DEPOSITOR AND THE SERVICER 87
Section 6.01. Respective Liabilities of the Depositor
and the Servicer....................................87
Section 6.02. Merger or Consolidation of the Depositor
or the Servicer.....................................87
Section 6.03. Limitation on Liability of the Depositor,
the Seller, the Servicer, and Others................87
Section 6.04. Limitation on Resignation of the Servicer...........88
ARTICLE SEVEN DEFAULT 89
Section 7.01. Events of Default...................................89
Section 7.02. Trustee to Act; Appointment of Successor............90
Section 7.03. Notification to Certificateholders..................91
ARTICLE EIGHT CONCERNING THE TRUSTEE 93
Section 8.01. Duties of the Trustee...............................93
Section 8.02. Certain Matters Affecting the Trustee...............93
Section 8.03. Trustee Not Liable for Certificates or
Mortgage Loans......................................95
Section 8.04. Trustee May Own Certificates........................95
Section 8.05. Trustee's Fees and Expenses.........................95
Section 8.06. Eligibility Requirements for the Trustee............96
Section 8.07. Resignation and Removal of the Trustee..............96
Section 8.08. Successor Trustee...................................97
Section 8.09. Merger or Consolidation of the Trustee..............98
Section 8.10. Appointment of Co-Trustee or Separate Trustee.......98
Section 8.11. Tax Matters.........................................99
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TABLE OF CONTENTS
(Continued)
Page
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ARTICLE NINE TERMINATION 103
Section 9.01. Termination upon Liquidation or Purchase
of the Mortgage Loans..............................103
Section 9.02. Final Distribution on the Certificates.............104
Section 9.03. Additional Termination Requirements................105
Section 9.04. Termination of the Supplemental Interest Trust.....105
ARTICLE TEN MISCELLANEOUS PROVISIONS 106
Section 10.01. Amendment..........................................106
Section 10.02. Recordation of Agreement; Counterparts.............107
Section 10.03. Governing Law......................................108
Section 10.04. Intention of Parties...............................108
Section 10.05. Notices............................................108
Section 10.06. Severability of Provisions.........................109
Section 10.07. Assignment.........................................109
Section 10.08. Limitation on Rights of Certificateholders.........109
Section 10.09. Inspection and Audit Rights........................110
Section 10.10. Certificates Nonassessable and Fully Paid..........110
Section 10.11. Official Record....................................111
Section 10.12. Protection of Assets...............................111
Section 10.13. Qualifying Special Purpose Entity..................111
ARTICLE ELEVEN EXCHANGE ACT REPORTING 112
Section 11.01. Filing Obligations.................................112
Section 11.02. Form 10-D Filings..................................112
Section 11.03. Form 8-K Filings...................................113
Section 11.04. Form 10-K Filings..................................113
Section 11.05. Xxxxxxxx-Xxxxx Certification.......................114
Section 11.06. Form 15 Filing.....................................114
Section 11.07. Report on Assessment of Compliance and
Attestation........................................114
Section 11.08. Use of Subcontractors..............................116
Section 11.09. Amendments.........................................116
-iii-
TABLE OF CONTENTS
(Continued)
SCHEDULES
Schedule I: Mortgage Loan Schedule......................................S-I-1
Schedule II: Representations and Warranties of the Seller/Servicer......S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans...S-III-1
Schedule IV: Form of Monthly Report.....................................S-IV-1
EXHIBITS
Exhibit A: Form of Senior Certificate....................................A-1
Exhibit B: Form of Subordinated Certificate..............................B-1
Exhibit C: Form of Class A-R Certificate.................................C-1
Exhibit D: [Reserved]....................................................D-1
Exhibit E Form of Reverse of Certificates...............................E-1
Exhibit F: Form of Class P Certificates..................................F-1
Exhibit G-1: Form of Initial Certification of Trustee....................G-1-1
Exhibit G-2: [Reserved]..................................................G-2-1
Exhibit G-3: Form of Delay Delivery Certification........................G-3-1
Exhibit G-4: [Reserved]..................................................G-4-1
Exhibit H-1: Form of Final Certification of Trustee......................H-1-1
Exhibit H-2: [Reserved]..................................................H-2-1
Exhibit I: Form of Transfer Affidavit....................................I-1
Exhibit J: Form of Transferor Certificate................................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A).....................K-1
Exhibit L: Form of Rule 144A Letter......................................L-1
Exhibit M: Form of Request for Release (for Trustee).....................M-1
Exhibit N: Request for Release of Documents..............................N-1
Exhibit O: [Reserved]....................................................O-1
Exhibit P-1: Form of Swap Contract.........................................P-1
Exhibit P-2: Form of Corridor Contract.....................................P-2
Exhibit Q [Reserved]....................................................Q-1
Exhibit R-1 Form of Performance Certification (Trustee)...................R-1
Exhibit S Form of Servicing Criteria to be Addressed in Assessment
of Compliance Statement.......................................S-2
Exhibit T Form of List of Item 1119 Parties.............................T-1
Exhibit U Form of Xxxxxxxx-Xxxxx Certification..........................U-1
THIS POOLING AND SERVICING AGREEMENT, dated as of December 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 trustee
(in that capacity, the "Supplemental Interest Trustee").
W i t n e s s e t h T h a t
In consideration of the mutual agreements set forth in this Agreement,
the parties agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates. As provided in this Agreement, the
Trustee shall elect that the Trust Fund (exclusive of the Swap Contract, the
Supplemental Interest Reserve Fund, the Corridor Contract, the Carryover
Reserve Fund and any amounts in respect of waived Prepayment Charges paid by
the Servicer to the Class P-1 and Class P-2 Certificates pursuant to the
second paragraph of Section 3.21) be treated for federal income tax purposes
as comprising three real estate mortgage investment conduits (each, a "REMIC"
or, in the alternative, "REMIC 1" , "REMIC 2" and the "Master REMIC"). Each
Certificate, other than the Class A-R Certificate, will represent ownership of
one or more regular interests in the Master REMIC for purposes of the REMIC
Provisions. Each REMIC 2 Interest (other than the Class R-2 Interest) is
hereby designated as a regular interest in REMIC 2. Each REMIC 1 Interest
(other than the Class R-1 Interest) is hereby designated as a regular interest
in REMIC 1. The Class A-R represents ownership of the sole class of residual
interest in each REMIC created under this Agreement. The Master REMIC will
hold as assets the several classes of uncertificated REMIC 2 Interests (other
than the Class R-2 Interest). REMIC 2 will hold as assets the several classes
of uncertificated REMIC 1 Interests (other than the Class R-1 Interest). REMIC
1 will hold as assets all property of the Trust Fund other than the Swap
Contract, the Corridor Contract, the Supplemental Interest Trust, the
Supplemental Interest Reserve Fund and the Carryover Reserve Fund. Each REMIC
1 Interest (other than the Class R-1 Interest) is hereby designated as a
regular interest in REMIC 1. The latest possible maturity date of all REMIC
regular interests created in this Agreement shall be the Latest Possible
Maturity Date. All amounts in respect of waived Prepayment Charges paid by the
Servicer to the Class P-1 and Class P-2 Certificates pursuant to the second
paragraph of Section 3.21 will be treated as paid directly by the Servicer to
the Class P-1 and Class P-2 Certificates and not as paid by or through any
REMIC created under this Agreement.
REMIC 1
The REMIC 1 Interests will have the Initial Principal Balances and
Pass-Through Rates as set forth in the following table:
Initial Principal
REMIC 1 Interests Balance(1) Pass-Through Rate
----------------- ------------------ -----------------
Class 1-1A $ 3,368,747.50 (2)
Class 1-1B $ 3,368,747.50 (3)
Class 1-2A $ 4,466,207.50 (2)
Initial Principal
REMIC 1 Interests Balance(1) Pass-Through Rate
----------------- ------------------ -----------------
Class 1-2B $ 4,466,207.50 (3)
Class 1-3A $ 5,564,275.00 (2)
Class 1-3B $ 5,564,275.00 (3)
Class 1-4A $ 6,656,758.75 (2)
Class 1-4B $ 6,656,758.75 (3)
Class 1-5A $ 7,737,911.25 (2)
Class 1-5B $ 7,737,911.25 (3)
Class 1-6A $ 8,798,537.50 (2)
Class 1-6B $ 8,798,537.50 (3)
Class 1-7A $ 9,827,076.25 (2)
Class 1-7B $ 9,827,076.25 (3)
Class 1-8A $ 10,929,117.50 (2)
Class 1-8B $ 10,929,117.50 (3)
Class 1-9A $ 11,721,595.00 (2)
Class 1-9B $ 11,721,595.00 (3)
Class 1-10A $ 12,547,456.25 (2)
Class 1-10B $ 12,547,456.25 (3)
Class 1-11A $ 13,194,711.25 (2)
Class 1-11B $ 13,194,711.25 (3)
Class 1-12A $ 13,443,976.25 (2)
Class 1-12B $ 13,443,976.25 (3)
Class 1-13A $ 13,029,672.50 (2)
Class 1-13B $ 13,029,672.50 (3)
Class 1-14A $ 12,628,128.75 (2)
Class 1-14B $ 12,628,128.75 (3)
Class 1-15A $ 12,238,953.75 (2)
Class 1-15B $ 12,238,953.75 (3)
Class 1-16A $ 11,861,770.00 (2)
Class 1-16B $ 11,861,770.00 (3)
Class 1-17A $ 11,593,152.50 (2)
Class 1-17B $ 11,593,152.50 (3)
Class 1-18A $ 11,138,915.00 (2)
Class 1-18B $ 11,138,915.00 (3)
Class 1-19A $ 10,906,010.00 (2)
Class 1-19B $ 10,906,010.00 (3)
Class 1-20A $ 10,522,042.50 (2)
Class 1-20B $ 10,522,042.50 (3)
Class 1-21A $ 10,534,220.00 (2)
Class 1-21B $ 10,534,220.00 (3)
Class 1-22A $ 9,987,640.00 (2)
Class 1-22B $ 9,987,640.00 (3)
Class 1-23A $ 9,502,735.00 (2)
Class 1-23B $ 9,502,735.00 (3)
Class 1-24A $ 9,410,452.50 (2)
Class 1-24B $ 9,410,452.50 (3)
2
Initial Principal
REMIC 1 Interests Balance(1) Pass-Through Rate
----------------- ------------------ -----------------
Class 1-25A $ 9,000,366.25 (2)
Class 1-25B $ 9,000,366.25 (3)
Class 1-26A $ 8,642,382.50 (2)
Class 1-26B $ 8,642,382.50 (3)
Class 1-27A $ 8,375,991.25 (2)
Class 1-27B $ 8,375,991.25 (3)
Class 1-28A $ 8,117,806.25 (2)
Class 1-28B $ 8,117,806.25 (3)
Class 1-29A $ 7,867,577.50 (2)
Class 1-29B $ 7,867,577.50 (3)
Class 1-30A $ 7,625,055.00 (2)
Class 1-30B $ 7,625,055.00 (3)
Class 1-31A $ 7,601,283.75 (2)
Class 1-31B $ 7,601,283.75 (3)
Class 1-32A $ 7,312,298.75 (2)
Class 1-32B $ 7,312,298.75 (3)
Class 1-33A $ 7,286,421.25 (2)
Class 1-33B $ 7,286,421.25 (3)
Class 1-34A $ 7,471,183.75 (2)
Class 1-34B $ 7,471,183.75 (3)
Class 1-35A $ 7,820,412.50 (2)
Class 1-35B $ 7,820,412.50 (3)
Class 1-36A $ 11,078,551.25 (2)
Class 1-36B $ 11,078,551.25 (3)
Class 1-37A $ 6,006,413.75 (2)
Class 1-37B $ 6,006,413.75 (3)
Class 1-38A $ 5,802,386.25 (2)
Class 1-38B $ 5,802,386.25 (3)
Class 1-39A $ 5,528,156.25 (2)
Class 1-39B $ 5,528,156.25 (3)
Class 1-40A $ 5,411,618.75 (2)
Class 1-40B $ 5,411,618.75 (3)
Class 1-41A $ 5,287,016.25 (2)
Class 1-41B $ 5,287,016.25 (3)
Class 1-42A $ 5,027,906.25 (2)
Class 1-42B $ 5,027,906.25 (3)
Class 1-43A $ 4,872,892.50 (2)
Class 1-43B $ 4,872,892.50 (3)
Class 1-44A $ 4,773,348.75 (2)
Class 1-44B $ 4,773,348.75 (3)
Class 1-45A $ 4,639,280.00 (2)
Class 1-45B $ 4,639,280.00 (3)
Class 1-46A $ 4,432,456.25 (2)
Class 1-46B $ 4,432,456.25 (3)
Class 1-47A $ 4,295,792.50 (2)
3
Initial Principal
REMIC 1 Interests Balance(1) Pass-Through Rate
----------------- ------------------ -----------------
Class 1-47B $ 4,295,792.50 (3)
Class 1-48A $ 4,211,130.00 (2)
Class 1-48B $ 4,211,130.00 (3)
Class 1-49A $ 4,033,497.50 (2)
Class 1-49B $ 4,033,497.50 (3)
Class 1-50A $ 3,956,792.50 (2)
Class 1-50B $ 3,956,792.50 (3)
Class 1-51A $ 3,863,485.00 (2)
Class 1-51B $ 3,863,485.00 (3)
Class 1-52A $ 3,667,942.50 (2)
Class 1-52B $ 3,667,942.50 (3)
Class 1-53A $ 3,728,050.00 (2)
Class 1-53B $ 3,728,050.00 (3)
Class 1-54A $ 3,908,715.00 (2)
Class 1-54B $ 3,908,715.00 (3)
Class 1-55A $ 4,045,268.75 (2)
Class 1-55B $ 4,045,268.75 (3)
Class 1-56A $ 5,566,522.50 (2)
Class 1-56B $ 5,566,522.50 (3)
Class 1-57A $ 5,707,737.50 (2)
Class 1-57B $ 5,707,737.50 (3)
Class 1-58A $ 11,619,468.75 (2)
Class 1-58B $ 11,619,468.75 (3)
Class 1-59A $ 23,645,558.75 (2)
Class 1-59B $ 23,645,558.75 (3)
Class 1-60A $ 41,989,282.50 (2)
Class 1-60B $ 41,989,282.50 (3)
Class 1-61A $ 462,647.50 (2)
Class 1-61B $ 462,647.50 (3)
Class 1-62A $ 448,378.75 (2)
Class 1-62B $ 448,378.75 (3)
Class 1-63A $ 434,550.00 (2)
Class 1-63B $ 434,550.00 (3)
Class 1-64A $ 421,145.00 (2)
Class 1-64B $ 421,145.00 (3)
Class 1-65A $ 408,156.25 (2)
Class 1-65B $ 408,156.25 (3)
Class 1-66A $ 395,567.50 (2)
Class 1-66B $ 395,567.50 (3)
Class 1-67A $ 383,365.00 (2)
Class 1-67B $ 383,365.00 (3)
Class 1-68A $ 371,540.00 (2)
Class 1-68B $ 371,540.00 (3)
Class 1-69A $ 360,080.00 (2)
Class 1-69B $ 360,080.00 (3)
4
Initial Principal
REMIC 1 Interests Balance(1) Pass-Through Rate
----------------- ------------------ -----------------
Class 1-70A $ 348,971.25 (2)
Class 1-70B $ 348,971.25 (3)
Class 1-71A $ 338,207.50 (2)
Class 1-71B $ 338,207.50 (3)
Class 1-72A $ 327,773.75 (2)
Class 1-72B $ 327,773.75 (3)
Class 1-73A $ 317,662.50 (2)
Class 1-73B $ 317,662.50 (3)
Class 1-74A $ 307,862.50 (2)
Class 1-74B $ 307,862.50 (3)
Class 1-75A $ 298,365.00 (2)
Class 1-75B $ 298,365.00 (3)
Class 1-76A $ 289,158.75 (2)
Class 1-76B $ 289,158.75 (3)
Class 1-77A $ 280,240.00 (2)
Class 1-77B $ 280,240.00 (3)
Class 1-78A $ 304,933.75 (2)
Class 1-78B $ 304,933.75 (3)
Class 1-79A $ 331,200.00 (2)
Class 1-79B $ 331,200.00 (3)
Class 1-80A $ 298,162.50 (2)
Class 1-80B $ 298,162.50 (3)
Class 1-81A $ 562,820.00 (2)
Class 1-81B $ 562,820.00 (3)
Class 1-82A $ 774,271.25 (2)
Class 1-82B $ 774,271.25 (3)
Class 1-83A $ 2,973,065.00 (2)
Class 1-83B $ 2,973,065.00 (3)
Class 1-84A $ 1,427,765.00 (2)
Class 1-84B $ 1,427,765.00 (3)
Class 1-Support (4) (4)
Class 1-P-1 $100 (5)
Class 1-P-2 $100 (5)
Class R-1 (6) (6)
------------------
(1) Scheduled principal, Principal Prepayments and Realized Losses will be
allocated first, to the Class 1-Support Interest and second, among the
other Classes designated "1-", first, sequentially to the Class having
the lowest cardinal number following such designation, in each case until
reduced to zero, and second, among each class having the same cardinal
number pro rata between each such class.
(2) Prior to the Distribution Date in December 2013, a rate equal to twice
the Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans
twice the Fixed Amount (as defined in the Swap Contract). On and after
the Distribution Date in December 2013 a rate equal to the Weighted
Average Adjusted Net Mortgage Rate of the Mortgage Loans.
5
(3) Prior to the Distribution Date in December 2013, a rate equal to the
lesser of (i) twice the Fixed Amount (as defined in the Swap Contract)
and (ii) twice the Weighted Average Adjusted Net Mortgage Rate of the
Mortgage Loans. On and after the Distribution Date in December 2013, a
rate equal to the Weighted Average Adjusted Net Mortgage Rate of the
Mortgage Loans.
(4) On the Closing Date and on each Distribution Date, following the
allocation of Principal Amounts and Realized Losses, the principal
balance in respect of the Class 1-Support Interest will equal the excess
of the principal balance of the Mortgage Loans (less $100 on the Closing
Date) over the principal balance in respect of the remaining REMIC 1
Interests other than the Class R-1 Interests. The Class 1-Support
Interest will accrue interest at a rate equal to the Weighted Average
Adjusted Net Mortgage Rate.
(5) The Class 1-P-1 and Class 1-P-2 Interests will not be entitled to any
interest, but will be entitled to 100% of any Prepayment Charges
collected on the Mortgage Loans. The Class 1-P-1 Interests will be
entitled to 100% of any Class P-1 Prepayment Charges and the Class 1-P-2
Interests will be entitled to 100% of any Class P-2 Prepayment Charges
paid on the Mortgage Loans.
(6) The Class R-1 Interest is the sole class of residual interest in REMIC 1.
It has no principal balance and pays no principal or interest.
REMIC 2
The REMIC 2 Interests will have the initial principal balances, Pass-Through
Rates and corresponding Classes of Certificates as set forth in the following
table:
Pass-
-----
Principal Through Corresponding Certificates
--------- ------- --------------------------
REMIC 2 Interests Balances Rate Classes
----------------- -------- ---- -------
Class 2-1-A-1A (1) (2) Class 1-A-1A
Class 2-1-A-1B (1) (2) Class 1-A-1B
Class 2-2-A-1A (1) (2) Class 2-A-1A
Class 2-2-A-1B (1) (2) Class 2-A-1B
Class 2-2-A-2 (1) (2) Class 2-A-2
Class 2-2-A-3A (1) (2) Class 2-A-3A
Class 2-2-A-3B (1) (2) Class 2-A-3B
Class 2-A-R (1) (2) Class A-R
Class 2-M-1 (1) (2) Class M-1
Class 2-M-2 (1) (2) Class M-2
Class 2-M-3 (1) (2) Class M-3
Class 2-M-4 (1) (2) Class M-4
Class 2-M-5 (1) (2) Class M-5
Class 2-M-6 (1) (2) Class M-6
Class 2-M-7 (1) (2) Class M-7
Class 2-Accrual (1) (2) N/A
Class 2-Swap IO (3) (3) N/A
Class 2-P-1 $100 (4) Class P-1
Class 2-P-2 $100 (4) Class P-2
Class R-2 (5) (5) N/A
6
------------------
(1) On each Distribution Date, Principal Amounts and Realized Losses will be
allocated to the REMIC 2 Interests in such a manner that, following such
allocations: (i) the principal balances of the REMIC 2 Interests (other
than the Class 2-Accrual, Class 2-Swap IO, Class 2-P-1, Class 2-P-2 and
Class R-2 Interests) will equal 50% of the Certificate Balance of their
Corresponding Certificates for such Distribution Date, (ii) the Class
2-Accrual Interest will have a principal balance equal to 50% of the
aggregate Stated Principal Balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount.
(2) The Pass-Through Rate will equal the weighted average of the Pass-Through
Rates of the REMIC 1 Interests (other than the Class R-1 Interests)
treating each "B" interest as capped at a rate equal to the product of
(i) 2 and (ii) LIBOR on each Distribution Date whose cardinal number
preceding such designation (e.g., -0, -0, -0) is not exceeded by the
ordinal number of the Distribution Date following the Closing Date (e.g.,
first, second, third) for such Distribution Date (the "REMIC Cap").
(3) For each Distribution Date, the REMIC 2-Swap IO shall be entitled to
receive from each "B" interest whose cardinal number preceding such
designation (e.g., -0, -0, -0) is not exceeded by the ordinal number of
the Distribution Date following the Closing Date (e.g., first, second,
third) for such Distribution Date the interest accruing on such interest
in excess of an amount of interest accruing on such interest's balance at
a rate equal to the excess of: (a) twice the Fixed Amount (as defined in
the Swap Contract) over (b) the product of (i) 2 and (ii) LIBOR.
(4) The Class 2-P-1 and Class 2-P-2 Interests will not be entitled to any
interest, but will be entitled to 100% of any Prepayment Charges
collected on the Mortgage Loans. The Class 2-P-1 Interests will be
entitled to 100% of any Class P-1 Prepayment Charges and the Class 2-P-2
Interests will be entitled to 100% of any Class P-2 Prepayment Charges
paid on the Mortgage Loans.
(5) The Class R-2 Interest is the sole class of residual interest in REMIC 2.
It has no principal balance and pays no principal or interest.
The Master REMIC
The following table sets forth the Class Designation, Initial Class
Certificate Balance, Pass-Through Rate, Minimum Denominations and Integral
Multiples in excess thereof in respect of the Certificates, each of which
(other than the Class A-R Certificates) is hereby designated a regular
interest in the Master REMIC, in which such Classes shall be issuable (except
that one Certificate of each Class of Certificates may be issued in a
different amount):
Initial Class Integral Multiples
Class Certificate Pass-Through Minimum in
Designation Balance Rate Denomination Excess of Minimum
----------- ------- ---- ------------ -----------------
Class A-1 $584,867,000 Floating(1) $25,000 $1,000
Class A-2 $64,985,000 Floating(1) $25,000 $1,000
Floating(1) $25,000 $1,000
Floating(1) $25,000 $1,000
Floating(1) $25,000 $1,000
7
Initial Class Integral Multiples
Class Certificate Pass-Through Minimum in
Designation Balance Rate Denomination Excess of Minimum
----------- ------- ---- ------------ -----------------
Floating(1) $25,000 $1,000
Floating(1) $25,000 $1,000
Class A-R $ 100 Floating(2) $100 N/A
Class M-1 $11,797,000 Floating(1) $25,000 $1,000
Class M-2 $4,857,000 Floating(1) $25,000 $1,000
Class M-3 $3,470,000 Floating(1) $25,000 $1,000
Class M-4 $3,470,000 Floating(1) $25,000 $1,000
Class M-5 $3,469,000 Floating(1) $25,000 $1,000
Class M-6 $3,470,000 Floating(1) $25,000 $1,000
Class M-7 $3,469,000 Floating(1) $25,000 $1,000
Class M-8 $3,470,000 Floating(1) $25,000 $1,000
Class M-9 $4,163,000 Floating(1) $25,000 $1,000
Class C (3) (3) N/A N/A
Class P-1 $100.00 (4) N/A N/A
Class P-2 $100.00 (5) N/A N/A
(1) The Pass-Through Rate for this Class of Certificates for any Interest
Accrual Period for any Distribution Date will be a per annum rate equal to the
least of (i) LIBOR for that Distribution Date plus the Pass-Through Margin for
that Class and that Interest Accrual Period, (ii) the Net Rate Cap for that
Distribution Date and (iii) 10.5%. Solely for federal income tax purposes, all
monies received by: (i) the Senior and Subordinated Certificates in excess of
the REMIC Cap, will be treated as a paid pursuant to a limited recourse
interest rate cap contract as provided in Section 8.11.
(2) The Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual Period related to each Distribution Date will be a per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans. The Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual Period related to the first Distribution Date is 6.1142% per annum.
The Class A-R Certificates will receive interest and principal pursuant to its
ownership of the Class R-1 Interests.
(3) For federal income tax purposes, the Class C Certificates will represent
three classes of regular interests issued by the Master REMIC, (i) a class
that does not accrue interest and has a principal balance equal to the
Overcollateralized Amount as of the Closing Date, (ii) a class that is
entitled to receive all interest accruals in respect of the Class 2-Swap IO
Interest, and (iii) a class that has a notional balance equal to the sum of
the principal balances of the REMIC 2 Regular Interests (excluding the Class
R-2, Class 2-Swap IO, Class 2-P-1 and Class 2-P-2 Interests), on the
immediately preceding Distribution Date, and has a pass through rate equal to
the excess of: (a) the REMIC Cap over (b) the product of 2 and the weighted
average of the pass through rates in respect of such Classes of REMIC 2
Interests, subjecting the Class 2-Accrual Interest to a cap equal to zero and
the other such Classes to a cap equal to the Pass-Through Rate in respect of
the Corresponding Certificate Class.
(4) The Class P-1 Certificates will not be entitled to any interest, but will
be entitled to 100% of any Class P-1 Prepayment Charges collected on the
Mortgage Loans. All amounts in respect of waived Class P-1 Prepayment Charges
paid by the Servicer to the Class P-1 Certificates pursuant to the second
8
paragraph of Section 3.21 will be treated as paid directly by the Servicer to
the Class P-1 Certificates and not as paid by or through any REMIC created
under this Agreement
(5) The Class P-2 Certificates will not be entitled to any interest, but will
be entitled to 100% of any Class P-2 Prepayment Charges paid on the Mortgage
Loans. All amounts in respect of waived Class P-2 Prepayment Charges paid by
the Servicer to the Class P-2 Certificates pursuant to the second paragraph of
Section 3.21 will be treated as paid directly by the Servicer to the Class P-2
Certificates and not as paid by or through any REMIC created under this
Agreement.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall--actual or potential (other
than for credit losses) to any REMIC regular interest.
For any purpose for which the Pass-Through Rates (other than in the
Master REMIC) are calculated, the interest rate on the Mortgage Loans shall be
appropriately adjusted to account for the difference between the monthly day
count convention of the Mortgage Loans and the monthly day count convention of
the regular interests issued by each of the REMICs. For purposes of
calculating the Pass-Through Rates for each of the interests issued by each
REMIC (other than the Master REMIC) created hereunder such rates shall be
adjusted to equal a monthly day count convention based on a 30 day month for
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
Set forth below are designations of Classes of Certificates to the categories
used in this Agreement:
Accretion Directed Certificates........ None.
Accrual Certificates................... None.
Book-Entry Certificates................ All Classes of Certificates other
than the Physical Certificates.
Class P Certificates................... Class P-1 and Class P-2 Certificates.
COFI Certificates...................... None.
Components............................. None.
Component Certificates................. None.
Delay Certificates..................... Class A-R Certificates.
ERISA-Restricted Certificates.......... The Private Certificates and
Residual Certificates; and
Certificates of any Class that does
not or no longer has a rating of
BBB- or its equivalent, or better,
from at least one Rating Agency.
LIBOR Certificates..................... The Senior Certificates (other than
the Class A-R Certificates) and
Subordinated Certificates.
Non-Delay Certificates................. All LIBOR Certificates.
Notional Amount Certificates........... None.
Notional Amount Components............. None.
Offered Certificates................... All Classes of Certificates other
than the Private Certificates.
Physical Certificates.................. Class A-R Certificates and Private
Certificates.
Planned Principal Classes.............. None.
9
Principal Only Certificates............ None.
Principal Only Components.............. None.
Private Certificates................... Class C and Class P Certificates.
Rating Agencies........................ Xxxxx'x, S&P and Fitch.
Regular Certificates................... All Classes of Certificates other
than the Class A-R Certificates.
Residual Certificate................... Class A-R Certificates.
Retained Certificates.................. None.
Senior Certificates.................... Class A-1, Class A-2 and Class A-R
Certificates.
Super Senior Certificates.............. Class A-1 Certificates.
Support Certificates................... Class A-2 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 and Class M-9
Certificates.
Targeted Principal Classes............. None.
Targeted Principal Component........... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall be
of no force or effect.
10
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate of that
Mortgage Loan (as of the Due Date in the month preceding the month in which
such Distribution Date occurs) less the Expense Fee Rate for that Mortgage
Loan.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan is subject to adjustment.
Advance: The payment required to be made by the Servicer with respect to
any Distribution Date pursuant to Section 4.01, the amount of any such payment
being equal to the aggregate of payments of principal and interest (net of the
Servicing Fee) on the Mortgage Loans that were due during the related Due
Period and not received as of the close of business on the related
Determination Date, together with an amount equivalent to interest on each REO
Property, net of any net income from such REO Property, less the aggregate
amount of any such delinquent payments that the Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of
a Person, directly or indirectly, whether through ownership of voting
securities, by contract, or otherwise and "controlling" and "controlled" shall
have meanings correlative to the foregoing. Affiliates also include any
entities consolidated with the requirements of generally accepted accounting
principles.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements.
11
Amount Held for Future Distribution: As to 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 last day of the related Prepayment Period and Liquidation
Proceeds and Subsequent Recoveries received in the month of such Distribution
Date and (ii) all Scheduled Payments due after the related Due Date.
Applied Realized Loss Amount: For any Distribution Date, the amount by
which the aggregate Class Certificate Balance of all LIBOR Certificates (after
all distributions of principal on such Distribution Date) exceeds the Pool
Principal Balance as of the Due Date in the month of such Distribution Date
(after giving effect to Principal Prepayments and Liquidation Proceeds
allocated to principal and Subsequent Recoveries received in the related
Prepayment Period).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinance Loan, the lesser of (a) the value of the Mortgaged
Property based upon the appraisal made at the time of the origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of
the origination of such Mortgage Loan; and (ii) with respect to a Refinance
Loan, the value of the Mortgaged Property based upon the appraisal made at the
time of the origination of such Refinance Loan.
Available Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date, including any Subsequent Recoveries, net of
the Amount Held for Future Distribution, net of Prepayment Charges and net of
amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i) - (viii), inclusive, of Section 3.09(a) and amounts permitted to
be withdrawn from the Distribution Account pursuant to clauses (i) - (ii),
inclusive, of Section 3.09(b), (b) the amount of the Advance, (c) in
connection with Defective Mortgage Loans, the aggregate of the Purchase Prices
and Substitution Adjustment Amounts deposited on the related Distribution
Account Deposit Date, and (d) any amount deposited on the related Distribution
Account Deposit Date pursuant to Section 3.10. The Holders of the Class P
Certificates will be entitled to all Prepayment Charges received on the
Mortgage Loans and such amounts will not be available for distribution to the
Holders of any other Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: Not applicable.
Bankruptcy Loss: Not applicable.
Bankruptcy Loss Coverage Amount: Not applicable.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the 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.
Carryover Reserve Fund: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 with a depository
institution in the name of the Trustee for the benefit of the
Certificateholders and designated "Deutsche Bank National Trust Company, in
trust for the registered
12
holders of IndyMac INDX Mortgage Loan Trust 2006-AR39, Mortgage Pass-Through
Certificates, Series 2006-AR39."
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 IndyMac INDX Mortgage Loan Trust 2006-AR39,
Mortgage Pass-Through Certificates, Series 2006-AR39."
Certificate Balance: With respect to any Certificate (other than the
Class C Certificates) at any date, the maximum dollar amount of principal to
which the Holder thereof is then entitled under this Agreement, such amount
being equal to the Denomination thereof (A) plus, with respect to the LIBOR
Certificates, any increase to the Certificate Balance of such Certificate
pursuant to Section 4.02 due to the receipt of Subsequent Recoveries and (B)
minus the sum of (i) all distributions of principal previously made with
respect to that Certificate and (ii) with respect to the LIBOR Certificates,
any Applied Realized Loss Amounts allocated to such Certificate on previous
Distribution Dates pursuant to Section 4.02 without duplication.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of the Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any of its rights
under this Agreement, it shall first have to provide evidence of its
beneficial ownership interest in a Certificate that is reasonably satisfactory
to the Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificate Registrar: Deutsche Bank National Trust Company and its
successors and, if a successor trustee is appointed under this Agreement, the
successor.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in
the name of the Depositor or any affiliate of the Depositor is not Outstanding
and the Percentage Interest evidenced thereby shall not be taken into account
in determining whether the requisite amount of Percentage Interests necessary
to effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action.
The Trustee is entitled to rely conclusively on a certification of the
Depositor or any affiliate of the Depositor in determining which Certificates
are registered in the name of an affiliate of the Depositor.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as set
forth in the Preliminary Statement.
13
Class Certificate Balance: For any Class (other than the Notional Amount
Certificates) as of any date of determination, the aggregate of the
Certificate Balances of all Certificates of the Class as of that date.
Class C Distributable Amount: As defined in the Preliminary Statement.
Class P-1 Prepayment Charges: All Hard Prepayment Charges that
constitute six months' interest on Principal Prepayments constituting 20% or
greater of the aggregate Stated Principal Balance of the Mortgage Loan as of
the Cut-off Date.
Class P-2 Prepayment Charges: All Soft Prepayment Charges and all Hard
Prepayment Charges other than Class P-1 Prepayment Charges.
Closing Date: December 28, 2006.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the first day of the prior month.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting the Cooperative Property and that governs the Cooperative
Property, which Cooperative Corporation must qualify as a Cooperative Housing
Corporation under section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Co-op Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the
State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn: Mortgage Administration-IN06Z2
(IndyMac MBS, Inc., IndyMac INDX Mortgage Loan Trust 2006-AR39, Mortgage
Pass-Through Certificates, Series 2006-AR39), and which is the address to
which notices to and correspondence with the Trustee should be directed. The
office of the Certificate Registrar for purposes of presentment of
certificates for registration of transfer, exchange or final payment is
located at DB Services Tennessee, 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Transfer Unit.
Corridor Counterparty: The Bank of New York.
14
Corridor Certificates: The LIBOR Certificates.
Corridor Contract: The interest rate corridor agreement between the
Supplemental Interest Trust and the Corridor Counterparty related to the
Corridor Certificates, a form of which is attached to this Agreement as
Exhibit P-2.
Cumulative Loss Trigger Event: With respect to a Distribution Date on or
after the Stepdown Date occurs if the aggregate amount of Realized Losses on
the Mortgage Loans from (and including) the Cut-off Date to (and including)
the related Due Date (reduced by the aggregate amount of Subsequent Recoveries
received from the Cut-off Date through the Prepayment Period related to that
Due Date) exceeds the applicable percentage, for such Distribution Date, of
the Cut-off Date Pool Principal Balance, as set forth below:
Distribution Date Percentage
January 2010 - December 2010..... 0.50% with respect to January 2010, plus an
additional 1/12th of 0.40% for each
month thereafter through December 2010
January 2011 - December 2011..... 0.90% with respect to January 2011, plus an
additional 1/12th of 0.35% for each
month thereafter through December 2011
January 2012 - December 2012..... 1.25% with respect to January 2012, plus an
additional 1/12th of 0.25% for each
month thereafter through December 2012
January 2013 and thereafter...... 1.50%
Current Interest: With respect to each Class of Offered Certificates and
each Distribution Date, interest accrued at the applicable Pass-Through Rate
for the applicable Interest Accrual Period on the Class Certificate Balance of
that Class, immediately prior to that Distribution Date.
Cut-off Date: December 1, 2006.
Cut-off Date Pool Principal Balance: $693,916,198.27.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
15
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the
form of Exhibit G-3.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which all or a portion of a related Mortgage File
is not delivered to the Trustee by the Closing Date. The Depositor shall
deliver the Mortgage Files to the Trustee:
(A) for at least 70% of the Mortgage Loans, not later than the Closing
Date, and
(B) for the remaining 30% of the Mortgage Loans, not later than five
Business Days following the Closing Date.
To the extent that the Seller is in possession of any Mortgage File for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage File to the
Trustee as provided in Section 2.01, the 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).
Delinquency Trigger Event: With respect to any Distribution Date on or
after the Stepdown Date, if the Rolling Sixty Day Delinquency Rate as of the
last day of the immediately preceding month equals or exceeds 40% of the
Senior Enhancement Percentage for that Distribution Date.
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment due
on a Due Date is not made by the close of business on the next scheduled Due
Date for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if such
monthly payment has not been received by the close of business on the
corresponding day of the month immediately succeeding the month in which such
monthly payment was due. The determination of whether a Mortgage Loan is "60
days Delinquent", "90 days Delinquent", etc. shall be made in a like manner.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its successor
in interest.
Depository: The initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered Holder of the
Book-Entry Certificates. The Depository shall at all times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC.
Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that
if the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
16
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the benefit of the Certificateholders and designated "Deutsche
Bank National Trust Company in trust for registered holders of IndyMac INDX
Mortgage Loan Trust 2006-AR39, Mortgage Pass-Through Certificates, Series
2006-AR39." 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 January 2007.
Due Date: For any Mortgage Loan and Distribution Date, the first day of
the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the
second day of the month preceding the month in which the Distribution Date
occurs and ending on the first day of the month in which the Distribution Date
occurs.
XXXXX: The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
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, or (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, or (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 the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
17
Excess Cashflow: With respect to any Distribution Date (i) the Interest
Remittance Amount remaining after the distribution to the Supplemental
Interest Reserve Fund and of interest to the Holders of the Certificates for
that Distribution Date pursuant to Section 4.02 (a) and (ii) any Principal
Distribution Amount for that Distribution Date remaining after distributions
of the principal to the Offered Certificates pursuant to Section 4.02 (b).
Excess Loss: Not applicable.
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)(iii),
over
(b) the sum of (i) the unpaid principal balance of the Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage Loan
became a Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage
Rate from the Due Date for which interest was last paid or advanced (and not
reimbursed) to Certificateholders up to the Due Date applicable to the
Distribution Date following the calendar month during which the liquidation
occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under the
Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, the Servicing Fee Rate.
Extra Principal Distribution Amount: For any Distribution Date, the
lesser of (1) the Overcollateralization Deficiency Amount and (2) the Excess
Cashflow available for payment pursuant to Section 4.02 (c)(i).
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any
of the Mortgage Loans.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b)
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac 2006-AR39, or any
other address Fitch furnishes to the Depositor and the Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
18
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person, or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer, if such
Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Fraud Loan: Not applicable.
Fraud Losses: Not applicable.
Fraud Loss Coverage Amount: Not applicable.
Fraud Loss Coverage Termination Date: Not applicable.
Gross Margin: With respect to each Mortgage Loan, the fixed percentage
set forth in the related Mortgage Note that is added to the Mortgage Index on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
Hard Prepayment Charges: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Charge Period, the Hard Prepayment
Charges with respect to each applicable Mortgage Loan so held by the Trust
Fund being identified in the Mortgage Loan Schedule.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: Not applicable.
Initial LIBOR Rate: 5.35% per annum.
Insurance Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in such
Insurance Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to the month
of such Distribution Date. The Delay Certificates will accrue interest on the
basis of a 360-day year consisting of twelve 30-day months. With respect to
each Class of Non-Delay Certificates and any Distribution Date, the period
commencing on the immediately preceding Distribution Date (or, in the case of
the first Distribution Date, the Closing Date) and ending on the day
immediately preceding that Distribution Date. Each Class of Non-Delay
Certificates will accrue interest on the basis of a 360-day year and the
actual number of days elapsed during the related Interest Accrual Period.
19
Interest Carry Forward Amount: With respect to each Class of LIBOR
Certificates and each Distribution Date, is the excess of (a) Current Interest
for that Class with respect to prior Distribution Dates, over (b) the amount
actually distributed to that Class with respect to interest on prior
Distribution Dates.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for a Class of LIBOR Certificates and (b) any Interest Accrual Period
for the COFI Certificates for which the applicable Index is LIBOR, the second
Business Day prior to the first day of such Interest Accrual Period.
Interest Rate: With respect to each REMIC 1 Interest, REMIC 2 Interest
or Master REMIC Interest, the applicable rate set forth or calculated in the
manner described in the Preliminary Statement.
Interest Remittance Amount: For any Distribution Date:
(a) the sum, without duplication, of:
(1) all interest on the Mortgage Loans due on the related
Due Date and received on or prior to the related Determination
Date, less the Servicing Fees,
(2) all interest on Principal Prepayments, other than
Prepayment Interest Excess,
(3) all Advances relating to interest,
(4) amounts paid by the Servicer in respect of Compensating
Interest, and
(5) Liquidation Proceeds received during the related
Prepayment Period (to the extent such Liquidation Proceeds relate
to interest), and
minus
(b) all Advances relating to interest and certain expenses
reimbursed since the prior Due Date.
Interest Settlement Rate: As defined in Section 4.07.
Item 1119 Party: The Depositor, the Seller, the Servicer, the Trustee,
the Swap Counterparty, the Corridor Counterparty, the Supplemental Interest
Trustee and any other material transaction party, as identified in Exhibit T,
as updated pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance and charged
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
20
LIBOR Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest Accrual Period.
Limited Exchange Act Reporting Obligations: The obligations of the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article 11 (except
Section 11.07(a)(i) and (ii)).
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, is the fraction whose numerator is the original principal
balance of the related Mortgage Loan at that date of determination and whose
denominator is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
Maximum Mortgage Rate: For each Mortgage Loan, the percentage set forth
in the related Mortgage Note as the lifetime maximum Mortgage Rate to which
such Mortgage Rate may be adjusted.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any
successor thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: For each Mortgage Loan, the percentage set forth
in the related Mortgage Note as the lifetime minimum Mortgage Rate to which
such Mortgage Rate may be adjusted.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
21
Moneyline Telerate Page 3750: The display page currently so designated
on the Moneyline Telerate Information Services, Inc. (or any page replacing
that page on that service for the purpose of displaying London inter-bank
offered rates of major banks).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.05.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Loan Monitoring Group, or any other address that
Moody's furnishes to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Index: One-Year CMT Index, Six-Month LIBOR Index or One-Year
LIBOR Index.
Mortgage Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant to this Agreement, as from time to time are held as a
part of the Trust Fund (including any REO Property), the Mortgage Loans so
held being identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in Schedule I
of Mortgage Loans included in the Trust Fund on that date. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address of the Mortgaged Property, including the
zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Gross Margin in effect as of the Cut-off Date;
(ix) the Maximum Mortgage Rate in effect as of the Cut-off Date;
(x) the Adjustment Date in effect as of the Cut-off Date;
(xi) a code indicating the Mortgage Index and when it is
determined;
22
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling, (b) a dwelling in a
PUD, (c) a condominium unit, (d) a two- to four-unit
residential property, or (e) a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender PMI
Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest premium
charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan;
(xxiv) the Minimum Mortgage Rate in effect as of the Cut-off Date;
(xxv) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan; and
(xxvi) the type of Prepayment Charges and the length of time
during which Prepayment Charges will be imposed on a
Mortgage Loan.
The schedule shall also set forth the total of the amounts described
under (v) above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of 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 (net of the interest premium for any Lender PMI Loan).
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
23
National Cost of Funds Index: The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of the Prepayment Interest Shortfalls
for such Distribution Date exceeds the Compensating Interest for such
Distribution Date.
Net Rate Cap: For each Distribution Date and the LIBOR Certificates, the
Weighted Average Adjusted Net Mortgage Rate for that Distribution Date.
Net Rate Carryover: For a Class of LIBOR Certificates on any
Distribution Date, the excess of:
(1) the amount of interest that Class would have accrued for that
Distribution Date had the Pass-Through Rate for that Class and the
related Interest Accrual Period not been calculated based on the Net
Rate Cap, over
(2) the amount of interest that Class accrued on that Distribution
Date based on the Net Rate Cap,
plus the unpaid portion of any excess from prior Distribution Dates (and
interest accrued thereon at the then applicable Pass-Through Rate, without
giving effect to the Net Rate Cap).
Net Swap Payment: With respect to the Swap Contract, any Distribution
Date and payment from the Supplemental Interest Trust to the Swap
Counterparty, the excess, if any, of the "Fixed Amounts" (as defined in the
Swap Contract) with respect to such Distribution Date over the "Floating
Amounts" (as defined in the Swap Contract) with respect to such Distribution
Date. With respect to the Swap Contract, any Distribution Date and payment by
the Swap Counterparty to the Supplemental Interest Trust, the excess, if any,
of the "Floating Amounts" with respect to such Distribution Date over the
"Fixed Amounts" with respect to such Distribution Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer, that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: Not applicable.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Notional Amount Components: As specified in the Preliminary Statement.
OC Floor: An amount equal to 0.35% of the Cut-off Date Pool Principal
Balance.
Offered Certificates: As specified in the Preliminary Statement.
24
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 or (iii) in the
case of any other Person, signed by an authorized officer of such Person.
One-Year CMT Index: The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(519) and most recently
available as of a day specified in the related Mortgage Note.
One-Year LIBOR Index: The average of the London interbank offered rates
for one-year U.S. dollar deposits in the London market, generally as set forth
in either The Wall Street Journal or some other source generally accepted in
the residential mortgage loan origination business and specified in the
related Mortgage Note, or, if such rate ceases to be published in The Wall
Street Journal or becomes unavailable for any reason, then based upon a new
index selected by the servicer, based on comparable information, in each case,
as most recently announced as of either 45 days prior to, or the first
Business Day of the month immediately preceding the month of, such Adjustment
Date.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact independent of the
Depositor and the Servicer, (ii) does not have any direct financial interest
in the Depositor or the Servicer or in any affiliate of either, and (iii) is
not connected with the Depositor or the Servicer as an officer, employee,
promoter, underwriter, trustee, partner, director, or person performing
similar functions. Otherwise, a written opinion of counsel who may be counsel
for the Depositor or the Servicer, including in-house counsel, reasonably
acceptable to the Trustee.
Optional Termination Date: As defined in Section 9.01.
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement
except:
(i) Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before
the Due Date.
25
Overcollateralization Deficiency Amount: For any Distribution Date
equals the amount, if any, by which the Overcollateralization Target Amount
exceeds the Overcollateralized Amount on that Distribution Date (after giving
effect to distributions of the Principal Remittance Amount on that
Distribution Date).
Overcollateralization Target Amount: With respect to any Distribution
Date, the OC Floor.
Overcollateralized Amount: For any Distribution Date is the amount, if
any, by which (x) the Pool Principal Balance as of the Due Date in the month
of that Distribution Date (after giving effect to Principal Prepayments, the
principal portion of any Liquidation Proceeds and any Subsequent Recoveries
received in the related Prepayment Period) exceeds (y) the aggregate Class
Certificate Balance of the Offered Certificates (after giving effect to
distributions of the Principal Distribution Amount (excluding the Extra
Principal Distribution Amount) on that Distribution Date).
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: With respect to the Interest Accrual Period for any
Distribution Date and Class of LIBOR Certificates, the per annum rate
indicated in the following table:
Class of LIBOR Certificates Pass-Through Margin
--------------------------- -------------------
(1) (2)
Class A-1..................... 0.180% 0.360%
Class A-2..................... 0.230% 0.460%
Class M-1..................... 0.300% 0.450%
Class M-2..................... 0.330% 0.495%
Class M-3..................... 0.350% 0.525%
Class M-4..................... 0.400% 0.600%
Class M-5..................... 0.450% 0.675%
Class M-6..................... 0.500% 0.750%
Class M-7..................... 1.100% 1.650%
Class M-8..................... 1.250% 1.875%
Class M-9..................... 1.250% 1.875%
------------------
(1) For the Interest Accrual Period related to any Distribution Date
occurring on or prior to the first possible Optional Termination Date.
(2) For the Interest Accrual Period related to any Distribution Date
occurring after the first possible Optional Termination Date.
Pass-Through Rate: For each Class of Certificates, the per annum rate
set forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class,
the percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of
the Denominations of all Certificates of the same Class. With respect to the
Class C, Class P and Class A-R Certificates, the portion of the Class
evidenced thereby, expressed as a percentage, as stated on the face of such
Certificate.
26
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by the
full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of
the United States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or any lower rating that will not result in
the downgrading, qualification or withdrawal of the ratings then assigned to
the Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or
any lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if
Xxxxx'x is not a Rating Agency) are then rated one of the two highest
long-term and the highest short-term ratings of each Rating Agency for the
securities, or any lower rating that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any
bank or trust company or savings institution to the extent that the deposits
are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above; provided that such repurchase obligation would be accounted for as a
financing arrangement under generally accepted accounting principles;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating
that will not result in the downgrading, qualification or withdrawal of the
ratings then assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency and that have a maturity
date occurring no more than 365 days from their date of issuance;
27
(ix) units of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating Agency and has
not rated the portfolio, the highest rating assigned by Moody's and (ii) if
S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing delivered by each
Rating Agency.
No Permitted Investment may (i) evidence the right to receive
interest-only payments with respect to the obligations underlying the
instrument, (ii) be sold or disposed of before its maturity or (iii) be any
obligation of the 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 in accordance with Financial Accounting Standard
140, paragraph 35c(6) in effect as of the Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated
business taxable income) on any excess inclusions (as defined in section
860E(c)(1) of the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the
Code,
(vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based on an
Opinion of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate to the Person may cause any REMIC to fail to qualify as a REMIC at
any time that the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Plan: An "employee benefit plan" as defined in section 3(3) of ERISA
that is subject to Title I of ERISA, a "plan" as defined in section 4975 of
the Code that is subject to section 4975 of the Code, or any
28
Person investing on behalf of or with plan assets (as defined in 29 CFR
ss.2510.3-101 or otherwise under ERISA) of such an employee benefit plan or
plan.
Planned Balance: Not applicable.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Principal Balance: The aggregate Stated Principal Balances of the
Mortgage Loans.
Prepayment Charge: A Hard Prepayment Charge or Soft Prepayment Charge,
as the context may require.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
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 the month of the Cut-off Date, all amounts
paid by the related Mortgagor in respect of interest on such Principal
Prepayment. All Prepayment Interest Excess shall be retained by the 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 the Cut-off Date) and on or before the
last day of the month preceding the month of such Distribution Date, the
amount, if any, by which one month's interest at the related Mortgage Rate,
net of the Servicing Fee Rate, on such Principal Prepayment exceeds the amount
of interest paid in connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of the month immediately prior to the
month of such Distribution Date (or, in the case of the first Distribution
Date, from the Cut-off Date) and to and including the 15th day of the month of
such Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage
Loan.
Principal Balance Schedules: Not applicable.
Principal Distribution Amount: With respect to each Distribution Date,
an amount equal to (A) the sum of (1) the Principal Remittance Amount for that
Distribution Date, less any portion of such amount used to cover any payment
due to the Swap Counterparty under the Swap Contract with respect to that
Distribution Date and (2) the Extra Principal Distribution Amount for that
Distribution Date.
Principal Only Certificates: As specified in the Preliminary Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the principal portion of the Purchase Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received in advance
of its scheduled Due Date and is not accompanied by an amount
29
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, an amount equal
to:
(a) the sum, without duplication, of:
(1) all principal collected or advanced on the Mortgage
Loans with respect to the related Due Date,
(2) Principal Prepayments collected during the related
Prepayment Period,
(3) the Stated Principal Balance of each Mortgage Loan that
was repurchased by the Seller or purchased by the Servicer with
respect to that Distribution Date,
(4) any Substitution Adjustment Amounts in respect of the
Mortgage Loans in that Loan Group, and
(5) all Liquidation Proceeds (to the extent such Liquidation
Proceeds related to principal) and all Subsequent Recoveries
received during the related Prepayment Period
minus
(b) all non-recoverable Advances relating to principal on the
Mortgage Loans and certain expenses reimbursed since the prior Due Date.
Private Certificates: As specified in the Preliminary Statement.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated December 28,
2006, relating to the Offered Certificates, and any supplement to the
Prospectus Supplement.
PUD: Planned Unit Development.
Purchase Price: For any Mortgage Loan required to be purchased by the
Seller pursuant to Section 2.02 or 2.03 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 and unpaid 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
30
(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 purchased 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.
Qualified Insurer: A mortgage guaranty insurance company duly qualified
as such under the laws of the state of its principal place of business and
each state having jurisdiction over the insurer in connection with the
insurance policy issued by the insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it, approved
as a FNMA- or FHLMC-approved mortgage insurer or having a claims paying
ability rating of at least "AA" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor and identified as a
"Rating Agency" in the Underwriters' Exemption, notice of which designation
shall be given to the Trustee. References to a given rating or rating category
of a Rating Agency means the rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Certificateholders up to the Due Date in the month in which Liquidation
Proceeds are required to be distributed on the Stated Principal Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan that has become the subject of a Deficient Valuation, if
the principal amount due under the related Mortgage Note has been reduced, the
difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of the
Mortgage Loan as reduced by the Deficient Valuation. With respect to each
Mortgage Loan which has become the subject of a Debt Service Reduction and any
Distribution Date, the amount, if any, by which the principal portion of the
related Scheduled Payment has been reduced. To the extent the Servicer
receives Subsequent Recoveries with respect to any Mortgage Loan, the amount
of the Realized Loss with respect to that Mortgage Loan will be reduced by
such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement between
the Cooperative Corporation and the originator of the Mortgage Loan that
establishes the rights of the originator in the Cooperative Property.
Record Date: With respect to any Distribution Date and any Definitive
Certificate and the Delay Certificates, the close of business on the last
Business Day of the month preceding the month of that Distribution Date. With
respect to any Distribution Date and the LIBOR Certificates as long as they
are Book-Entry Certificates, the Business Day immediately prior to such
Distribution Date.
31
Reference Bank: As defined in Section 4.08.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.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 provided by the Commission or
its staff from time to time.
Relief Act: The Servicemembers Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning
of section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and in
any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of
the agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is
not a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Servicer only, if the Servicer becomes aware of
any bankruptcy or receivership with respect to the Seller, the Depositor, the
Servicer, the Trustee, the Supplemental Interest Trustee, the Corridor
Counterparty, the Swap Counterparty, any enhancement or support provider
contemplated by Items 1114(b) or 1115 of Regulation AB, or any other material
party contemplated by Item 1101(d)(1) of Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor only,
the occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
32
(f) the resignation, removal, replacement, substitution of the Servicer
or the Trustee;
(g) with respect to the Servicer only, if the Servicer becomes aware
that (i) any material enhancement or support specified in Item 1114(a)(1)
through (3) of Regulation AB or Item 1115 of Regulation AB that was previously
applicable regarding one or more Classes of the Certificates has terminated
other than by expiration of the contract on its stated termination date or as
a result of all parties completing their obligations under such agreement;
(ii) any material enhancement specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB has been added with respect to one
or more Classes of the Certificates; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation
AB or Item 1115 of Regulation AB with respect to one or more Classes of the
Certificates has been materially amended or modified; and
(h) with respect to the Trustee, the Servicer and the Depositor only, a
required distribution to Holders of the Certificates is not made as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the Trustee,
any Subcontractor determined by such Person pursuant to Section 11.08(b) to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
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, any Managing
Director, any Director, Vice President, any Assistant Vice President, any
Associate, any Assistant Secretary, any Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers who at such time shall be officers to whom,
with respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 4.02(e).
Rolling Sixty Day Delinquency Rate: With respect to any Distribution
Date, an amount equal to the average of the Sixty Day Delinquency Rates for
that Distribution Date and the two immediately preceding Distribution Dates.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
Xxxxxxxx-Xxxxx Certification: As defined in Section 11.05.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
If S&P is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to S&P shall be Standard
& Poor's, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance Monitoring, or any
other address that S&P furnishes to the Depositor and the Servicer.
33
Scheduled Balance: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan
which, unless otherwise specified herein, shall give effect to any related
Debt Service Reduction and any Deficient Valuation that affects the amount of
the monthly payment due on such Mortgage Loan.
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the originator of the related Mortgage
Note that defines the security interest in the Co-op Shares and the related
Proprietary Lease.
Seller: 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 Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: Not applicable.
Senior Enhancement Percentage: With respect to a Distribution Date on
or after the Stepdown Date a fraction (expressed as a percentage):
(1) the numerator of which is sum of the aggregate Class
Certificate Balance of the Subordinated Certificates and the
Overcollateralized Amount (which, for purposes of this definition only,
shall not be less than zero) and
(2) the denominator of which is the Pool Principal Balance as of
the Due Date in the prior month (after giving effect to Principal
Prepayments in the Prepayment Period related to that prior Due Date).
Senior Principal Distribution Amount: For any Distribution Date, an
amount equal to the amount, if any, by which (x) the aggregate Class
Certificate Balance of the Senior Certificates immediately prior to that
Distribution Date exceeds (y) the Senior Target Amount.
Senior Target Amount: For any Distribution Date, (x) after the Stepdown
Date and if a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) 87.30% and (2) the Pool Principal Balance as of the Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) and (b) the amount, if
any, by which (1) the Pool Principal Balance as of the Due Date in the month
of that Distribution Date (after giving effect to Principal Prepayments
received in the related Prepayment Period) exceeds (2) the OC Floor, and (y)
for any Distribution Date after the Stepdown Date on which a Trigger Event is
in effect, the Senior Target Amount for the immediately preceding Distribution
Date.
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.
34
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
(a) the preservation, restoration, and protection of a Mortgaged
Property,
(b) expenses reimbursable to the Servicer pursuant to Section 3.12
and any enforcement or judicial proceedings, including foreclosures,
(c) the maintenance and liquidation of any REO Property,
(d) compliance with the obligations under Section 3.10, and
(e) 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 this clause (e),
only costs and expenses incurred in connection with the performance of
activities generally considered to be outside the scope of customary
servicing or master servicing duties shall be treated as Servicing
Advances.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d)
of Regulation AB.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in
Section 3.15.
Servicing Fee Rate: For each Mortgage Loan, 0.375% 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.
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.
Shift Percentage: Not applicable.
Six-Month LIBOR Index: The average of the London interbank offered rates
for six month U.S. dollar deposits in the London market, generally as set
forth in either The Wall Street Journal or some other source generally
accepted in the residential mortgage loan origination business and specified
in the related Mortgage Note or, if such rate ceases to be published in The
Wall Street Journal or becomes unavailable for any reason, then based upon a
new index selected by the Servicer, based on comparable information, in each
case, as most recently announced as of either 45 days prior to, or the first
Business Day of the month immediately preceding the month of, such Adjustment
Date.
Sixty-Day Delinquency Rate: With respect to any Distribution Date on or
after the Stepdown Date, a fraction, expressed as a percentage, the numerator
of which is the aggregate Stated Principal Balance of all Mortgage Loans 60 or
more days delinquent as of the close of business on the last day of the
calendar month preceding such Distribution Date (including Mortgage Loans in
foreclosure,
35
bankruptcy and REO Properties) and the denominator of which is the aggregate
Stated Principal Balance for such Distribution Date of the Mortgage Loans as
of the related Due Date (after giving effect to Principal Prepayments, the
principal portion of any Liquidation Proceeds and any Subsequent Recoveries
received in the related Prepayment Period).
Soft Prepayment Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Charge Period other than as a
result of selling the Mortgaged Property, the Soft Prepayment Charges with
respect to each applicable Mortgage Loan so held by the Trust Fund being
identified in the Mortgage Loan Schedule.
Special Hazard Coverage Termination Date: Not applicable.
Special Hazard Loss: Not applicable.
Special Hazard Loss Coverage Amount: Not applicable.
Special Hazard Mortgage Loan: Not applicable.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage Loan as of such Due Date, as
specified in the amortization schedule at the time relating thereto (before
any adjustment to such amortization schedule by reason of any moratorium or
similar waiver or grace period) after giving effect to the sum of: (i) the
payment of principal due on such Due Date and irrespective of any delinquency
in payment by the related Mortgagor and (ii) any Liquidation Proceeds
allocable to principal received in the prior calendar month and any Principal
Prepayments received through the last day of the related Prepayment Period, in
each case, with respect to such Mortgage Loan.
Stepdown Date: The earlier to occur of (1) the first Distribution Date
after the Distribution Date on which the aggregate Class Certificate Balance
of the Senior Certificates is reduced to zero and (2) the later to occur of
(x) the Distribution Date in January 2010 and (y) the first Distribution Date
on which the fraction, expressed as a percentage, the numerator of which is
the sum of aggregate Class Certificate Balance of the Subordinated
Certificates and the Overcollateralized Amount, if any, and the denominator of
which is the Pool Principal Balance as of the Due Date in the prior month
(after giving effect to Principal Prepayments in the Prepayment Period related
to that prior Due Date) exceeds or equals 12.70%.
Stepdown Target Subordination Percentage: For any Class of Subordinated
Certificates and any Distribution Date on and after the Stepdown Date, the
respective percentages indicated in the following table:
Stepdown Target
Subordination
Percentage
--------------
Class M-1.............. 9.30%
Class M-2.............. 7.90%
Class M-3.............. 6.90%
Class M-4.............. 5.90%
Class M-5.............. 4.90%
36
Class M-6.............. 3.90%
Class M-7.............. 2.90%
Class M-8.............. 1.90%
Class M-9.............. 0.70%
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to the Mortgage Loans under the direction or
authority of the Servicer or the Trustee, as the case may be.
Subordinated Certificates: As specified in the Preliminary Statement.
Subordinated Class Principal Distribution Target Amount: For any Class
of Subordinated Certificates and Distribution Date will equal the excess of:
(1) the sum of: (a) the aggregate Class Certificate Balance of the
Senior Certificates (after taking into account the distribution of the Senior
Principal Distribution Amount for that Distribution Date), (b) the aggregate
Class Certificate Balance of any Class(es) of Subordinated Certificates that
are senior to the subject Class (in each case, after taking into account
distribution of the Subordinated Class Principal Distribution Target Amount(s)
for such more senior Class(es) of Certificates for such Distribution Date),
and (c) the Class Certificate Balance of the subject Class of Subordinated
Certificates immediately prior to such Distribution Date over
(2) the lesser of (a) the product of (x) 100% minus the applicable
Stepdown Target Subordination Percentage for the subject Class of Certificates
and (y) the Pool Principal Balance for that Distribution Date and (b) the Pool
Principal Balance for that Distribution Date minus the OC Floor;
provided, however, that if such Class of Subordinated Certificates is the only
Class of Subordinated Certificates outstanding on such Distribution Date, that
Class will be entitled to receive the entire remaining Principal Distribution
Amount until its Class Certificate Balance is reduced to zero.
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 (unless the amount of any shortfall is deposited by
the Seller in the Certificate Account and held for distribution to the
Certificateholders on the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per annum
higher than the Deleted Mortgage Loan;
(iii) have a Maximum Mortgage Rate not more than 1% per annum higher
than and not lower than the Maximum Mortgage Rate of the Deleted Mortgage
Loan,
37
(iv) have the same Mortgage Index and interval between Adjustment Dates
as the Deleted Mortgage Loan and a Gross Margin not more than 1% per annum
higher than, and not lower than that of the Deleted Mortgage Loan;
(vi) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to maturity no more than one year greater
than (and not more than one year less than) that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(ix) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Supplemental Interest Reserve Fund: The separate Eligible Account
created and maintained by the Supplemental Interest Trustee pursuant to
Section 3.06(f) in the name of the Supplemental Interest Trustee for the
benefit of the Holders of the LIBOR Certificates and designated "Deutsche Bank
National Trust Company in trust for the registered Holders of IndyMac INDX
Mortgage Loan Trust 2006-AR39, Mortgage Pass-Through Certificates, Series
2006-AR39. Funds in the Supplemental Interest Reserve Fund shall be held in
trust for the Holders of the LIBOR Certificates for the uses and purposes set
forth in this Agreement. The Supplemental Interest Reserve Fund will not be an
asset of any REMIC.
Supplemental Interest Trust: The trust fund established pursuant to
Section 4.08(b).
Supplemental Interest Trustee: Deutsche Bank National Trust Company, not
in its individual capacity, but solely in its capacity as trustee for the
benefit of the Holders of the Corridor Certificates under this Agreement, and
any successor thereto, and any corporation or national banking association
resulting from or surviving any consolidation or merger to which it or its
successors may be a party and any successor trustee as may from time to time
be serving as successor trustee under this Agreement.
Suspension Notification: Notification to the Commission of the
suspension of the Trust Fund's obligation to file reports pursuant to Section
15(d) of the Exchange Act.
Swap Certificates: The LIBOR Certificates.
Swap Contract: With respect to the LIBOR Certificates, the transaction
evidenced by the related Confirmation, a form of which is attached to this
Agreement as Exhibit P-1.
Swap Contract Termination Date: The Distribution Date in December 2012.
Swap Counterparty: The Bank of New York.
Swap Counterparty Trigger Event: A Swap Termination Payment that is
triggered upon (i) an "Event of Default" under the Swap Contract with respect
to which the Swap Counterparty is the sole `Defaulting Party" (as defined in
the Swap Contract) or (ii) a "Termination Event" or "Additional Termination
Event" under the Swap Contract with respect to which the Swap Counterparty is
the sole "Affected Party" (as defined in the Swap Contract).
38
Swap Report: The report to be delivered by the Determination Date prior
to each Distribution Date by the Swap Counterparty to the Supplemental
Interest Trustee containing the amount of any Net Swap Payment payable by the
Supplemental Interest Trust or the Swap Counterparty to the other party, as
the case may be, with respect to the Swap Contract for that Distribution Date.
39
Swap Table: The table set forth below:
Month of
Distribution Swap Contract
Date Notional Balance ($)
----------------- --------------------
January 2007 .... 659,220,388.36
February 2007 ... 633,855,165.62
March 2007 ...... 609,465,693.68
April 2007 ...... 586,014,445.28
May 2007 ........ 563,465,336.20
June 2007 ....... 541,783,669.77
July 2007 ....... 520,936,083.52
August 2007 ..... 500,890,497.91
September 2007 .. 481,616,066.92
October 2007 .... 463,083,130.75
November 2007 ... 445,263,170.13
December 2007 ... 428,128,762.47
January 2008 .... 411,653,539.71
February 2008 ... 395,812,147.80
March 2008 ...... 380,580,207.66
April 2008 ...... 365,934,277.74
May 2008 ........ 351,851,817.96
June 2008 ....... 338,311,155.02
July 2008 ....... 325,291,449.11
August 2008 ..... 312,772,661.86
September 2008 .. 300,735,525.48
October 2008 .... 289,161,513.20
November 2008 ... 278,032,810.72
December 2008 ... 267,332,288.84
January 2009 .... 257,043,477.13
February 2009 ... 247,150,538.56
March 2009 ...... 237,638,245.17
April 2009 ...... 228,491,954.67
May 2009 ........ 219,697,587.88
June 2009 ....... 211,241,607.09
July 2009 ....... 203,110,995.27
August 2009 ..... 195,293,235.99
September 2009 .. 187,776,294.24
October 2009 .... 180,548,597.85
November 2009 ... 173,599,019.73
December 2009 ... 166,916,860.77
January 2010 .... 143,597,956.15
February 2010 ... 138,070,461.76
March 2010 ...... 132,755,671.47
April 2010 ...... 127,645,402.32
May 2010 ........ 122,731,786.09
June 2010 ....... 118,007,257.21
July 2010 ....... 113,464,541.10
August 2010 ..... 109,096,642.96
September 2010 .. 104,896,837.07
October 2010 .... 100,858,656.39
November 2010 ... 96,975,882.62
December 2010 ... 93,235,697.88
January 2011 .... 89,646,293.30
February 2011 ... 86,195,029.33
March 2011 ...... 82,876,591.05
40
Month of
Distribution Swap Contract
Date Notional Balance ($)
----------------- --------------------
April 2011 ...... 79,685,867.91
May 2011 ........ 76,617,946.01
June 2011 ....... 73,612,911.79
July 2011 ....... 70,619,258.01
August 2011 ..... 67,071,369.48
September 2011 .. 63,371,209.07
October 2011 .... 60,120,874.18
November 2011 ... 48,034,210.86
December 2011 ... 30,280,822.32
January 2012
and thereafter .. 0.00
Swap Termination Payment : The payment payable to either party under a
Swap Contract due to an early termination of such Swap Contract.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary Statement.
Transaction Documents: This Agreement, the Swap Contract, the Corridor
Contract and any other document or agreement entered into in connection with
the Trust Fund, the Certificates or the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to a Distribution Date on or after the
Stepdown Date either a Delinquency Trigger Event is in effect with respect to
that Distribution Date or a Cumulative Loss Trigger Event is in effect with
respect to that Distribution Date.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the Cut-off Date, other than amounts due on the Mortgage Loans by the
Cut-off Date;
(ii) the Certificate Account, the Distribution Account, the Carryover
Reserve Fund and all amounts deposited therein pursuant to this Agreement
(including amounts received from the Seller on the Closing Date that will be
deposited by the Trustee in the Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan; and
(v) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and, if
a successor trustee is appointed under this Agreement, the successor.
41
The terms "United States," "State," and "International Organization"
have the meanings in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
UCC: The Uniform Commercial Code for the State of New York.
Underwriter: Banc of America Securities LLC.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67
Fed. Reg. 54487 (2002) (or any successor thereto), or any substantially
similar administrative exemption granted by the U.S. Department of Labor.
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia;
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the United
States or of any state thereof, including, for this purpose, the District of
Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to
be U.S. Persons.
Unpaid Realized Loss Amount: For any Class of LIBOR Certificates, (x)
the portion of the aggregate Applied Realized Loss Amount previously allocated
to that Class remaining unpaid from prior Distribution Dates minus (y) any
increase in the Class Certificate Balance of that Class due to the allocation
of Subsequent Recoveries to the Class Certificate Balance of that Class.
U.S.A. Patriot Act: The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to the Holders
of the Class A-R 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 the respective Certificates on that date.
Weighted Average Adjusted Net Mortgage Rate: For any Distribution Date,
the average of the Adjusted Net Mortgage Rate of each Mortgage Loan, weighted
on the basis of its Stated Principal Balance as of the Due Date in the prior
month (after giving effect to Principal Prepayments in the Prepayment Period
related to such prior Due Date).
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Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to
this Agreement as a whole and not to any particular article, section, exhibit,
or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or any other
changes that may have occurred since the document, statute, rule, or
regulation came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under
this Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or
B or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any [of a thing]" is any of it. A reference to the plural of
anything as to which there could be either one or more than one does not imply
the existence of more than one (for instance, the phrase "the obligors on a
note" means "the obligor or obligors on a note"). "Until [something occurs]"
does not imply that it must occur, and will not be modified by the word
"unless." The word "due" and the word "payable" are each used in the sense
that the stated time for payment has passed. The word "accrued" is used in its
accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may 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.
43
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "by." The words "preceding," "following," and words of similar import,
mean immediately preceding or following. References to a month or a year refer
to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
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ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) 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 received or receivable by the Seller on each Mortgage Loan after the
Cut-off Date and all interest and principal payments on each Mortgage Loan
received before the Cut-off Date for installments of interest and principal
due after the Cut-off Date but not including payments of principal and
interest due by the 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 Delay Delivery Mortgage Loans, such delivery may take place
within five 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. With respect to any Mortgage Loan that does not have a
first payment date on or before the Due Date in the month of the first
Distribution Date, the Seller shall deposit into the Distribution Account on
the first Distribution Account Deposit Date an amount equal to one month's
interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal
Balance of such Mortgage Loan. On the Closing Date the Depositor shall also
deposit or shall cause to be deposited $1,000 into the Carryover Reserve Fund
and $200 into the Certificate Account.
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby (i) 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 Trustee to execute the Swap Contract and the Corridor Contract.
(c) In connection with the transfer and assignment of each Mortgage
Loan, the Depositor has delivered (or, in the case of the Delay Delivery
Mortgage Loans, will deliver to the Trustee within the time periods specified
in the definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all intervening
endorsements showing a complete chain of endorsement from the originator
to the Person endorsing the Mortgage Note (each endorsement being
sufficient to transfer all interest of the party so endorsing, as
noteholder or assignee thereof, in that Mortgage Note) or a lost note
affidavit for any Lost Mortgage Note from the Seller stating that the
original Mortgage Note was lost or destroyed, together with a copy of
the Mortgage Note.
(ii) except as provided below and for each Mortgage Loan that is
not a MERS Mortgage Loan, the original recorded Mortgage or a copy of
such Mortgage certified by the 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 the applicable notary) and in
the case of each MERS Mortgage Loan, the original Mortgage, noting the
presence of the MIN of the Mortgage Loans
45
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 a 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 the mortgage (each
assignment, when duly and validly completed, to be in recordable form
and sufficient to effect the assignment of and transfer to its assignee
of the Mortgage to which the assignment relates). If the related
Mortgage has not been returned from the applicable public recording
office, the assignment of the Mortgage may exclude the information to be
provided by the recording office. The assignment of Mortgage need not be
delivered in the case of a Mortgage for which the related Mortgage
Property is located in the Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders.
(vi) The originals of the following documents for each Cooperative
Loan:
(A) the Co-op Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been filed in all places
required to perfect the Seller's interest in the Co-op Shares and the
Proprietary Lease with evidence of recording on it; and
(F) executed UCC-3 financing statements or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation). If in connection with any Mortgage Loan the
Depositor cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its
riders).
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(R) 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
46
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R)
System to identify the series of the Certificates issued in connection with
such Mortgage Loans. The 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 of this Agreement because such document or documents have not
been returned from the applicable public recording office in the case of
clause (ii) or (iii) above, or because the title policy has not been delivered
to either the Servicer or the Depositor by the applicable title insurer in the
case of clause (v) above, then the Depositor shall promptly deliver to the
Trustee, in the case of clause (ii) or (iii) above, the original Mortgage or
the interim assignment, as the case may be, with evidence of recording
indicated on when it is received from the public recording office, or a copy
of it, certified, if appropriate, by the relevant recording office and in the
case of clause (v) above, the original or a copy of a written commitment or
interim binder or preliminary report of title issued by the title insurance or
escrow company, with the original or duplicate copy thereof to be delivered to
the Trustee upon receipt thereof. The delivery of the original Mortgage Loan
and each interim assignment or a copy of them, certified, if appropriate, by
the relevant recording office, shall not be made later than one year following
the Closing Date, or, in the case of clause (v) above, later than 120 days
following the Closing Date. If the Depositor is unable to deliver each
Mortgage by that date and each interim assignment because any documents have
not been returned by the appropriate recording office, or, in the case of each
interim assignment, because the related Mortgage has not been returned by the
appropriate recording office, the Depositor shall deliver the documents to the
Trustee as promptly as possible upon their receipt and, in any event, within
720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the 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.
The Trustee need not record any assignment that relates to a Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which are
located in California or (b) in any other jurisdiction (including Puerto Rico)
under the laws of which, as evidenced by an Opinion of Counsel delivered by
the
47
Seller (at the Seller's expense) to the Trustee, recording the assignment is
not necessary to protect the Trustee's and the Certificateholders' interest in
the related Mortgage Loan. The Seller shall deliver such Opinion of Counsel
within 90 days of the Closing Date.
If any Mortgage Loans have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required pursuant
to this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section 2.03 (treating each such Delay Delivery Mortgage Loan as a
Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan,
but rather 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 Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such
period in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans to the
Depositor as a sale for all tax, accounting, and regulatory purposes.
(e) The Depositor and the Trustee hereto agree and understand that it is
not intended that any Mortgage Loan be included in the Trust Fund that is (i)
a "High-Cost Home Loan" as defined in the New Jersey Ownership Act effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a "High-Cost Home
Loan" as defined in the Massachusetts Predatory Home Loan Practices Act or
(iv) a "High-Cost Home Loan" as defined by the Indiana High Cost Home Loan Law
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
48
such Initial Certification, the Trustee acknowledges that such documents
appear regular on their face and relate to such Mortgage Loans. The Trustee
shall be under no duty or obligation to inspect, review or examine said
documents, instruments, certificates or other papers to determine that the
same are genuine, enforceable or appropriate for the represented purpose or
that they have actually been recorded in the real estate records or that they
are other than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery Certification with
respect to the Mortgage Loans substantially in the form of Exhibit G-3, with
any applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer and the Seller a Final Certification with respect to
the Mortgage Loans in the form of Exhibit H-1, with any applicable exceptions
noted thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii)
any assignment is in recordable form or is sufficient to effect the assignment
of and transfer to the assignee thereof under the mortgage to which the
assignment relates. The Seller shall promptly correct any defect that
materially and adversely affects the interests of the Certificateholders
within 90 days from the date it was so notified of the defect and, if the
Seller does not correct the defect within that period, the Seller shall either
(a) substitute for the related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be accomplished in the pursuant Section 2.03, or (b)
purchase the Mortgage Loan at its Purchase Price from the Trustee within 90
days from the date the 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 90 days thereafter until the related Mortgage Loan is returned
to the Trustee. Any substitution pursuant to (a) above or purchase pursuant to
(b) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel, 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
49
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(R) System in accordance
with MERS' rules and regulations or (ii) cause MERS to designate on the
MERS(R) 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 set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of any other documents or instruments constituting the
Mortgage File that come into the possession of the 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, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the representations and
warranties in Schedule III, and by this reference incorporated in this
Agreement, to the Depositor and the Trustee, as of the Closing Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, the party discovering such breach shall give prompt notice thereof to
the other parties. Any breach of representations and warranties under clauses
(28) and (39) of Schedule III shall be deemed to affect materially and
adversely the interests of the Certificateholders in the affected Mortgage
Loans. The Seller covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) which materially
and adversely affects the interests of the Certificateholders in any Mortgage
Loan, it shall cure such breach in all material respects, and if such breach
is not so cured, shall, (i) if the 90-day period expires before the second
anniversary of the Closing Date, remove the Mortgage Loan (a "Deleted Mortgage
Loan") from the Trust Fund and substitute in its place a Substitute Mortgage
Loan, in accordance with this Section 2.03; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below. Any substitution pursuant to (i) above shall not be
effected before the delivery to the Trustee of the Opinion of Counsel, 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 such other
documents and agreements as are required by Section 2.01, with the Mortgage
50
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of
the Trust Fund and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the monthly payment due on any Deleted
Mortgage Loan for such month and thereafter the Seller shall be entitled to
retain all amounts received in respect of such 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 (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an amount equal
to the aggregate of any unreimbursed Advances and Servicer Advances with
respect to such Deleted Mortgage Loans shall be deposited into the Certificate
Account by the 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 and receipt of a Request for Release in the form of Exhibit N, the
Trustee shall release the related Mortgage File held for the benefit of the
Certificateholders to such Person, and the Trustee shall execute and deliver
at such Person's direction such instruments of transfer or assignment prepared
by such Person, in each case without recourse, as shall be necessary to
transfer title from the Trustee. The obligation under this Agreement of any
Person to cure, repurchase, or replace any Mortgage Loan as to which a breach
has occurred and is continuing shall constitute the sole remedy against the
Person respecting the breach available to Certificateholders, the Depositor,
or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
The Seller assigns to the Depositor and the Depositor assigns to the
Trustee all rights the Seller might have under contracts with third parties
relating to early payment defaults on the Mortgage Loans ("EPD Rights") and
the Servicer assumes any related duties as part of its servicing obligations.
Consistent with the Servicing Standard, the Servicer shall attempt to enforce
the EPD Rights. If the
51
Servicer's enforcement of the EPD Rights obligates the Servicer to sell a
Mortgage Loan to a third party, the Servicer shall repurchase the Mortgage
Loan at the Purchase Price and sell the Mortgage Loan to the third party,
provided however, in no case shall the Servicer be obligated to repurchase a
Mortgage Loan on account of EPD Rights unless and until the Servicer shall
have previously received the repurchase payment from a third party. The
Servicer shall deposit into the Certificate Account all amounts received in
connection with the enforcement of EPD Rights, not exceeding the Purchase
Price, with respect to any Mortgage Loan. Any amounts received by the Servicer
with respect a Mortgage Loan in excess of the Purchase Price shall be retained
by the Servicer as additional servicing compensation. The Trustee, upon
receipt of certification from the Servicer of the deposit of the Purchase
Price in connection with a repurchase of a Mortgage Loan and a Request for
Release from the Servicer, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment prepared by the
purchaser of such Mortgage Loan, in each case without recourse, as shall be
necessary to vest in the purchaser of such Mortgage Loan any Mortgage Loan
released pursuant hereto and the purchaser of such Mortgage Loan shall succeed
to all the Trustee's right, title and interest in and to such Mortgage Loan
and all security and documents related thereto. Such assignment shall be an
assignment outright and not for security. The purchaser of such Mortgage Loan
shall thereupon own such Mortgage Loan, and all security and documents, free
of any further obligation to the Trustee or the Certificateholders with
respect thereto.
Section 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to
each Mortgage Loan as of the date of this Agreement or such other date set
forth in this Agreement that as of the Closing Date, and following the
transfer of the Mortgage Loans to it by the Seller, the Depositor had good
title to the Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses, or counterclaims.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage"
within the meaning of section 860G(a)(3) of the Code, the party discovering
such fact shall promptly (and in any event within five Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller's option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within 90 days of
such discovery in the same manner as it would a Mortgage Loan for a breach of
representation or warranty made pursuant to Section 2.03. The Trustee
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shall reconvey to the Seller the Mortgage Loan to be released pursuant hereto
in the same manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or warranty contained
in Section 2.03.
Section 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in
authorized denominations evidencing directly or indirectly the entire
ownership of the Trust Fund. The Trustee agrees to hold the Trust Fund and
exercise the rights referred to above for the benefit of all present and
future Holders of the Certificates.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest
possible maturity date" for federal income tax purposes of all interests
created under this Agreement. The "Startup Day" for purposes of the REMIC
Provisions shall be the Closing Date. Each REMIC's fiscal year shall be the
calendar year.
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ARTICLE THREE
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 any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the 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(R) System, or cause the removal from the registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments of
assignment and other comparable instruments with respect to such assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns.
In accordance with and to the extent of the Servicing Standard, the
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.
Nothing in this Agreement to the contrary shall limit the Servicer from
undertaking any legal action that it may deem appropriate with respect to the
Mortgage Loans including, without limitation, any rights or causes of action
arising out of the origination of the Mortgage Loans.
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Section 3.02. [Reserved].
Section 3.03. Rights of the Depositor and the Trustee in Respect of the
Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the Servicer under this Agreement and may, but is not obligated to, perform,
or cause a designee to perform, any defaulted obligation of the Servicer under
this Agreement and in connection with any such defaulted obligation to
exercise the related rights of the Servicer under this Agreement; provided
that the Servicer shall not be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee.
Neither the Trustee nor the Depositor shall have any responsibility or
liability for any action or failure to act by the Servicer nor shall the
Trustee or the Depositor be obligated to supervise the performance of the
Servicer under this Agreement or otherwise.
Section 3.04. [Reserved].
Section 3.05. Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an Event of
Default), the Trustee or its successor shall assume all of the rights and
obligations of the Servicer under this Agreement 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 2.02 or 2.03,
(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; Certificate Account;
Distribution 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 3.21, any Prepayment Charge in
connection with the prepayment of a Mortgage Loan and (ii) extend the due
dates for payments due on a Delinquent Mortgage Loan for a period not greater
than 125 days. In connection with a seriously delinquent or defaulted Mortgage
Loan, the Servicer may, consistent with the Servicing
55
Standard, waive, modify or vary any term of that Mortgage Loan (including
modifications that change the Mortgage Rate, forgive the payment of principal
or interest or extend the final maturity date of that Mortgage Loan ), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of that Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor if in the Servicer's determination such waiver,
modification, postponement or indulgence is not materially adverse to the
interests of the Certificateholders (taking into account any estimated loss
that might result absent such action) and is expected to minimize the loss on
such Mortgage Loan; provided, however, the Servicer shall not initiate new
lending to such Mortgagor through the Trust and cannot, except as provided in
the immediately succeeding sentence, extend the maturity of any Mortgage Loan
past the date on which the final payment is due on the latest maturing
Mortgage Loan as of the Cut-off Date. With respect to no more than 5% of the
Mortgage Loans (measured by aggregate Cut-off Date Principal Balance of the
Mortgage Loans), the Servicer may extend the maturity of a Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage
Loan as of the Cut-off Date, but in no event more than one year past such
date. In the event of any such arrangement, the 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 have the discretion to
sell any Delinquent or defaulted Mortgage Loan.
(b) [reserved].
(c) [reserved].
(d) The Servicer shall establish and maintain a Certificate Account into
which the Servicer shall deposit on a daily basis (1) within two Business Days
of receipt (in the case of items (i) through (iii) below) and (2) within one
Business Day of receipt (in the case of all other items), except as otherwise
specified herein, the following payments and collections received by it 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 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) any amount required to be deposited by the Servicer pursuant
to Section 3.06(f) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Servicer pursuant
to Sections 3.10 and 3.12;
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(vi) all Purchase Prices 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 under this
Agreement; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause funds to
be deposited into the Certificate Account in an amount required to cause an
amount of interest to be paid with respect to the Mortgage Loan equal to the
amount of interest that has accrued on the Mortgage Loan from the preceding
Due Date at the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges or
assumption fees, if collected, need not be remitted by the 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 in this
Agreement to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The Servicer shall maintain
adequate records with respect to all withdrawals made pursuant to this Section
3.06. All funds deposited in the Certificate Account shall be held in trust
for the Certificateholders until withdrawn in accordance with Section 3.09.
(e) The Trustee shall establish and maintain the Distribution Account on
behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account the
following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it may
at any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in
the Distribution Account. All funds deposited in the Distribution Account
shall be held by the Trustee in trust for the Certificateholders until
disbursed in accordance with this Agreement or withdrawn in accordance with
Section 3.09. In no event shall the Trustee incur liability for withdrawals
from the Distribution Account at the direction of the Servicer.
(f) Each institution at which the Certificate Account is maintained
shall invest the funds in such account as directed in writing by the Servicer
in Permitted Investments, which shall mature not later
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than the second Business Day preceding the related Distribution Account
Deposit Date (except that if the Permitted Investment is an obligation of the
institution that maintains the account, then the Permitted Investment shall
mature not later than the Business Day preceding the Distribution Account
Deposit Date) and which shall not be sold or disposed of before its maturity.
The funds in the Distribution Account shall remain uninvested. All such
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Certificateholders. All income realized from any such
investment of funds on deposit in the Certificate Account shall be for the
benefit of the Servicer as servicing compensation and shall be remitted to it
monthly as provided in this Agreement. The amount of any realized losses on
Permitted Investments in the Certificate Account shall promptly be deposited
by the Servicer in the Certificate Account. The Trustee shall not be liable
for the amount of any loss incurred in respect of any investment or lack of
investment of funds held in the Certificate Account and made in accordance
with this Section 3.06.
(g) [Reserved]
(h) The Servicer shall give notice to the Trustee, the Seller, each
Rating Agency and the Depositor of any proposed change of the location of the
Certificate Account not later than 30 days and not more than 45 days prior to
any change of this Agreement. The Trustee shall give notice to the Servicer,
the Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account not later than 30 days and not more than
45 days prior to any change of this Agreement.
Section 3.07. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall establish and maintain one or
more accounts (each, an "Escrow Account") and deposit and retain therein all
collections from the Mortgagors (or advances) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the 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 Section 3.01 (with respect to taxes and
assessments and insurance premiums) and Section 3.10 (with respect to hazard
insurance), to refund to any Mortgagors 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 or advanced by the Servicer
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 and the Trustee reasonable
access to all records and documentation regarding the Mortgage Loans and all
accounts, insurance information and other matters
58
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 and the
Distribution 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 master servicing
compensation, earnings on or investment income with respect to funds in
or credited to the Certificate Account;
(ii) to reimburse the Servicer or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement pursuant
to this subclause (ii) being limited to amounts received on the Mortgage
Loans in respect of which the Advance was made;
(iii) to reimburse the Servicer or successor Servicer for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this clause
(a) with respect to any Mortgage Loan being limited to amounts received
on the Mortgage Loans that represent late recoveries of the payments for
which the advances were made pursuant to Section 3.01 or Section 3.07,
(b) unreimbursed Servicing Advances made in respect of a Mortgage Loan
for which such Servicing Advances are no recoverable from the Mortgagor
and (c) for unpaid Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage Loan
or property acquired in respect of such Mortgage Loan that has been
purchased pursuant to Section 2.02, 2.03, or 3.12, all amounts received
thereon after the date of such purchase;
(vii) to reimburse the 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 in the Certificate Account;
59
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
Available 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) [reserved]
(ii) to withdraw and return to the Servicer any amount deposited
in the Distribution Account and not required to be deposited therein;
and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Servicer shall maintain, for each Mortgage Loan, hazard
insurance with extended coverage in an amount that is at least equal to the
lesser of
(i) the maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming a
co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any
amounts collected under the policies (other than the amounts to be applied to
the restoration or repair of the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the 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
60
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.
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.
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.
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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 set forth in Section 3.11(a), in any case in which a Mortgaged Property
has been conveyed to a Person by a Mortgagor, and the Person is to enter into
an assumption agreement or modification agreement or supplement to the
Mortgage Note or Mortgage that requires the signature of the Trustee, or if an
instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the 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
with such Officer's Certificate. 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 of the
Mortgage File. 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.
The Servicer shall use reasonable efforts in accordance with the
Servicing Standard to foreclose on or otherwise comparably convert the
ownership of assets securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments. In connection with the foreclosure or
other conversion, the Servicer shall follow the Servicing Standard and shall
follow the requirements of the insurer under any Required Insurance Policy.
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
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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 of such costs and
expenses from the liquidation proceeds with respect to the related Mortgaged
Property, as provided in the definition of Liquidation Proceeds. If the
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 a one mile radius of any site listed in the Expenditure Plan
for the Hazardous Substance Clean Up Bond Act of 1984 or other site with
environmental or hazardous waste risks known to the Servicer, the Servicer
will, before acquiring the Mortgaged Property, consider the risks and only
take action in accordance with its established environmental review
procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's name shall
be placed on the title to the REO Property solely as the Trustee hereunder and
not in its individual capacity. The Servicer shall ensure that the title to
the REO Property references the Pooling and Servicing Agreement and the
Trustee's capacity hereunder. Pursuant to its efforts to sell the REO
Property, the Servicer shall either itself or through an agent selected by the
Servicer protect and conserve the REO Property in accordance with the
Servicing Standard.
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, by preparing any required tax and information
returns, in the form required.
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 costs incurred (including any
property or other taxes) in connection with maintenance of the REO Properties
and net of unreimbursed Servicing Fees, Advances, and Servicing Advances,
shall be applied to the payment of principal of and interest on the related
defaulted Mortgage Loans (with interest accruing as though the Mortgage Loans
were still current and adjustments, if applicable, to the Mortgage Rate were
being made in accordance with the Mortgage Note) and all such proceeds shall
be deemed, for all purposes in this Agreement, to be payments on account of
principal and interest on the related Mortgage Notes and shall be deposited
into the Certificate Account. To the extent the net proceeds received during
any calendar month exceeds the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan for
the calendar month, the excess shall be considered to be a partial prepayment
of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related
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unreimbursed Servicing Advances or Servicing Fees or for any related
unreimbursed Advances, as applicable; second, to reimburse the Servicer, as
applicable, and 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)(iii) that related to the Mortgage Loan; third, to
accrued and unpaid interest (to the extent no Advance has been made for such
amount or any such Advance has been reimbursed) on the Mortgage Loan or
related REO Property, at the Adjusted Net Mortgage Rate to the Due Date
occurring in the month in which such amounts are required to be distributed;
and fourth, as a recovery of principal of the Mortgage Loan. The Servicer will
retain any Excess Proceeds from the liquidation of a Liquidated Mortgage Loan
as additional servicing compensation pursuant to Section 3.15.
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 (ii) the Servicer purchases that 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 this paragraph have been satisfied with respect to a Mortgage
Loan to be repurchased pursuant to this paragraph.
The Servicer shall deposit the Purchase Price for any Mortgage Loan
repurchased pursuant to Section 3.12 in the Certificate Account pursuant to
Section 3.06 within one 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 "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, 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.
Section 3.13. 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. The Servicer is authorized to cause the removal from the
registration on the MERS System of such Mortgage and to execute and deliver,
on behalf of the Trustee and the Certificateholders or any of them, any and
all instruments of satisfaction or cancellation or of partial or full release.
Expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the related Mortgagor.
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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 set forth 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 3.14. 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 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 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Servicer may retain or
withdraw from the Certificate Account the Servicing Fee for each Mortgage Loan
for the related Distribution Date. Notwithstanding the foregoing, the
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.
The Servicer may retain or withdraw from the Certificate Account the
Servicing Fee for each Mortgage Loan for the related Distribution Date. If the
Servicer directly services a Mortgage Loan, the Servicer may retain the
Servicing Fee for its own account as compensation for performing services.
Additional servicing compensation in the form of Excess Proceeds, Prepayment
Interest Excess, assumption fees, late payment charges and all income net of
any losses realized from Permitted Investments shall be retained by the
Servicer to the extent not required to be deposited in the Certificate
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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
(including payment of any premiums for hazard insurance, and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
Section 3.16. Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Certificates and Certificate
Owners and the examiners and supervisory agents of the OTS, the FDIC, and such
other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Servicer.
Nothing in this Section 3.16 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 3.16 as a result of such obligation shall not constitute a breach
of this Section 3.16.
Section 3.17. Annual Statement as to Compliance.
(a) By March 1 of each year, commencing with 2007, the Servicer shall
deliver to the Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and
the Depositor an Officer's Certificate signed by two Servicing Officers
stating, as to each signer thereof, that (i) a review of the activities of the
Servicer during the preceding calendar year (or applicable portion thereof)
and of the performance of the Servicer under this Agreement has been made
under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on the review, the Servicer has fulfilled all its obligations
under this Agreement, in all material respects throughout the year (or
applicable portion thereof), or, if there has been a failure to fulfill any
obligation in any material respect, specifying each failure known to the
officer and the nature and status thereof.
(b) [Reserved].
(c) The Trustee shall forward a copy of each such statement to each
Rating Agency. Copies of such statement shall be provided by the Trustee to
any Certificateholder or Certificate Owner upon request at the Servicer's
expense, provided such statement is delivered by the Servicer to the Trustee.
Section 3.18. 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. 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 3.19. The Swap Contract and the Corridor Contract.
(a) The Depositor shall cause the Supplemental Interest Trustee to enter
into an interest rate swap transaction evidenced by the Swap Contract. The
Supplemental Interest Trustee's rights to receive certain proceeds of the Swap
Contract shall not be an asset of the Trust Fund or of any REMIC. The
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Supplemental Interest Trustee shall deposit any amounts received from time to
time from the Swap Counterparty into the Supplemental Interest Reserve Fund.
The Servicer shall deposit any amounts received on behalf of the Supplemental
Interest Trustee from time to time with respect to the Swap Contract into the
Supplemental Interest Reserve Fund.
The Supplemental Interest Trustee shall be subject to a standard of care
identical to that of the Trustee under Article Eight of this Agreement.
On the Business Day preceding each Distribution Date, the Supplemental
Interest Trustee shall notify the Trustee of any amounts distributable to the
Swap Certificates pursuant to Section 4.02(h)(iii) through (viii) that will
remain unpaid following all distributions to be made on such Distribution Date
pursuant to Section 4.02(a) through (c).
Upon the Supplemental Interest Trustee obtaining actual knowledge of the
rating of the Swap Counterparty falling below the Approved Rating Thresholds
(as defined in the Swap Contract), the Supplemental Interest Trustee shall
negotiate an ISDA Credit Support Annex with the Swap Counterparty that meets
the terms of the Swap Contract. If an ISDA Credit Support Annex is negotiated,
the Supplemental Interest Trustee shall demand payment of the Delivery Amount
(as defined in the ISDA Credit Support Annex). In addition, if an ISDA Credit
Support Annex is negotiated, the Supplemental Interest Trustee shall set up an
account in accordance with Section 4.08 to hold cash or other eligible
investments pledged under such ISDA Credit Support Annex. Any cash or other
eligible investments pledged under an ISDA Credit Support Annex shall not be
part of the Supplemental Interest Reserve Fund or the Distribution Account
unless they are applied in accordance with such ISDA Credit Support Annex to
make a payment due to the Supplemental Interest Trustee pursuant to the Swap
Contract.
Upon the Supplemental Interest Trustee obtaining actual knowledge of an
Event of Default (as defined in the Swap Contract) or Termination Event (as
defined in the Swap Contract) for which the Supplemental Interest Trustee has
the right to designate an Early Termination Date (as defined in the Swap
Contract), the Supplemental Interest Trustee shall act at the written
direction of the Depositor as to whether to designate an Early Termination
Date; provided, however, that the Supplemental Interest Trustee shall provide
written notice to each Rating Agency following the Event of Default or
Termination Event. Upon the termination of the Swap Contract under the
circumstances contemplated by this Section 3.19(a), the Supplemental Interest
Trustee shall use its reasonable best efforts to enforce its rights as may be
permitted by the terms of the Swap Contract and consistent with the terms of
this Agreement.
In the event that the Swap Counterparty in respect of a replacement swap
contract pays any upfront amount to the Supplemental Interest Trustee, any
portion of such upfront amount paid by the Swap Counterparty in respect of a
replacement swap contract that is remitted to the Supplemental Interest
Trustee shall be available, to the extent that Interest Remittance Amount and
the Principal Remittance Amount were used on prior Distribution Dates to cover
any Swap Termination Payments due to that Swap Counterparty under the original
applicable Swap Contract, for distribution on each succeeding Distribution
Date in the manner described in Section 4.02(d).
Any portion of any Net Swap Payment or Swap Termination Payment payable
by the Swap Counterparty and not remitted to the Supplemental Interest Trustee
with respect to any Distribution Date will be remitted to Banc of America
Securities LLC and will not be available to make distributions in respect of
any Class of Certificates.
The Swap Counterparty shall be an express third party beneficiary of
this Agreement for the purpose of enforcing the provisions hereof to the
extent of the Swap Counterparty's rights explicitly specified herein as if a
party to this Agreement.
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(b) The Depositor shall cause the Supplemental Interest Trustee to enter
into an interest rate corridor transaction evidenced by the Corridor Contract.
The Supplemental Interest Trustee's rights to receive certain proceeds of the
Corridor Contract shall be an asset of the Supplemental Interest Trust and
shall not be an asset of the Trust Fund nor of any REMIC. The Supplemental
Interest Trustee shall deposit any amounts received from time to time from the
Corridor Counterparty into the Supplemental Interest Reserve Fund.
The Supplemental Interest Trustee shall be subject to a standard of care
identical to that of the Trustee under Article Eight of this Agreement.
On the Business Day preceding each Distribution Date, the Supplemental
Interest Trustee shall notify the Trustee of any amounts distributable to the
Corridor Certificates pursuant to Section 4.03 that will remain unpaid
following all distributions to be made on such Distribution Date pursuant to
Section 4.02(a) through (c).
Section 3.20. Notification of Adjustments.
On each Adjustment Date, the Servicer shall make interest rate
adjustments for each Mortgage Loan in compliance with the requirements of the
related Mortgage and Mortgage Note and applicable regulations. The Servicer
shall execute and deliver the notices required by each Mortgage and Mortgage
Note and applicable regulations regarding interest rate adjustments. The
Servicer also shall provide timely notification to the Trustee of all
applicable data and information regarding such interest rate adjustments and
the Servicer's methods of implementing such interest rate adjustments and
Scheduled Payment adjustments. Upon the discovery by the Servicer or the
Trustee that the Servicer has failed to adjust or has incorrectly adjusted a
Mortgage Rate or a monthly payment pursuant to the terms of the related
Mortgage Note and Mortgage, the Servicer shall immediately deposit in the
Certificate Account from its own funds the amount of any loss caused thereby
without reimbursement therefor; provided, however, the Servicer shall not be
liable with respect to any interest rate adjustments made by any servicer
prior to the Servicer.
Section 3.21. Prepayment Charges.
The Servicer will not waive any part of any Prepayment Charge unless the
waiver relates to a default or a reasonably foreseeable default, the
Prepayment Charge would cause an undue hardship to the related borrower, the
Mortgaged Property is sold by the Mortgagor, the collection of any Prepayment
Charge would violate any relevant law or regulation or the waiving of the
Prepayment Charge would otherwise benefit the Trust Fund and it is expected
that the waiver would maximize recovery of total proceeds taking into account
the value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any
waiver of a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is related to a default or a reasonably foreseeable default). The
Servicer will not waive a Prepayment Charge in connection with a refinancing
of a Mortgage Loan that is not related to a default or a reasonably
foreseeable default.
If a Prepayment Charge is waived other than as permitted by the prior
sentence, then the Servicer is required to pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the Class P Certificates,
by depositing such amount into the Distribution Account from its own funds,
without any right of reimbursement therefor, together with and at the time
that the amount prepaid on the related Mortgage Loan is required to be
deposited into the Distribution Account.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01. Advances.
(a) The Servicer shall determine on or before each Servicer Advance Date
whether it is required to make an Advance pursuant to the definition thereof.
If the Servicer determines it is required to make an Advance, it shall, on or
before the Servicer Advance Date, either (i) deposit into the Certificate
Account an amount equal to the Advance or (ii) make an appropriate entry in
its records relating to the Certificate Account that any Amount Held for
Future Distribution has been used by the Servicer in discharge of its
obligation to make any such Advance. Any funds so applied shall be replaced by
the Servicer by deposit in the Certificate Account no later than the close of
business on the next Servicer Advance Date. The Servicer shall be entitled to
be reimbursed from the Certificate Account for all Advances of its own funds
made pursuant to this Section 4.01 as provided in Section 3.09. The obligation
to make Advances with respect to any Mortgage Loan shall continue if such
Mortgage Loan has been foreclosed or otherwise terminated and the Mortgaged
Property has not been liquidated. The 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
an Advance hereunder and is not a Nonrecoverable Advance. If the Trustee
receives a Trustee Advance Notice on or before 3:00 P.M., New York time on a
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 Trustee Advance
Notice unless it is prohibited from so doing by applicable law.
Notwithstanding the foregoing, the Trustee shall not be required to make such
deposit if the Trustee shall have received written notification from the
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 Advance (including interest at the Prime Rate on the day of such
reimbursement published in The Wall Street Journal) on such amount, made by
the Trustee pursuant to this Section 4.01(b) not later than the second day
following the related 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.
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Section 4.02. Priorities of Distribution.
(a) Distributions of Interest Remittance Amount. On each Distribution
Date, the Interest Remittance Amount for such Distribution Date shall be
allocated by the Trustee from the Distribution Account in the following
priority, until such Interest Remittance Amount have been fully distributed:
(i) to the Supplemental Interest Reserve Fund, the amount of any
Net Swap Payment and any Swap Termination Payment (other than a Swap
Termination Payment due to a Swap Counterparty Trigger Event) payable to
the Swap Counterparty under the Swap Contract with respect to such
Distribution Date;
(ii) concurrently, to each Class of Senior Certificates, the
Current Interest and Interest Carry Forward Amount for each such Class
and such Distribution Date, pro rata, based on the amount of interest
each such Class is entitled to receive on that Distribution Date;
(iii) 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 and Class M-9
Certificates, in that order, the Current Interest for each such Class
and that Distribution Date; and
(iv) for application as part of the Excess Cashflow for that
Distribution Date, pursuant to Section 4.02(c) below, any such Interest
Remittance Amount remaining undistributed for that Distribution Date.
(b) Distributions of Principal Distribution Amount. On each Distribution
Date, an amount up to the Principal Distribution Amount for that Distribution
Date shall be allocated (with the Principal Remittance Amount being applied
first and the Extra Principal Distribution Amount being applied thereafter) by
the Trustee from the Distribution Account in the following priority:
(i) For each Distribution Date prior to the Stepdown Date or on
which a Trigger Event is in effect, in the following priority:
first, to the Supplemental Interest Reserve Fund, any
Net Swap Payment and Swap Termination Payment (other than a
Swap Termination Payment due to a Swap Counterparty Trigger
Event), to the extent not previously paid from Interest
Remittance Amount;
second, to the Class A-R Certificates, until its
Class Certificate Balance is reduced to zero;
third,concurrently, to the Class A-1 and Class A-2
Certificates, pro rata based on their respective Class
Certificate Balances, until their respective Class
Certificate Balances are reduced to zero;
fourth, 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 and Class M-9 Certificates, in that order, until
their respective Class Certificate Balances are reduced to
zero; and
fifth, any remainder as part of the Excess Cashflow to
be allocated as described under Section 4.02(c) below.
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(ii) For each Distribution Date on or after the Stepdown Date and
so long as a Trigger Event is not in effect, from the Principal
Distribution Amount, in the following priority:
first, to the Supplemental Interest Reserve Fund, any
Net Swap Payment and Swap Termination Payment (other than a
Swap Termination Payment due to a Swap Counterparty Trigger
Event), to the extent not previously paid from Interest
Remittance Amount;
second, in an amount up to the Senior Principal
Distribution Amount, concurrently, to the Class A-1 and
Class A-2 Certificates, pro rata based on their respective
Class Certificate Balances, until their respective Class
Certificate Balances are reduced to zero;
third, 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 and Class M-9 Certificates, in that order, the
related Subordinated Class Principal Distribution Target
Amount for that Distribution Date, until their respective
Class Certificate Balances are reduced to zero; and
fourth, any remainder as part of the Excess Cashflow
to be allocated as described under Section 4.02(c) below.
(c) Distributions of Excess Cashflow. With respect to any Distribution
Date, any Excess Cashflow will be distributed to the Classes of Certificates
in the following priority, in each case to the extent of remaining Excess
Cashflow:
(i) to the Classes of Offered Certificates then entitled to
receive distributions in respect of principal, in an amount equal to the
Extra Principal Distribution Amount for that Distribution Date,
distributable to those Classes as part of the Principal Distribution
Amount pursuant to Section 4.02(b) of this Agreement;
(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 and Class M-9
Certificates, in that order, in an amount equal to any Interest Carry
Forward Amount for each such Class;
(iii) concurrently, to the Classes of Senior Certificates, pro
rata based on their respective outstanding Unpaid Realized Loss Amounts,
in an amount equal to the Unpaid Realized Loss Amount for each such
Class;
(iv) 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 and Class M-9
Certificates, in that order in an amount equal to the Unpaid Realized
Loss Amount for each such Class;
(v) to the Carryover Reserve Fund and then from the Carryover
Reserve Fund, concurrently, to the Classes of Senior Certificates, pro
rata, based on their respective Net Rate Carryover, any unpaid Net Rate
Carryover for each such Class;
(vi) to the Carryover Reserve Fund and then from the Carryover
Reserve Fund, sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6,
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Class M-7, Class M-8 and Class M-9 Certificates, in that order, any
unpaid Net Rate Carryover for each such Class;
(vii) to the Supplemental Interest Reserve Fund, an amount equal
to any Swap Termination Payment due to the Swap Counterparty under the
Swap Contract as a result of a Swap Counterparty Trigger Event;
(viii) to the Class C Certificateholders, an amount up to the
Class C Distributable Amount for such Distribution Date; and
(ix) to the Class A-R Certificates.
(d) On each Distribution Date on or prior to the later of the Swap
Contract Termination Date and the Corridor Contract Termination Date,
following the deposits to the Supplemental Interest Reserve Fund pursuant to
4.02(a)(i) and Section 4.08 and the distributions described under Section
4.02(a), (b) and (c), the Supplemental Interest Trustee shall distribute
amounts on deposit in the Supplemental Interest Reserve Fund in the following
amounts and order of priority:
(i) concurrently, to the Classes of Senior Certificates, any
remaining unpaid Current Interest and Interest Carry Forward Amount, pro
rata based on their respective entitlements;
(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 and Class M-9
Certificates, in that order, in an amount equal to any remaining unpaid
Current Interest and Interest Carry Forward Amount for each such Class;
(iii) to the Class or Classes of Certificates then entitled to
receive distributions in respect of principal, any Overcollateralization
Deficiency Amount;
(iv) concurrently, to the Classes of Senior Certificates, pro
rata, based on their respective Unpaid Realized Loss Amounts, in an
amount equal to the Unpaid Realized Loss Amount for each such Class;
(v) 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 and Class M-9
Certificates, in that order, in an amount equal to the remaining Unpaid
Realized Loss Amount for each such Class;
(vi) concurrently, to the Classes of Senior Certificates, to the
extent needed to pay any remaining Net Rate Carryover for each such
Class, pro rata, based on the amount of such remaining Net Rate
Carryover; and
(vii) 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 and Class M-9
Certificates, in that order, to the extent needed to pay any remaining
Net Rate Carryover for each such Class.
Notwithstanding the foregoing priority of distribution, the cumulative
amount paid with respect to clauses (iii), (iv) and (v) above shall not, on
any Distribution Date, exceed the cumulative amount of Realized Losses
incurred on the Mortgage Loans as of that Distribution Date.
Following the distributions of amounts in the Supplemental Interest
Reserve Fund pursuant to the priorities set forth above, the Supplemental
Interest Trustee will distribute any remaining amount on
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deposit in the Supplemental Interest Reserve Fund to the Swap Counterparty,
only to the extent necessary to cover any Swap Termination Payment under the
Swap Contract due to a Swap Counterparty Trigger Event payable to the Swap
Counterparty with respect to that Distribution Date.
(e) To the extent that a Class of LIBOR Certificates receives interest
in excess of the Net Rate Cap (calculated for this purpose without regard to
Swap Termination Payments), such interest shall be deemed to have been paid to
the Carryover Reserve Fund and then paid by the Carryover Reserve Fund to
those Certificateholders. For purposes of the Code, amounts deemed deposited
in the Carryover Reserve Fund shall be deemed to have first been distributed
to the Class C Certificates. To the extent that a Class of LIBOR Certificates
receives interest in excess of the Net Rate Cap (calculated for this purpose
without regard to Swap Termination Payments) and such interest is paid
pursuant to Section 4.02(d), such interest shall be deemed to have been paid
to the Supplemental Interest Reserve Fund and then paid by the Supplemental
Interest Reserve Fund to those Certificateholders.
(f) On each Distribution Date, all amounts representing Class P-1
Prepayment Charges and Class P-2 Prepayment Charges received during the
related Prepayment Period shall be paid to the Class P-1 and Class P-2
Certificates, respectively (including amounts deposited in connection with the
full or partial waiver of such Prepayment Charge Amount pursuant to Section
3.21). On the Distribution Date immediately following the expiration of the
latest Prepayment Charge Period of the Mortgage Loans, the $100 held in trust
for each of Class P-1 and Class P-2 Certificates will be distributed to the
holders of the Class P-1 and Class P-2 Certificates, respectively.
(g) Application of Applied Realized Loss Amounts. On each Distribution
Date, the Trustee shall allocate the Applied Realized Loss Amount to reduce
the Class Certificate Balances of the Subordinated Certificates, sequentially,
to the Class X-0, Xxxxx X-0, Class M-7, Class M-6, Class M-5, Class M-4, Class
M-3, Class M-2 and Class M-1 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero. After the Class
Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero, if the aggregate Class Certificate Balance of the Senior
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans, the amount of that excess will be allocated, sequentially, to the Class
A-2 and Class A-1 Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero.
(h) Application of Subsequent Recoveries. If Subsequent Recoveries have
been received with respect to a Liquidated Mortgage Loan, the amount of such
Subsequent Recoveries will be applied, first, sequentially, to the Senior
Certificates, to increase the Class Certificate Balance of those Classes in an
amount up to the amount of Unpaid Realized Loss Amounts on each such Class,
and, second, to increase the Class Certificate Balance of each Class of
Subordinated Certificates to which Realized Losses have been allocated, but in
each case by not more than the amount of Unpaid Realized Loss Amounts on that
Class of Certificates. Holders of such Certificates will not be entitled to
any payment in respect of Current 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 pro rata to the
Certificate Balance of each Certificate of such Class.
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Section 4.03. [Reserved].
Section 4.04. [Reserved].
Section 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available on its website at xxxxx://xxx.xxx.xx.xxx/xxxx to each
Certificateholder, the Servicer and the Depositor 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 and the amount of Advances included in the
distribution on the Distribution Date;
(iii) the Servicing Fee for such Distribution Date;
(iv) the aggregate amount of expenses paid from amounts on deposit
in (x) the Certificate Account and (y) the Distribution Account;
(v) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(vi) the amount of the distribution allocable to interest, any
Class Unpaid Interest Amounts included in the distribution and any
remaining Class Unpaid Interest Amounts after giving effect to the
distribution;
(vii) 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;
(viii) the aggregate amount of Realized Losses and in the
aggregate incurred and Subsequent Recoveries, if any, received during
the preceding calendar month and aggregate Realized Losses through such
Distribution Date;
(ix) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on the
Distribution Date;
(x) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xi) the number of Mortgage Loans and the Pool Stated Principal
Balance as the first day of the related Due Period and the last day of
the related Due Period;
(xii) as of the last day of the related Due Period:
o the weighted average mortgage rate of the Mortgage Loans,
and
o the weighted average remaining term to maturity of the
Mortgage Loans;
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(xiii) the number and aggregate outstanding balance of the
Mortgage Loans as of the end of the preceding calendar month:
o delinquent (exclusive of Mortgage Loans in foreclosure) (1)
30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and
o 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;
(xiv) 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;
(xv) 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;
(xvi) the total number and principal balance of any REO Properties
as of the close of business on the Determination Date preceding the
Distribution Date;
(xvii) the aggregate amount of Principal Prepayments received
during the related Prepayment Period and the number of Mortgage Loans
subject to such Principal Prepayments;
(xviii) the aggregate amount of Advances reimbursed during the
related Due 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;
(xix) the aggregate amount of Servicing Advances reimbursed during
the related Due 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;
(xx) the aggregate number and outstanding principal balance of
Mortgage Loans repurchased during the related Due Period due to material
breaches of representations and warranties regarding such Mortgage
Loans;
(xxi) [reserved];
(xxii) [reserved];
(xxiii) [reserved];
(xxiv) 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; and
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(xxv) Prepayment Charges collected, waived, and paid by the
Servicer.
The Trustee's responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy of
the information derived from the 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 any other information on which the Servicer
and the Trustee mutually agree.
(b) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Servicer shall deliver to the Trustee
(which delivery may be by electronic data transmission) a report in
substantially the form set forth as Schedule IV.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(v) and (a)(vi) of this Section 4.06
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of
the Code as from time to time in effect.
Section 4.06. Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the LIBOR Certificates, a
Carryover Reserve Fund. The Carryover Reserve Fund shall be 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 held pursuant to this Agreement. The
Carryover Reserve Fund shall not be an asset of any REMIC established by this
Agreement.
(b) On any Distribution Date for which there is Net Rate Carryover with
respect to any Class of LIBOR Certificates, the Trustee shall withdraw funds
from the Carryover Reserve Fund for distribution to the LIBOR Certificates and
the Class C Certificates in the manner specified in Section 4.02(d) (and to
withhold from the amounts so withdrawn the amount of any taxes that it is
authorized to retain pursuant to the second to last paragraph of Section
8.11). In addition, the Trustee may from time to time make withdrawals from
the Carryover Reserve Fund for the following purposes:
(i) to withdraw any amount deposited in the Carryover Reserve Fund
and not required to be deposited therein; and
(ii) clear and terminate the Carryover Reserve Fund upon the
termination of this Agreement pursuant to Section 9.01.
(c) Funds in the Carryover Reserve Fund shall not be invested. The Class
C Certificates shall evidence ownership of the Carryover Reserve Fund for
federal income tax purposes.
(d) Upon termination of the Trust Fund any amounts remaining in the
Carryover Reserve Fund shall be distributed to Bank of America Securities LLC
and will not be available to cover any Net Rate Carryover on subsequent
Distribution Dates.
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Section 4.07. Determination of Pass-Through Rates for LIBOR
Certificates.
On each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Moneyline Telerate Page 3750 as of 11:00 a.m.
London time on each LIBOR Determination Date.
(a) If LIBOR cannot be determined as provided in the first paragraph of
this Section 4.08, the Trustee shall either (i) request each Reference Bank to
inform the Trustee of the quotation offered by its principal London office for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such LIBOR Determination
Date or (ii) in lieu of making any such request, rely on such Reference Bank
quotations that appear at such time on the Reuters Screen LIBO Page (as
defined in the International Swap Dealers Association Inc. Code of Standard
Wording, Assumptions and Provisions for Swaps, 1986 Edition), to the extent
available.
(b) LIBOR for the next Interest Accrual Period for a Class of LIBOR
Certificates will be established by the Trustee on each LIBOR Determination
Date as follows:
(i) If on any LIBOR Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next Interest Accrual
Period for a Class of LIBOR Certificates shall be the arithmetic mean of
such offered quotations (rounding such arithmetic mean upwards if
necessary to the nearest whole multiple of 1/32%).
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period for a Class of LIBOR Certificates shall be
whichever is the higher of (i) LIBOR as determined on the previous LIBOR
Determination Date or (ii) the Reserve Interest Rate. The "Reserve
Interest Rate" shall be the rate per annum which the Trustee determines
to be either (i) the arithmetic mean (rounded upwards if necessary to
the nearest whole multiple of 1/32%) of the one-month United States
dollar lending rates that New York City banks selected by the Trustee
are quoting, on the relevant LIBOR Determination Date, to the principal
London offices of at least two of the Reference Banks to which such
quotations are, in the opinion of the Trustee, being so made, or (ii) in
the event that the Trustee can determine no such arithmetic mean, the
lowest one-month United States dollar lending rate which New York City
banks selected by the Trustee are quoting on such LIBOR Determination
Date to leading European banks.
(iii) If on any LIBOR Determination Date the Trustee is required
but is unable to determine the Reserve Interest Rate in the manner
provided in paragraph (b) above, LIBOR shall be LIBOR as determined on
the preceding LIBOR Determination Date, or, in the case of the first
LIBOR Determination Date, the Initial LIBOR Rate.
(c) Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each LIBOR Determination Date. The 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 Trustee shall promptly appoint or cause to be appointed
another Reference Bank. The Trustee shall have no liability or responsibility
to any Person for (i) the selection of any Reference Bank for purposes of
determining
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LIBOR or (ii) any inability to retain at least four Reference Banks which is
caused by circumstances beyond its reasonable control.
(d) The Pass-Through Rate for each Class of LIBOR Certificates for each
related Interest Accrual Period shall be determined by the Trustee on each
LIBOR Determination Date so long as the LIBOR Certificates are outstanding on
the basis of LIBOR and the respective formulae appearing in footnotes
corresponding to the LIBOR Certificates in the table relating to the
Certificates in the Preliminary Statement.
(e) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Trustee may conclusively rely and shall be protected in relying upon the
offered quotations (whether written, oral or on the Dow Xxxxx Markets) from
the BBA designated banks, the Reference Banks or the New York City banks as to
LIBOR, the Interest Settlement Rate or the Reserve Interest Rate, as
appropriate, in effect from time to time. The Trustee shall not have any
liability or responsibility to any Person for (i) the Trustee's selection of
New York City banks for purposes of determining any Reserve Interest Rate or
(ii) its inability, following a good-faith reasonable effort, to obtain such
quotations from, the BBA designated banks, the Reference Banks or the New York
City banks or to determine such arithmetic mean, all as provided for in this
Section 4.08.
(f) The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
(g) The Pass-Through Rate for the Interest Accrual Period for the first
Distribution Date for each Class of LIBOR Certificates is set forth in the
applicable footnote under the heading "Master REMIC" in the Preliminary
Statement.
Section 4.08. Supplemental Interest Trust and Supplemental Interest
Reserve Fund.
(a) On the Closing Date, there is hereby established a separate trust
(the "Supplemental Interest Trust"), the assets of which shall consist of the
Supplemental Interest Trustee's rights and obligations under the Swap Contract
and the Corridor Contract and that will be treated as a "grantor trust" for
federal income tax purposes. The Supplemental Interest Trust shall be
maintained by the Supplemental Interest Trustee, who initially shall be the
Trustee. The Supplemental Interest Trustee shall hold the assets of the
Supplemental Interest Trust in trust for the benefit of the Holders of the
LIBOR Certificates. For federal income tax purposes, the Supplemental Interest
Trust shall be owned by the Class C Certificates.
(b) On the Closing Date, the Supplemental Interest Trustee shall
establish and maintain a Supplemental Interest Reserve Fund in the name of the
Supplemental Interest Trustee, in trust for the benefit of the Holders of the
Class C and the LIBOR Certificates. The Supplemental Interest Reserve Fund
shall be an Eligible Account, and funds on deposit in the account shall be
held separate and apart from, and shall not be commingled with, any other
moneys, including without limitation, other moneys held by the Trustee
pursuant to this Agreement.
(i) The Supplemental Interest Trustee shall deposit in the
Supplemental Interest Reserve Fund all amounts received from the Swap
Counterparty and the Corridor Counterparty for any Distribution Date
pursuant to the Swap Contract and the Corridor Contract. If the
Supplemental Interest Trustee shall also deposit into the Supplemental
Interest Reserve Fund any amount not required to be deposited in that
account, it may at any time withdraw such amount from the Supplemental
Interest Reserve Fund, any provision in this Agreement to the contrary
notwithstanding. Funds in the
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Supplemental Interest Reserve Fund shall be held uninvested. The Seller
shall be the owner of the Supplemental Interest Reserve Fund for federal
tax purposes. The Supplemental Interest Trustee shall account for the
Supplemental Interest Reserve Fund as an outside reserve fund within the
meaning of Treasury regulation 1.860G-2(h) and not an asset of any REMIC
created pursuant to this Agreement.
(ii) Funds on deposit in the Supplemental Interest Reserve Fund
shall be distributed in the amounts and in the order of priority
described under Section 4.02(d).
(iii) On each Distribution Date, the Trustee shall make the
deposits to the Supplemental Interest Reserve Fund pursuant to Section
4.02(a), and to the extent that the amount of each deposit is
insufficient to pay any Net Swap Payment and/or Swap Termination Payment
(other than a Swap Termination Payment due to a Swap Counterparty
Trigger Event) due to the Swap Counterparty under the Swap Contract with
respect to such Distribution Date, the Trustee shall withdraw, out of
amounts on deposit in the Distribution Account in respect of the
Principal Remittance Amount such additional amount as is necessary to
cover the remaining portion of any such Net Swap Payment and/or Swap
Termination Payment (other than a Swap Termination Payment due to a Swap
Counterparty Trigger Event) due to the Swap Counterparty with respect to
such Distribution Date.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples of $1,000 in excess thereof (except
that one Certificate in each Class may be issued in a different amount which
must exceed the applicable minimum denomination) and aggregate denominations
per Class set forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if such Holder
has so notified the Trustee at least five Business Days before the related
Record Date or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b)
and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. A written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder of a Certificate or
his attorney duly authorized in writing shall accompany every Certificate
presented or surrendered for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and such state securities laws, to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit J (the "Transferor
Certificate") and deliver to the Trustee either (i) a letter in substantially
the form of either Exhibit K (the "Investment Letter") or Exhibit L (the "Rule
144A Letter") or (ii) at the expense of the transferor, an Opinion of Counsel
that such transfer may be made pursuant to an exemption from the Securities
Act; provided, however, that in the case of the delivery of an Investment
Letter in connection with the transfer of any Class C or Class P Certificate
to a transferee that is formed with the purpose of issuing notes backed by
such Class C or Class P Certificate, as the case may be, clause (b) and (c) of
the form of Investment Letter shall not be applicable and shall be deleted by
such transferee. The Depositor shall provide to any Holder of a Private
Certificate and any prospective transferee designated by that Holder,
information regarding the related Certificates and the Mortgage Loans and any
other information necessary to satisfy the condition to eligibility in Rule
144A(d)(4) for transfer of the Certificate without registration thereof under
the Securities Act pursuant to the registration exemption provided by Rule
144A. The Trustee and the Servicer shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans, and other matters regarding the Trust Fund
as the Depositor reasonably requests to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect a
transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor, the 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 K or Exhibit L, and if the
Certificate is a Residual Certificate, the requirement is satisfied only by
the Trustee's receipt of a representation letter from the transferee
substantially in the form of Exhibit I), to the effect that (x) the transferee
is not an employee benefit plan or arrangement subject to section 406 of ERISA
or a plan subject to section 4975 of the Code, or a person acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect the transfer, or (y) if the ERISA-Restricted Certificate
has been the subject of an ERISA-Qualifying Underwriting, a representation
that the transferee is an insurance company that is purchasing such
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 Sections I and III of PTCE
95-60, or (ii) in the case of any ERISA-Restricted Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee, which Opinion of Counsel shall not be an expense of the Trustee, the
Servicer or the Trust Fund, addressed to the Trustee and the Servicer, to the
effect that the purchase and holding of such ERISA-Restricted Certificate will
not result in a non-exempt prohibited transaction under ERISA or section 4975
of the Code and will not subject the Trustee or the Servicer to any obligation
in addition to those expressly undertaken in this Agreement or to any
liability. For purposes of the preceding sentence, with respect to an
ERISA-Restricted Certificate that is not a Residual Certificate, if the
representation letter or Opinion
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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 the representation is violated, or
any attempt is made to transfer to a plan or arrangement subject to section
406 of ERISA or a plan subject to section 4975 of the Code, or a person acting
on behalf of any such plan or arrangement or using the assets of any such plan
or arrangement, without the Opinion of Counsel described above, the attempted
transfer or acquisition shall be void.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under
this Agreement so long as the transfer was registered by the Trustee in
accordance with the foregoing requirements.
So long as the Corridor or the Swap Contract is in effect, no transfer
of an LIBOR Certificate (other than a transfer of an LIBOR Certificate to an
affiliate of the Depositor (either directly or through a nominee) in
connection with the initial issuance of the Certificates) shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such LIBOR Certificate acceptable to and in form and substance
satisfactory to the Trustee to the effect that such transferee is not a Plan,
or (ii) a representation that the purchase and holding of the LIBOR
Certificate satisfy the requirements for exemptive relief under XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or the service provider
exemption provided by Section 408 (b)(17) of ERISA and Section 4975 (d)(20) of
the Code or a similar exemption. In the event that such a representation
letter is not delivered, one of the foregoing representations, as appropriate,
shall be deemed to have been made by the transferee's (including an initial
acquiror's) acceptance of the LIBOR Certificate. In the event that such
representation is violated, such transfer or acquisition shall be void and of
no effect.
No transfer of a Corridor or Swap Certificate shall be made unless the
transferee of such Certificate has provided to the Trustee a correct, complete
and duly executed tax certification form (i.e., U.S. Internal Revenue Service
Form X-0, X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor
form thereto), together with appropriate attachments) as a condition to such
transfer and agrees to update such tax certification form (i) upon expiration
of any such tax certification form, (ii) as required under then applicable
U.S. Treasury regulations and (iii) promptly upon learning that any tax
certification form previously provided has become obsolete or incorrect. Upon
receipt of any such tax certification form from a transferee of any Corridor
or Swap Certificate, the Trustee shall provide such tax certification form to
the Supplemental Interest Trustee. The Supplemental Interest Trustee shall
provide such tax certification form to the Corridor Counterparty or Swap
Counterparty, as applicable. Each Holder of a Corridor or Swap Certificate and
each transferee thereof shall be deemed to have consented to the Trustee and
the Supplemental Interest Trustee forwarding to the Corridor Counterparty or
the Swap Counterparty any such tax certification form it has provided and
updated in accordance with these transfer restrictions. Any purported sales or
transfers of any Corridor or Swap Certificate to a transferee which does not
comply with these requirements shall be deemed null and void under this
Agreement.
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The Supplemental Interest Trustee and the Trustee shall not be liable
for the content or truthfulness of any such tax certification provided to it.
The Supplemental Interest Trustee and the Trustee shall only be required to
forward any tax certification received by it to the Swap Counterparty and
Corridor Counterparty at the last known address provided to it, and shall not
be liable for the receipt of such tax certification by the Swap Counterparty
or the Corridor Counterparty, nor any failure of the Swap Provider or Corridor
Counterparty to process such certification or to take any action as required
under the respective Swap Contract or Corridor Contract, or under applicable
law. The Supplemental Interest Trustee and the Trustee shall have no duty to
take action to correct any misstatement or omission in any tax certification
provided to it and forwarded to the Swap Counterparty and Corridor
Counterparty.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a Transfer Affidavit
from any Person for whom such Person is acting as nominee, trustee or
agent in connection with any Transfer of a Residual Certificate and (C)
not to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual Certificate to
any other Person if it has actual knowledge that such Person is not a
Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that
is in fact not permitted by Section 5.02(b) and this Section 5.02(c) or
for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and either the Rule 144A
Letter or the Investment Letter. The Trustee shall be entitled but not
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.
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(v) The Depositor shall use its best efforts to make available,
upon receipt of written request from the Trustee, all information
necessary to compute any tax imposed under section 860E(e) of the Code
as a result of a Transfer of an Ownership Interest in a Residual
Certificate to any Holder who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
Seller or the Servicer, to the effect that the elimination of such
restrictions will not cause any REMIC created under this Agreement to fail to
qualify as a REMIC at any time that the Certificates are outstanding or result
in the imposition of any tax on the Trust Fund, a Certificateholder or another
Person. Each Person holding or acquiring any Ownership Interest in a Residual
Certificate hereby consents to any amendment of this Agreement which, based on
an Opinion of Counsel furnished to the Trustee, is reasonably necessary (a) to
ensure that the record ownership of, or any beneficial interest in, a Residual
Certificate is not transferred, directly or indirectly, to a Person that is
not a Permitted Transferee and (b) to provide for a means to compel the
Transfer of a Residual Certificate which is held by a Person that is not a
Permitted Transferee to a Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions
referred to above in this Section 5.02 in connection with transfer shall be at
the expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at
all times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the
Depository; (iv) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants; (v) the Trustee shall
deal with the Depository, Depository Participants and Indirect Participants as
representatives of the Certificate Owners of the Book-Entry Certificates for
purposes of exercising the rights of holders under this Agreement, and
requests and directions for and votes of such representatives shall not be
deemed to be inconsistent if they are made with respect to different
Certificate Owners; and (vi) the Trustee may rely and shall be fully protected
in relying upon information furnished by the Depository with respect to its
Depository Participants and furnished by the Depository Participants with
respect to Indirect Participants and persons shown on the books of such
Indirect Participants as direct or indirect Certificate Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository
Participant or brokerage firm representing the Certificate Owner. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities as Depository, and (ii) the Trustee or the Depositor is
unable to locate a qualified successor or (y) after the occurrence of an Event
of Default, Certificate Owners representing at least 51% of the Certificate
Balance of the Book-Entry Certificates together advise the Trustee and the
Depository through the Depository Participants in writing that the
continuation of a book-entry system through the Depository is no longer in the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the
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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 such mutilated,
destroyed, lost, or stolen Certificate, a new Certificate of like Class,
tenor, and Percentage Interest. In connection with the issuance of any new
Certificate under this Section 5.03, the Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and
indefeasible evidence of ownership, as if originally issued, whether or not
the lost, stolen, or destroyed Certificate is found at any time.
Section 5.04. Persons Deemed Owners.
The 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
or the Trustee, nor 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 such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights
under this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose
to transmit, or if the Depositor or Servicer shall request such information in
writing from the Trustee, then the Trustee shall, within ten Business Days
after the receipt of such request, provide the Depositor, the Servicer or such
Certificateholders and/or Certificate Owners at such recipients' expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee. The Depositor and every Certificateholder and/or Certificate Owner,
by receiving and holding a Certificate, agree that the Trustee shall not be
held accountable because of the
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disclosure of any such information as to the list of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or agency
or agencies in the United States located at DB Services Tennessee, 000
Xxxxxxxxx Xxxx Xx., Xxxxxxxxx, XX 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 such location of any such office or agency.
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ARTICLE SIX
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 with
this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
Section 6.02. Merger or Consolidation of the Depositor or the Servicer.
The Depositor and the Servicer will each keep in full effect their
existence and their rights and franchises as a corporation and a federal
savings bank, respectively, under the laws of the United States or under the
laws of one of the states thereof and will each obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the 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; provided,
however, that the successor or surviving Person to the Servicer shall be
qualified to sell mortgage loans to, and to service mortgage loans on behalf
of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Servicer, the Servicer shall provide (x) written notice
to the Depositor of any successor pursuant to this Section and (y) in writing
and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
Servicer.
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 under any liability to the Certificateholders for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Seller, the 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 which would otherwise be imposed by reasons of willful misfeasance,
bad faith or gross negligence in the performance of duties or because of
reckless disregard of obligations and duties hereunder. The Depositor, the
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 and held
harmless against any loss, liability or expense incurred in connection with
any audit, controversy or judicial proceeding relating to a governmental
taxing authority or any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any
specific
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Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred because of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder or because of reckless
disregard of obligations and duties hereunder. None of the Depositor, the
Seller or the Servicer shall be under any obligation to appear in, prosecute
or defend any 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. 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 and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt
by the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading, qualification or withdrawal of
the rating of any of the Certificates or (b) upon determination that its
duties under this Agreement are no longer permissible under applicable law.
Any such determination under clause (b) permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to the Trustee. No such resignation shall become effective until the Trustee
or a successor servicer shall have assumed the Servicer's responsibilities,
duties, liabilities and obligations under this Agreement and the Depositor
shall have received the information described in the following sentence. As a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Servicer shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory
to the Depositor, all information reasonably requested by the Depositor in
order to comply with its reporting obligation under Item 6.02 of Form 8-K with
respect to the resignation of the Servicer.
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ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.
"Event of Default," wherever used in this Agreement, means any one of
the following events:
(a) any failure by the Servicer to deposit in the Certificate Account or
remit to the Trustee any payment required to be made by it under this
Agreement, which failure continues unremedied for five days after the date on
which written notice of the failure has been given to the 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 (except with respect to a failure related to a
Limited Exchange Act Reporting Obligation), which failure materially affects
the rights of Certificateholders and continues unremedied for a period of 60
days after the date on which written notice of such failure shall have been
given to the 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
Delay Delivery Mortgage Loans nor the failure to repurchase or substitute in
lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises for the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed for
a period of 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 occurs, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3%, the Trustee shall by notice in writing to
the Servicer and the Swap Counterparty (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. In addition, if during the period
that the Depositor is required to file Exchange Act Reports with respect to
the Trust Fund, the Servicer shall fail to observe or perform any of
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the obligations that constitute a Limited Exchange Act Reporting Obligation or
the obligations set forth in Section 3.17(a) or Section 11.07(a)(i) and (ii),
and such failure continues for the lesser of 10 calendar days or such period
in which the applicable Exchange Act Report can be filed timely (without
taking into account any extensions), so long as such failure shall not have
been remedied, the Trustee shall, but only at the direction of the Depositor,
terminate all of the rights and obligations of the Servicer under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other
than its rights as a Certificateholder hereunder. The Depositor shall not be
entitled to terminate the rights and obligations of the Servicer if a failure
of the Servicer to identify a Subcontractor "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
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 subject to
Section 3.05, 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 which
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 under
this Agreement, the Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due before the
notice terminating such Servicer's rights and obligations as Servicer
hereunder and received after such notice, that portion thereof to which such
Servicer would have been entitled pursuant to Sections 3.09(a)(i) through
(viii), and any other amounts payable to such Servicer hereunder the
entitlement to which arose before the termination of its activities hereunder.
If the Servicer is terminated, the Trustee shall provide the Depositor
in writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by the Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
successor servicer in the event the Trustee should succeed to the duties of
the Servicer as set forth herein.
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 set forth or provided for
herein and shall be subject to all the responsibilities, duties and
liabilities 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, including, if the Servicer was receiving the
Servicing Fee, the Servicing Fee. Notwithstanding the foregoing, if the
Trustee has become the successor to the Servicer in
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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 responsibilities, duties or liabilities of the Servicer
hereunder. Any successor to the Servicer shall be an institution which is a
FNMA and FHLMC approved seller/servicer in good standing, which has a net
worth of at least $15,000,000, which is willing to service the Mortgage Loans
and which executes and delivers to the Depositor and the Trustee an agreement
accepting such delegation and assignment, containing an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the 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 such assignment and delegation will not be qualified
or reduced as a result of such assignment and delegation. Pending appointment
of a successor to the Servicer hereunder, the Trustee shall act in such
capacity as provided above, subject to section 3.03 and unless prohibited by
law. In connection with such appointment and assumption, the Trustee may make
such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that
in no case shall the rate of such compensation exceed the Servicing Fee Rate.
The Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Neither
the Trustee nor any other successor servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or
any delay in performing, any duties or responsibilities hereunder, in either
case caused by the failure of the Servicer to deliver or provide, or any delay
in delivering or providing, any cash, information, documents or records to it.
In connection with the termination or resignation of the 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(R) System to the successor Servicer or (y)
in causing MERS to designate on the MERS(R) 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 to the
Mortgagors of such change of servicer 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 this Agreement.
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 to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating
Agency notice of each such Event of Default hereunder known to the Trustee,
unless such Event of Default shall have been cured or waived.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any
provision of this Agreement shall examine them to determine whether they are
in the form required by this Agreement. The Trustee shall not be responsible
for the accuracy or content of any such resolution, certificate, statement,
opinion, report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct; provided, however, that, unless an Event of
Default known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of the duties and obligations specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee, and the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Agreement which it believed in good
faith to be genuine and to have been duly executed by the proper authorities
respecting any matters arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it is finally proven that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the
Voting Rights 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. As long as any Voting
Rights are held by parties other than the Seller, its Affiliates, or its
agents, Voting Rights of Certificates held by the Seller, its Affiliates or
its agents as the Seller shall certify to the Trustee upon any entity
obtaining such ownership will be excluded from participating in such voting
arrangements, and excluded from determining the 25% threshold.
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
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instrument, opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties and the Trustee shall have
no responsibility to ascertain or confirm the genuineness of any signature of
any such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; provided, however, that no Certificates held by
the Seller, the Depositor or any Affiliate shall be given effect for the
purpose of calculating any such aggregation of Voting Rights;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to this
Agreement, unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or thereby;
(j) the Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic
self-interest for (i) serving as investment adviser, administrator,
shareholder servicing agent, custodian or sub-custodian with respect to
certain of the Permitted Investments, (ii) using Affiliates to effect
transactions in certain Permitted Investments and (iii) effecting transactions
in certain Permitted Investments. The Trustee does not guarantee the
performance of any Permitted Investment; and
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(k) The Trustee shall not knowingly take any action that would cause the
Trust Fund to fail to qualify as a qualifying special purpose entity.
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 Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with
respect to the Trustee's execution and countersignature of the Certificates.
The Trustee shall not be accountable for the use or application by the
Depositor or the 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 makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates.
The Trustee executes the Certificates not in its individual capacity but
solely as Trustee of the Trust Fund created by this Agreement, in the exercise
of the powers and authority conferred and vested in it by this Agreement. Each
of the undertakings and agreements made on the part of the Trustee on behalf
of the Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the
purpose of binding only the Trust Fund.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were
not the Trustee.
Section 8.05. Trustee's Fees and Expenses.
The Trustee and any director, officer, employee, or agent of the Trustee
shall be indemnified by the Servicer against any loss, liability, or expense
(including reasonable attorney's fees) 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
(a) this Agreement, (b) the Certificates, or (c) the performance of any
of the Trustee's duties under this Agreement, other than any loss, liability
or expense incurred because of willful misfeasance, bad faith or negligence in
the performance of any of the Trustee's duties hereunder or incurred by reason
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of any action of the Trustee taken at the direction of the Certificateholders
under this Agreement. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee under this Agreement.
Without limiting the foregoing, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful
misconduct, the Servicer shall pay or reimburse the Trustee, for all
reasonable expenses, disbursements, and advances incurred or made by the
Trustee in accordance with this Agreement with respect to
(i) the reasonable compensation, expenses, and disbursements of
its counsel not associated with the closing of the issuance of the
Certificates, and
(ii) the reasonable compensation, expenses, and disbursements of
any accountant, engineer, or appraiser that is not regularly employed by
the Trustee, to the extent that the Trustee must engage them to perform
services under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Supplemental
Interest Trustee, Registrar, or Paying Agent under this Agreement or for any
other expenses.
Section 8.06. Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, subject to supervision
or examination by federal or state authority and with a credit rating which
would not cause either of the Rating Agencies to reduce their respective then
current ratings of the Certificates (or having provided such security from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with this Section 8.06,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
Servicer and its affiliates; provided, however, that such entity cannot be an
affiliate of the Seller, the Depositor or the Servicer other than the Trustee
in its role as successor to the Servicer.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Servicer, and each Rating Agency not less than 60 days before the date
specified in such notice, when, subject to Section 8.08, such resignation is
to take effect, and acceptance by a successor trustee in accordance with
Section 8.08 meeting the qualifications set forth in Section 8.06. If no
successor trustee meeting such qualifications shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice or
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
As a condition to the effectiveness of any such resignation, at least 15
calendar days prior to the effective date of such resignation, the Trustee
shall provide (x) written notice to the Depositor of any successor pursuant to
this Section and (y) in writing and in form and substance reasonably
satisfactory to
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the Depositor, all information reasonably requested by the Depositor in order
to comply with its reporting obligation under Item 6.02 of Form 8-K with
respect to the resignation of the Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect
to the Trust Fund by any state in which the Trustee or the Trust Fund is
located and the imposition of such tax would be avoided by the appointment of
a different trustee, or (iv) during the period in which the Depositor is
required to file Exchange Act Reports with respect to the Trust Fund, the
Trustee fails to comply with its obligations under the last sentence of
Section 7.01, the preceding paragraph, Section 8.09 or Article 11 and such
failure is not remedied within the lesser of 10 calendar days or such period
in which the applicable Exchange Act Report can be filed timely (without
taking into account any extensions), then, in the case of clauses (i) through
(iii), then the Depositor or the Servicer, or in the case of clause (iv), the
Depositor, may remove the Trustee and appoint a successor trustee by written
instrument, in triplicate, one copy of which shall be delivered to the
Trustee, one copy to the Servicer and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which shall be
delivered by the successor Trustee to the Servicer, one complete set to the
Trustee so removed, one complete set to the successor so appointed and one
complete set to the Depositor, together with a written description of the
basis for such removal. As long as any Voting Rights are held by parties other
than the Seller, its Affiliates, or its agents, Voting Rights of Certificates
held by the Seller, its Affiliates or its agents as the Seller shall certify
to the Trustee upon any such entity obtaining such ownership will be excluded
from participating in such voting arrangements, and excluded from determining
the 51% threshold. The successor trustee shall notify each Rating Agency of
any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to this Section 8.07 shall become effective upon acceptance
of appointment by the successor trustee as provided in Section 8.08.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor and to its predecessor
trustee and the Servicer an instrument accepting such appointment hereunder
and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if
originally named as trustee herein. The Depositor, the Servicer and the
predecessor trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor trustee all such rights, powers,
duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section 8.08 unless, at the time of its acceptance, the successor trustee is
eligible under Section 8.06 and its appointment does not adversely affect the
then current rating of the Certificates and has provided to the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor,
all information reasonably requested by
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the Depositor in order to comply with its reporting obligation under Item 6.02
of Form 8-K with respect to a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates. If the Depositor fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Depositor.
Section 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
eligible under Section 8.06 without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a replacement
Trustee.
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 such Person or Persons, in such capacity and for
the benefit of the Certificateholders, such title to the Trust Fund or any
part thereof, whichever is applicable, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and
be continuing, the Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the 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
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shall be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the holding of
title to the applicable Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of any
act or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or co-trustee
as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee; and
(d) The 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 one or more REMIC
elections pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act
as agent) on behalf of each REMIC created under this Agreement and that in
such capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted
by the Internal Revenue Service) with respect to each REMIC created hereunder
and prepare and file with the Internal Revenue Service and applicable state or
local tax authorities income tax or information returns for each taxable year
with respect to each REMIC described in the Preliminary Statement, containing
such information and at the times and in the manner as may be required by the
Code or state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and
in such manner as may be required thereby;
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(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code,
the name, title, address, and telephone number of the person that the holders
of the Certificates may contact for tax information relating thereto, together
with such additional information as may be required by such Form, and update
such information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created under this Agreement be
treated as a REMIC on the federal tax return for its first taxable year (and,
if necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculations of any original issue
discount and of taxable income or net loss to the holders of the residual
interests in each REMIC created hereunder using the Prepayment Assumption (as
defined in the Prospectus Supplement). For purposes of calculating taxable
income or net loss to the holders of the residual interests in each such
REMIC, the Trustee also shall assume that the indices in respect of any
adjustable rate Mortgage Loans are static until the liquidation or purchase of
the Mortgage Loans in accordance with Section 9.01 herein;
(e) provide information necessary for the computation of tax imposed on
the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Person that is not a Permitted Transferee, or a pass-through entity in which a
Person that is not a Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be
charged to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so
as to maintain the status as any REMIC created under this Agreement under the
REMIC Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of any REMIC
created under this Agreement;
(h) pay, from the sources specified in the last paragraph of this
Section 8.11, the amount of any federal or state tax, including prohibited
transaction taxes as described below, imposed on any REMIC before its
termination when and as the same shall be due and payable (but such obligation
shall not prevent the Trustee or any other appropriate Person from contesting
any such tax in appropriate proceedings and shall not prevent the Trustee from
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings);
(i) ensure that federal, state or local income tax or information
returns shall be signed by the Trustee or such other person as may be required
to sign such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created under this
Agreement, including the income, expenses, assets, and liabilities thereof and
the fair market value and adjusted basis of the assets determined at such
intervals as may be required by the Code, as may be necessary to prepare the
foregoing returns, schedules, statements or information; and
(k) as and when necessary and appropriate, represent each REMIC created
under this Agreement in any administrative or judicial proceedings relating to
an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute
of
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limitations relating to any tax item of such REMIC, and otherwise act on
behalf of such REMIC in relation to any tax matter or controversy involving
it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Thereafter, the
Depositor shall provide to the Trustee promptly upon written request therefor
any additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any
errors or miscalculations of the Trustee that result from any failure of the
Depositor to provide, or to cause to be provided, accurate information or data
to the Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in
section 860F(a)(2) of the Code) of any REMIC created under this Agreement, on
the "net income from foreclosure property" of any REMIC created under this
Agreement as defined in section 860G(c) of the Code, on any contribution to
any REMIC created under this Agreement after the Startup Day pursuant to
section 860G(d) of the Code, or any other tax is imposed, including any
minimum tax imposed on any REMIC created hereunder pursuant to sections 23153
and 24874 of the California Revenue and Taxation Code, if not paid as
otherwise provided for herein, the tax shall be paid by (i) the Trustee, if
any such other tax arises out of or results from negligence of the Trustee in
the performance of any of its obligations under this Agreement, (ii) the
Servicer or the Seller, in the case of any such minimum tax, if such tax
arises out of or results from a breach by the Servicer or Seller of any of
their obligations under this Agreement, (iii) the Seller, if any such tax
arises out of or results from the Seller's obligation to repurchase a Mortgage
Loan pursuant to Section 2.02 or 2.03, or (iv) in all other cases, or if the
Trustee, the Servicer, or the Seller fails to honor its obligations under the
preceding clauses (i), (ii), or (iii), any such tax will be paid with amounts
otherwise to be distributed to the Certificateholders, as provided in Section
3.09(b).
The Trustee shall treat the Carryover Reserve Fund and the Supplemental
Interest Trust as an outside reserve fund within the meaning of Treasury
Regulation 1.860G-2(h) that is owned by the Holders of the Class C
Certificates, and shall treat the Supplemental Interest Trust as an outside
reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that is
owned by the Holders of the Class C Certificates. The Carryover Reserve Fund
and Supplemental Interest Trust shall not be assets of any REMIC created under
this Agreement. The Trustee shall treat the rights of the Holders of the LIBOR
Certificates to receive payments from the Carryover Reserve Fund and the
Supplemental Interest Trust as rights in an interest rate cap contract written
by the Holders of the Class C Certificates in respect of any Net Rate
Carryover (calculated for this purpose without regard to any Swap Termination
Payments) distributed in favor of the Holders of the LIBOR Certificates. The
Trustee is required to allocate tax basis to this asset. Based on information
provided by the Underwriter, it is anticipated that the Trustee will treat the
rights of the Holders of the LIBOR Certificates to receive payments from the
Carryover Reserve Fund and the Supplemental Interest Trust as having a value
of approximately $35,000. Thus, the LIBOR Certificates shall be treated as
representing ownership of not only a Master REMIC regular interest, but also
ownership of an interest in an interest rate cap contract. The Trustee shall
file or cause to be filed with the Internal Revenue Service Form 1041 or such
other form as may be applicable and shall furnish or cause to be furnished, to
the Class C Certificateholders and the LIBOR Certificateholders, the
respective amounts described above that are received, in the time or times and
in the manner required by the Code.
The Trustee shall account for each of the Supplemental Interest Reserve
Fund as an asset of a grantor trust under subpart E, Part I of subchapter J of
the Code and not as an asset of any REMIC created under this Agreement. For
federal income tax purposes, Net Swap Payment and Swap Termination Payments
payable to the Swap Counterparty shall be deemed to be paid to the
Supplemental Interest Trust first, from the Master REMIC, by the Holder of the
Class C Certificates and second, from the Master
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REMIC by the Holders of the applicable Class or Classes of LIBOR Certificates
as and to the extent provided below.
Holders of LIBOR Certificates shall also be treated as having agreed to
pay, on each Distribution Date, to the Holders of the Class C Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and
Swap Termination Payments over (ii) the sum of amounts payable on the Class C
Interest as provided in the Preliminary Statement hereof (such excess, a
"Class IO Shortfall"), first from interest and then from principal
distributable on the LIBOR Certificates. Any payments of Class IO Shortfalls
shall be treated for tax purposes as having been received by the Holders of
such Class of LIBOR Certificates in respect of the corresponding Master REMIC
regular interest and as having been paid by such Holders to the Holders of the
Class C Certificates through the Supplemental Interest Trust.
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ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer, and the Trustee created hereby 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 in respect of a Delinquent Mortgage Loan or REO Property)
plus one month's accrued interest thereon at the applicable Adjusted
Mortgage Rate less any amounts collected by the Servicer representing
principal and interest due after the related Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer and (y) the Stated Principal
Balance of each such Delinquent Mortgage Loan or Mortgage Loan related
to such REO Property, in each case plus accrued and unpaid interest
thereon at the applicable Adjusted Net Mortgage Rate, and
(iii) any costs and damages incurred by the Trust Fund in
connection with any violation by each Mortgage Loan of any predatory or
abusive lending law, and
(b) the later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan and the disposition of all REO
Property and
(ii) the distribution to Certificateholders of all amounts
required to be distributed to them pursuant to this Agreement. In no
event shall the trusts created hereby continue beyond the expiration of
21 years from the death of the survivor of the descendants of Xxxxxx X.
Xxxxxxx, the late Ambassador of the United States to the Court of St.
James's, living on the date of this Agreement.
The right to purchase all Mortgage Loans and REO Properties pursuant to
clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of those Mortgage Loans, at the time of any such repurchase,
aggregating less than ten percent (10%) of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date. The first Distribution
Date on which the right to purchase all Mortgage Loans and REO Properties
pursuant to clause (a) above first becomes exercisable is referred to as the
"Optional Termination Date." The Servicer shall effect any such repurchase by
depositing (x) the purchase price, as calculated above, as of the month
preceding the date on which such purchase price shall be distributed to
Certificateholders into the Certificate Account and (y) any Swap Termination
Payment owed to the Swap Counterparty not due to a Swap Counterparty
Termination Event and any outstanding principal balance on any net interest
margin securities backed by the Class C, Class P-1 or Class P-2 Certificates.
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
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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.
The Supplemental Interest Trust shall terminate on the earlier of (i)
the latest Swap Contract Termination Date, (ii) the reduction of the aggregate
Class Certificate Balance of the LIBOR Certificates to zero and (iii) the
termination of this Agreement.
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, no later than the 15th day of the month
preceding the month of the final Distribution Date the Servicer shall notify
the Depositor and the Trustee 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 15th day
and not later than the last day of the month next preceding the month of such
final distribution. Any such notice shall specify (a) the Distribution Date
upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated,
(b) the amount of such final distribution, (c) the location of the office or
agency at which such presentation and surrender must be made, and (d) that the
Record Date otherwise applicable to the Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Servicer will give such
notice to each Rating Agency at the time such notice is given to
Certificateholders.
If this 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 on the final
Distribution Date and in the order set forth in Section 4.02, an amount equal
to (i) as to each Class of Regular Certificates (other than the Notional
Amount Certificates), its Certificate Balance plus for each such Class accrued
interest thereon (or on their Notional Amount, if applicable) in the case of
an interest-bearing Certificate and (ii) as to the Residual Certificates, any
amount remaining on deposit in the Distribution Account (other than the
amounts retained to meet claims) after application pursuant to clause (i)
above. Notwithstanding the reduction of the Certificate Balance of any Class
of Certificates to zero, such Class will be outstanding hereunder solely for
the purpose of receiving distributions and for no other purpose until the
termination of the respective obligations and responsibilities of the
Depositor, the Servicer and the Trustee hereunder in accordance with Article
Nine. The foregoing provisions are intended to distribute to each Class of
Regular Certificates any accrued and unpaid interest and principal to which
they are entitled based on the Pass-Through Rates and actual Class Certificate
Balances or Notional Amounts set forth in the Preliminary Statement upon
liquidation of the Trust Fund.
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If any affected Certificateholder does not surrender its Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Trustee shall give a second written notice to
the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within six months after the second notice all the applicable Certificates
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for
cancellation, then the Holders of the Class A-R Certificates shall be entitled
to all unclaimed funds and other assets of the Trust Fund which remain subject
hereto.
Section 9.03. Additional Termination Requirements.
(a) 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:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final federal income tax
return for each REMIC created under this Agreement stating that pursuant to
Treasury Regulation ss. 1.860F-1, the first day of the 90-day liquidation
period for such REMIC was the date on which the Trustee sold the assets of the
Trust Fund to the Servicer.
Section 9.04. Termination of the Supplemental Interest Trust.
The Supplemental Interest Trust shall terminate on the earlier of the
date on which the aggregate Class Certificate Balance of the LIBOR
Certificates is reduced to zero and the termination of this Agreement.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision
in this Agreement or to supplement any provision in this Agreement which may
be inconsistent with any other provision in this Agreement, (iii) to conform
this Agreement to the Prospectus Supplement, (iv) to add to the duties of the
Depositor, the 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 Commission from time to time,
(vi) to add any other provisions with respect to matters or questions arising
under this Agreement, or (vii) to modify, alter, amend, add to, or rescind any
of the terms or provisions contained in this Agreement.
No action pursuant to clauses (v), (vi) or (vii) above may, as evidenced
by an Opinion of Counsel (which Opinion of Counsel shall not be an expense of
the Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the
Certificateholders if the Person requesting the amendment obtains a letter
from each Rating Agency stating that the amendment would not result in the
downgrading, qualification or withdrawal of the respective ratings then
assigned to the Certificates. Any such letter in and of itself will not
represent a determination as to the materiality of any amendment and will
represent a determination only as to the credit issues affecting any rating.
Each party to this Agreement agrees that it will cooperate with each other
party in amending this Agreement pursuant to clause (v) above.
The Trustee, the Depositor, and the Servicer also may at any time and
from time to time amend this Agreement without the consent of the
Certificateholders to modify, eliminate or add to any of its provisions to the
extent necessary or helpful to (i) maintain the qualification of any REMIC
created under this Agreement as a REMIC under the Code, (ii) avoid or minimize
the risk of the imposition of any tax on any REMIC created under this
Agreement pursuant to the Code that would be a claim at any time before the
final redemption of the Certificates, or (iii) comply with any other
requirements of the Code, if the Trustee has been provided an Opinion of
Counsel, which opinion shall be an expense of the party requesting such
opinion but in any case shall not be an expense of the Trustee or the Trust
Fund, to the effect that the action is necessary or helpful for one of the
foregoing purposes.
This Agreement may also be amended from time to time by the Depositor,
the Servicer, and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of each Class of
Certificates adversely affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates. As long as any Voting Rights are held by parties other than the
Seller, its Affiliates, or its agents, Voting Rights of Certificates held by
the Seller, its Affiliates or its agents as the Seller shall certify to the
Trustee upon any such entity obtaining such ownership will be excluded from
participating in such voting arrangements, and excluded from determining the
51% threshold. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the
consent of the Holder of such Certificate,
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(ii) amend, modify, add to, rescind, or alter in any respect
Section 10.13, notwithstanding any contrary provision of this Agreement,
without the consent of the Holders of Certificates evidencing Percentage
Interests aggregating not less than 66 2/3% (provided, however, that no
Certificates held by the Seller, the Depositor or any Affiliate thereby
shall be given effect for the purpose of calculating any such
aggregation of Percentage Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders
of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless (i) it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not
cause the imposition of any tax on any REMIC created under this Agreement or
the Certificateholders or cause any REMIC created hereunder to fail to qualify
as a REMIC at any time that any Certificates are outstanding and (ii) because
the Trust Fund is required to be a Qualifying Special Purpose Entity (as that
term is defined in Statement of Financial Accounting Standards No. 140 ("SFAS
140"), in order for the 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 contrary provision of this Agreement, no amendment
shall adversely affect in any material respect the Swap Counterparty without
the prior written consent of the Swap Counterparty, which consent shall not be
unreasonably withheld.
Promptly after the execution of any amendment to this Agreement
requiring the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under
this Section 10.01 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Trust Fund), satisfactory to the Trustee that
(i) such amendment is permitted and is not prohibited by this Agreement and
that all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Certificateholder or (B) the conclusion set forth
in the preceding clause (A) is not required to be reached pursuant to this
Section 10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such
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recordation to be effected by the Servicer at its expense, but only upon
receipt of an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one
and the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i)
of the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust
Fund by the Depositor to the Trustee each be, and be construed as, an absolute
sale thereof. It is, further, not the intention of the parties that such
conveyances be deemed a pledge thereof. However, 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 UCC and (ii) the conveyances provided for in this Agreement shall be
deemed to be an assignment and a grant (i) by the Seller to the Depositor or
(ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Trust Fund, such security interest would be deemed to
be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement. The Depositor
shall arrange for filing any Uniform Commercial Code continuation statements
in connection with any security interest granted or assigned to the Trustee
for the benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency and the Swap Counterparty with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2.03; and
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5. The final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing
and shall be deemed to have been duly given when delivered to (a) in the case
of the Depositor, IndyMac MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Secondary Marketing: Transaction Management; (b)
in the case of the Servicer, IndyMac Bank, F.S.B., 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Secondary Marketing: Transaction
Management or such other address as may be hereafter furnished to the
Depositor and the Trustee by the Servicer in writing; (c) in the case of the
Trustee to the Corporate Trust Office, Deutsche Bank National Trust Company,
0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention:
Mortgage Administration IN0Z2, Series 2006-AR39, or such other address as the
Trustee may hereafter furnish to the Depositor or Servicer, (d) in the case of
each of the Rating Agencies, the address specified therefor in the definition
corresponding to the name of such Rating Agency, and (e) in the case of the
Swap Counterparty, [ ], or such other address as may be hereafter furnished by
the Swap Counterparty. Notices to Certificateholders shall be deemed given
when mailed, first class postage prepaid, to their respective addresses
appearing in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment.
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a petition
or winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
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No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties to this
Agreement, nor shall anything herein set forth or contained in the terms of
the Certificates be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party because of any
action taken by the parties to this Agreement pursuant to any provision of
this Agreement.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event of Default and of the continuance thereof, as
provided in this Agreement, and unless the Holders of Certificates evidencing
not less than 25% of the Voting Rights evidenced by the Certificates shall
also have made written request to the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses, and liabilities to be incurred therein or thereby, and the Trustee,
for 60 days after its receipt of such notice, request and offer of indemnity
shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the Holders of
any other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Agreement, except in the manner herein provided and for the common benefit of
all Certificateholders. For the protection and enforcement of this Section
10.08, each Certificateholder and the Trustee shall be entitled to any relief
that can be given either at law or in equity. As long as any Voting Rights are
held by parties other than the Seller, its Affiliates, or its agents, Voting
Rights of Certificates held by the Seller, its Affiliates or its agents as the
Seller shall certify to the Trustee upon any such entity obtaining such
ownership will be excluded from participating in such voting arrangements, and
excluded from determining the 25% threshold.
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 the Servicer's normal
business hours, to examine all the books of account, records, reports and
other papers of the Servicer relating to the Mortgage Loans, to make copies
and extracts therefrom, to cause such books to be audited by independent
certified public accountants selected by the Depositor or the Trustee and to
discuss its affairs, finances and accounts relating to the Mortgage Loans with
its officers, employees and independent public accountants (and by this
provision the Servicer hereby authorizes said accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Depositor or the Trustee of any right under
this Section 10.09 shall be borne by the party requesting such inspection; all
other such expenses shall be borne by the 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.
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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
created by this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell
assets;
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid in full.
Section 10.13. Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust Fund
shall not hold any property or engage in any activity that would disqualify
the Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles.
111
ARTICLE ELEVEN
EXCHANGE ACT REPORTING
Section 11.01. Filing Obligations.
The Servicer, the Trustee and the Seller shall reasonably cooperate with
the Depositor in connection with the satisfaction of the Depositor's reporting
requirements under the Exchange Act with respect to the Trust Fund. In
addition to the information specified below, if so requested by the Depositor
for the purpose of satisfying its reporting obligation under the Exchange Act,
the Servicer, the Trustee and the Seller shall provide the Depositor with (a)
such information which is available to such Person without unreasonable effort
or expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor
is not a party) to any agreement or amendment required to be filed, copies of
such agreement or amendment in XXXXX-compatible form.
Section 11.02. Form 10-D Filings.
(a) In accordance with the Exchange Act, unless no reporting obligation
under the Exchange Act exists at such time with respect to the Trust Fund, the
Trustee shall prepare for filing and file within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act)
with the Commission with respect to the Trust Fund, a Form 10-D with copies of
the Monthly Report and, to the extent delivered to the Trustee, no later than
five calendar days following the Distribution Date, such other information
identified by the Depositor or the Servicer, in writing, to be filed with the
Commission (such other information, the "Additional Designated Information").
If the Depositor or Servicer directs that any Additional Designated
Information is to be filed with any Form 10-D, the Depositor or Servicer, as
the case may be, shall specify the Item on Form 10-D to which such information
is responsive and, with respect to any Exhibit to be filed on Form 10-D, the
Exhibit number. Any information to be filed on Form 10-D shall be delivered to
the Trustee in XXXXX-compatible form or as otherwise agreed upon by the
Trustee and the Depositor or the Servicer, as the case may be, at the
Depositor's expense, and any necessary conversion to XXXXX-compatible format
will be at the Depositor's expense. At the reasonable request of, and in
accordance with the reasonable directions of, the Depositor or the Servicer,
subject to the two preceding sentences, the Trustee shall prepare for filing
and file an amendment to any Form 10-D previously filed with the Commission
with respect to the Trust Fund. The Depositor shall sign the Form 10-D filed
on behalf of the Trust Fund.
The Trustee shall prepare each Form 10-D and, no later than five
Business Days prior to the date on which such Form 10-D is required to be
filed, deliver a copy of such Form 10-D to the Depositor for review. No later
than the Business Day following the receipt thereof, the Depositor shall
notify the Trustee of any changes to be made to the Form 10-D. The Trustee
shall make any changes thereto requested by the Depositor and deliver the
final Form 10-D to the Depositor for signature no later than three Business
Days prior to the date on which such Form 10-D must be filed by the Trustee in
accordance with this Section 11.02. The Depositor shall execute the final Form
10-D 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 Form 10-D is required to be filed), with an original
executed hard copy to follow by overnight courier.
(b) No later than each Distribution Date, any party responsible for
providing Additional Designated Information shall notify the Depositor and the
Trustee of any Form 10-D Disclosure Item, together with a description of any
such Form 10-D Disclosure Item in form and substance reasonably
112
acceptable to the Depositor. In addition to such information as the Servicer
and the Trustee are obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Depositor, each of the Servicer and the
Trustee shall provide such information which is available to the Servicer and
the Trustee, as applicable, without unreasonable effort or expense regarding
the performance or servicing of the Mortgage Loans (in the case of the
Trustee, based on the information provided by the Servicer) as is reasonably
required to facilitate preparation of distribution reports in accordance with
Item 1121 of Regulation AB. Such information shall be provided concurrently
with the Remittance Reports in the case of the Servicer and the Monthly
Statement in the case of the Trustee, commencing with the first such report
due not less than five Business Days following such request.
(c) The Trustee shall not have any responsibility to file any items
(other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any such
items to such format (other than those items generated by it or that are
readily convertible to such format). The Trustee shall have no liability to
the Certificateholders, the Trust Fund, the Servicer or the Depositor with
respect to any failure to properly prepare or file any of Form 10-D to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part. The Trustee will not have any duty to verify
the accuracy or sufficiency of any information to be included in any Form 10-D
not provided by it.
(d) The Trustee shall have no liability with respect to any failure to
properly prepare and file such periodic reports resulting or relating to the
Trustee's inability or failure to obtain any information not resulting from
its own negligence or willful misconduct.
Section 11.03. Form 8-K Filings.
The Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K required by the Exchange Act. Each Form 8-K must be signed by the
Servicer. Any reporting party identified on Exhibit T shall promptly notify
the Depositor and the Servicer (if the notifying party is not the Servicer),
but in no event later than one (1) Business Day after its occurrence, of any
Reportable Event of which it has actual knowledge. Each Person shall be deemed
to have actual knowledge of any such event to the extent that it relates to
such Person or any action or failure to act by such Person.
Section 11.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such earlier
date as may be required by the Exchange Act), the Depositor shall prepare and
file on behalf of the Trust Fund a Form 10-K, in form and substance as
required by the Exchange Act. A senior officer in charge of the servicing
function of the Servicer shall sign each Form 10-K filed on behalf of the
Trust Fund. Such Form 10-K shall include as exhibits each (i) annual
compliance statement described under Section 3.17, (ii) annual report on
assessments of compliance with servicing criteria described under Section
11.07 and (iii) accountant's report described under Section 11.07. Each Form
10-K shall also include any Xxxxxxxx-Xxxxx Certification required to be
included therewith, as described in Section 11.05.
If the Item 1119 Parties listed on Exhibit T have changed since the
Closing Date, no later than March 1 of each year, the Depositor shall provide
each of the Servicer and the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) with an updated Exhibit T setting forth the Item
1119 Parties. No later than March 15 of each year, commencing in 2007, the
Servicer and the Trustee shall notify the Depositor and the Servicer of any
Form 10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the Depositor.
Additionally, each of the Servicer and the Trustee shall provide, and shall
cause each Reporting Subcontractor retained by the Servicer or the Trustee, as
applicable, the following information no later than March 15 of each year in
113
which a Form 10-K is required to be filed on behalf of the Trust Fund: (i) if
such Person's report on assessment of compliance with servicing criteria
described under Section 11.07 or related registered public accounting firm
attestation report described under Section 11.07 identifies any material
instance of noncompliance, notification of such instance of noncompliance and
(ii) if any such Person's report on assessment of compliance with servicing
criteria or related registered public accounting firm attestation report is
not provided to be filed as an exhibit to such Form 10-K, information
detailing the explanation why such report is not included.
Section 11.05. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange
Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2007, the Servicer and the Trustee shall (unless such
person is the Certifying Person), and the Servicer shall cause each Reporting
Subcontractor and the Trustee shall cause each Reporting Subcontractor to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit R, on which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The senior officer in charge of
the servicing function of the Servicer shall serve as the Certifying Person on
behalf of the Trust Fund. Neither the Servicer nor the Depositor will request
delivery of a certification under this clause unless the Depositor is required
under the Exchange Act to file an annual report on Form 10-K with respect to
the Trust Fund. In the event that prior to the filing date of the Form 10-K in
March of each year, the Trustee or the Depositor has actual knowledge of
information material to the Xxxxxxxx-Xxxxx Certification, the Trustee or the
Depositor, as the case may be, shall promptly notify the Servicer and the
Depositor. The respective parties hereto agree to cooperate with all
reasonable requests made by any Certifying Person or Certification Party in
connection with such Person's attempt to conduct any due diligence that such
Person reasonably believes to be appropriate in order to allow it to deliver
any Xxxxxxxx-Xxxxx Certification or portion thereof with respect to the Trust
Fund.
Section 11.06. Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able to
do so under applicable law, the Trustee on behalf of the Depositor shall file
a Form 15 relating to the automatic suspension of reporting in respect of the
Trust Fund under the Exchange Act.
Section 11.07. Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2007,
unless no reporting obligation under the Exchange Act exists at such time with
respect to the Trust Fund:
(i) Each of the Servicer and the Trustee shall deliver to the
Depositor and the Servicer a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Servicer's or the
Trustee's, as applicable, assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of
Regulation AB. Such report shall be signed by an authorized officer of
such Person and shall address each of the Servicing Criteria applicable
to such party specified on a certification delivered to the Depositor
concurrently with the execution of this Agreement. To the extent any of
the Servicing Criteria are not applicable to
114
such Person, with respect to asset-backed securities transactions taken
as a whole involving such Person and that are backed by the same asset
type backing the Certificates, such report shall include such a
statement to that effect. The Depositor and the Servicer, and each of
their respective officers and directors shall be entitled to rely on
upon each such servicing criteria assessment.
(ii) Each of the Servicer and the Trustee shall deliver to the
Depositor and the Servicer a report of a registered public accounting
firm reasonably acceptable to the Depositor that attests to, and reports
on, the assessment of compliance made by Servicer or the Trustee, as
applicable, and delivered pursuant to the preceding paragraphs. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language. To
the extent any of the Servicing Criteria are not applicable to such
Person, with respect to asset-backed securities transactions taken as a
whole involving such Person and that are backed by the same asset type
backing the Certificates, such report shall include such a statement to
that effect.
(iii) The Servicer shall cause each Reporting Subcontractor to
deliver to the Depositor an assessment of compliance and accountant's
attestation as and when provided in paragraphs (a) and (b) of this
Section 11.07.
(iv) The Trustee shall cause each Reporting Subcontractor to
deliver to the Depositor and the Servicer an assessment of compliance
and accountant's attestation as and when provided in paragraphs (a) and
(b) of this Section.
(v) The Servicer shall execute (and the Servicer shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual compliance statement
provided pursuant to Section 3.17, (B) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section
11.07 and (C) accountant's report provided pursuant to this Section
11.07 and shall include a certification that each such annual compliance
statement or report discloses any deficiencies or defaults described to
the registered public accountants of such Person to enable such
accountants to render the certificates provided for in this Section
11.07.
(vi) The Trustee shall execute (and the Trustee shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual report on assessments
of compliance with servicing criteria provided pursuant to this Section
11.07 and (C) accountant's report provided pursuant to this Section
11.07 and shall include a certification that each such report discloses
any deficiencies or defaults described to the registered public
accountants of such Person to enable such accountants to render the
certificates provided for in this Section 11.07.
(b) In the event the Servicer, the Trustee or Reporting Subcontractor is
terminated or resigns during the term of this Agreement, such Person shall
provide documents and information required by this Section 11.07 with respect
to the period of time it was subject to this Agreement or provided services
with respect to the Trust Fund, the Certificates or the Mortgage Loans.
115
(c) An assessment of compliance provided by a Subcontractor pursuant to
Section 11.07(a)(iii) or (iv) need not address any elements of the Servicing
Criteria other than those specified by the Servicer or the Trustee, as
applicable, pursuant to Section 11.07(a)(i).
Section 11.08. Use of Subcontractors.
(a) [Reserved].
(b) It shall not be necessary for the Servicer or the Trustee to seek
the consent of the Depositor or any other party hereto to the utilization of
any Subcontractor. The Servicer or the Trustee, as applicable, shall promptly
upon request provide to the Depositor (or any designee of the Depositor, such
as the Servicer or administrator) a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by such Person, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are "participating
in the servicing function" within the meaning of Item 1122 of Regulation AB,
and (iii) which elements of the Servicing Criteria will be addressed in
assessments of compliance provided by each Subcontractor identified pursuant
to clause (ii) of this paragraph.
As a condition to the utilization of any Subcontractor determined to be
a Reporting Subcontractor, the Servicer or the Trustee, as applicable, shall
cause any such Subcontractor used by such Person for the benefit of the
Depositor to comply with the provisions of Sections 11.07 and 11.09 of this
Agreement to the same extent as if such Subcontractor were the Servicer
(except with respect to the Servicer's duties with respect to preparing and
filing any Exchange Act Reports or as the Certifying Person) or the Trustee,
as applicable. The Servicer or the Trustee, as applicable, shall be
responsible for obtaining from each Subcontractor and delivering to the
Depositor and the Servicer, any assessment of compliance and attestation
required to be delivered by such Subcontractor under Section 11.05 and Section
11.07, in each case as and when required to be delivered.
Section 11.09. Amendments.
In the event the parties to this Agreement desire to further clarify or
amend any provision of this Article 11, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
11 pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any
Certificateholder.
If, during the period that the Depositor is required to file Exchange
Act Reports with respect to the Trust Fund, the Servicer is no longer an
Affiliate of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Servicer in this Article 11 with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Servicer satisfactory to the Depositor, and such Servicer has agreed to
provide a Xxxxxxxx-Xxxxx Certification to the Depositor substantially in the
form of Exhibit U.
* * * * * *
116
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: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee and Supplemental Interest
Trustee
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.
as Seller and Servicer
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 28th day of December, 2006, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Vice President of IndyMac MBS, Inc., one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxxxx
------------------
Notary Public
[NOTARIAL SEAL]
S-I-1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 27th day of December, 2006, before me, personally appeared
Xxxxxx Xxxxx and Xxxxxxx Xxxxxxxx, known to me to be an Associate and a Vice
President, respectively, of Deutsche Bank National Trust Company, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxx
-----------------
Notary Public
[NOTARIAL SEAL]
S-II-2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 28th day of December, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Vice President of IndyMac Bank, F.S.B., one of
the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of said entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxxxx
------------------
Notary Public
[NOTARIAL SEAL]
S-II-3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR39
Representations and Warranties of the Seller/Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as
of the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings assigned thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and Servicer, IndyMac MBS,
Inc., as depositor, and Deutsche Bank National Trust Company, as trustee and
as supplemental interest trustee.
(1) IndyMac is duly organized as a federally insured savings bank
and is validly existing and in good standing under the laws of the
United States of America and is duly authorized and qualified to
transact any business contemplated by the Pooling and Servicing
Agreement to be conducted by IndyMac in any state in which a Mortgaged
Property is located or is otherwise not required under applicable law to
effect such qualification and, in any event, is in compliance with the
doing business laws of any such state, to the extent necessary to ensure
its ability to enforce each Mortgage Loan, to service the Mortgage Loans
in accordance with the Pooling and Servicing Agreement and to perform
any of its other obligations under the Pooling and Servicing Agreement
in accordance with the terms thereof.
(2) IndyMac has the full corporate power and authority to sell and
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling
and Servicing Agreement and has duly authorized by all necessary
corporate action on the part of IndyMac the execution, delivery and
performance of the Pooling and Servicing Agreement; and the Pooling and
Servicing Agreement, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a legal,
valid and binding obligation of IndyMac, enforceable against IndyMac in
accordance with its terms, except that (a) the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium, receivership and
other similar laws relating to creditors' rights generally and (b) the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling and Servicing Agreement, the consummation of
any other of the transactions contemplated by the Pooling and Servicing
Agreement, and the fulfillment of or compliance with the terms thereof
are in the ordinary course of business of IndyMac and will not (A)
result in a material breach of any term or provision of the charter or
by-laws of IndyMac or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, any other material agreement or instrument to which IndyMac is a
party or by which it may be bound, or (C) constitute a material
violation of any statute, order or regulation applicable to IndyMac of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over IndyMac (including the OTS, the Federal Deposit
Insurance Corporation or any other governmental entity having regulatory
authority over IndyMac); and IndyMac is not in breach or violation of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it (including the OTS, the Federal Deposit Insurance
S-III-1
Corporation or any other governmental entity having regulatory authority
over IndyMac) which breach or violation may materially impair IndyMac's
ability to perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage loans
for FNMA or FHLMC or is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
(5) No litigation is pending or, to the best of IndyMac's
knowledge, threatened against IndyMac that would prohibit the execution
or delivery of, or performance under, the Pooling and Servicing
Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will comply
in all material respects with the rules and procedures of MERS in
connection with the servicing of the MERS Mortgage Loans for as long as
such Mortgage Loans are registered with MERS.
(7) Notwithstanding any federal or state law to the contrary, the
Servicer shall not impose such Prepayment Charge at any time when the
mortgage is accelerated as a result of the borrower's default in making
the scheduled payments.
S-III-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR39
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or if so specified in this Schedule III, as of the Cut-off
Date with respect to each Mortgage Loan. Capitalized terms used but not
otherwise defined in this Schedule III shall have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac, as seller
and Servicer, IndyMac MBS, Inc., as depositor, and Deutsche Bank National
Trust Company, as trustee and as supplemental interest trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and
correct in all material respects as of the Closing Date.
(2) All regularly scheduled monthly payments due with respect to
each Mortgage Loan up to and including the Due Date before the Cut-off
Date have been made; and as of the Cut-off Date, no Mortgage Loan had a
regularly scheduled monthly payment that was 60 or more days Delinquent
during the twelve months before the Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first lien on the
Mortgaged Property subject only to (a) the lien of nondelinquent current
real property taxes and assessments and liens or interests arising under
or as a result of any federal, state or local law, regulation or
ordinance relating to hazardous wastes or hazardous substances and, if
the related Mortgaged Property is a unit in a condominium project or
planned unit development, any lien for common charges permitted by
statute or homeowner association fees, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of such Mortgage, such exceptions
appearing of record being generally acceptable to mortgage lending
institutions in the area wherein the related Mortgaged Property is
located or specifically reflected in the appraisal made in connection
with the origination of the related Mortgage Loan, and (c) other matters
to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by
such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans to the
Depositor, the Seller had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any pledge, lien, encumbrance or
security interest and had full right and authority, subject to no
interest or participation of, or agreement with, any other party, to
sell and assign the same pursuant to the Pooling and Servicing
Agreement.
(5) As of the date of origination of each Mortgage Loan, there was
no delinquent tax or assessment lien against the related Mortgaged
Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor to
pay the unpaid principal of or interest on such Mortgage Note.
S-IV-1
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
prior to or equal with, the lien of such Mortgage, except those which
are insured against by the title insurance policy referred to in item
(11) below.
(8) No Mortgaged Property has been materially damaged by water,
fire, earthquake, windstorm, flood, tornado or similar casualty
(excluding casualty from the presence of hazardous wastes or hazardous
substances, as to which the Seller makes no representation) so as to
affect adversely the value of the related Mortgaged Property as security
for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws and regulations,
including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) The Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and which
has been delivered to the Trustee); satisfied, cancelled or subordinated
such Mortgage in whole or in part; released the related Mortgaged
Property in whole or in part from the lien of such Mortgage; or executed
any instrument of release, cancellation, modification or satisfaction
with respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if
applicable, in an amount at least equal to the Cut-off Date Principal
Balance of each such Mortgage Loan or a commitment (binder) to issue the
same was effective on the date of the origination of each Mortgage Loan
and each such policy is valid and remains in full force and effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by
an entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) All of the improvements which were included for the purpose
of determining the Appraised Value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not
have a material effect on the value of the Mortgaged Property.
(14) 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. 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.
A-2
(15) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(16) The proceeds of the Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(19) At the Cut-off Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy
with a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customarily required
by institutional single family mortgage lenders in the area where the
Mortgaged Property is located, and the 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.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the
then-current requirements of the Flood Insurance Administration is in
effect with respect to the Mortgaged Property with a generally
acceptable carrier.
(21) There is no proceeding pending or threatened for the total or
partial condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring.
(22) There is no material event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a material non-monetary default, breach, violation or event
of acceleration under the Mortgage or the related Mortgage Note; and the
Seller has not waived any material non-monetary default, breach,
violation or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a stated
term of not less than five years in excess of the term of the related
Mortgage Loan.
A-3
(25) Each Mortgage Loan was selected from among the outstanding
one- to four-family mortgage loans in the Seller's portfolio at the
Closing Date as to which the representations and warranties made with
respect to the Mortgage Loans set forth in this Schedule III can be
made. No such selection was made in a manner intended to adversely
affect the interests of the Certificateholders.
(26) No more than [ ]% of the Mortgage Loans are Cooperative
Loans.
(27) [Reserved].
(28) None of the Mortgage Loans is a "high cost" loan, "covered"
loan (excluding home loans defined as "covered home loans" in the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home" or "predatory"
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.
(29) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(30) [Reserved].
(31) No proceeds from any Mortgage Loan underlying the
Certificates were used to finance single-premium credit insurance
policies.
(32) None of the Mortgage Notes related to the Mortgage Loans
impose a Prepayment Charge on the related Mortgage Loan for a term in
excess of three years from the origination of the Mortgage Loan.
(33) [Reserved].
(34) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994.
(35) No borrower was encouraged or required to select a Mortgage
Loan product offered by the Mortgage Loan's originator that is a higher
cost product designed for less creditworthy borrowers, unless at the
time of the Mortgage Loan's origination, such borrower did not qualify
taking into account credit history and debt-to-income ratios, for a
lower-cost credit product then offered by the Seller or any affiliate of
the Seller. If, at the time of loan application, the borrower may have
qualified for a lower-cost credit product then offered by any mortgage
lending affiliate of the Seller, the Seller referred the borrower's
application to such affiliate for underwriting consideration.
(36) The methodology used in underwriting the extension of credit
for each Mortgage Loan employs objective mathematical principles that
relate the borrower's income, assets and liabilities to the proposed
payment and such underwriting methodology does not rely on the extent of
the borrower's equity in the collateral as the principal determining
factor in approving such credit extension. Such underwriting methodology
confirmed that at the time of origination (application/approval) the
borrower had a reasonable ability to make timely payments on the
Mortgage Loan.
A-4
(37) No Mortgage Loan is a "High-Cost Home Loan" as defined in
any of the following statutes: the Georgia Fair Lending Act, as amended
(the "Georgia Act"), the New York Banking Law 6-1, the Arkansas Home
Loan Protection Act effective July 16, 2003 (Act 1340 of 2003), the
Kentucky high-cost home loan statute effective June 24, 2003 (Ky. Rev.
Stat. Section 360.100), the New Jersey Home Ownership Act effective
November 27, 2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home
Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx xx.xx.
58-21A-1 et seq.). With respect to any Mortgage Loan subject to the
Georgia Act and secured by owner occupied real property or an owner
occupied manufactured home located in the state of Georgia and
originated (or modified) on or after October 1, 2002 through and
including March 7, 2003, such Mortgage Loan was originated by IndyMac.
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.). No Mortgage Loan is a "High-Cost Home Mortgage Loan" as
defined in Massachusetts Predatory Home Loan Practices Act, effective
November 6, 2004 (Mass. Xxx. Laws Ch. 183C). None of the Mortgage Loans
that are secured by property located in the State of Illinois are in
violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.).
(38) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Seller's guidelines, subject to
such variances as are reflected on the Mortgage Loan Schedule or that
the Seller has approved.
(39) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.7 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.
(40) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of the
UCC) in each Mortgage Note in favor of the Trustee, which security
interest is prior to all other liens and is enforceable as such against
creditors of and purchasers from the Depositor. Each Mortgage Note
constitutes "promissory notes" (as defined in Section 9-102(a)(65) of
the UCC). Immediately before the assignment of each Mortgage Note to the
Trustee, the Depositor had good and marketable title to such Mortgage
Note free and clear of any lien, claim, encumbrance of any Person. All
original executed copies of each Mortgage Note have been or shall be
delivered to the Trustee within five Business Days following the Closing
Date. Other than the security interest granted to the Trustee, the
Depositor has not pledged, assigned, sold, granted a security interest
in, or otherwise conveyed any Mortgage Note. The Depositor has not
authorized the filing of and is not aware of any financing statements
against the Depositor that include a description of any of the Mortgage
Notes. The Depositor is not aware of any judgment or tax liens filed
against the Depositor. None of the Mortgage Notes has any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Trustee.
(41) 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.
(42) Each Loan is a "qualified mortgage" under Section 860G(a)(3)
of the Code.
A-5
Schedule IV
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR39
Form of Monthly Report
[on file with the Trustee]
S-IV-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
SO LONG AS THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN'S OR
ARRANGEMENT'S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A "PLAN")
NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23
OR THE SERVICE PROVIDER EXEMPTION PROVIDED UNDER SECTION 408(B)(17) OF ERISA
AND SECTION 4975(D)(20) OF THE CODE. ANY PURPORTED TRANSFER OF THIS
CERTIFICATE PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST TO OR
ON BEHALF OF A PLAN WITHOUT THE DELIVERY TO THE TRUSTEE OF A REPRESENTATION
LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. IF THIS CERTIFICATE
IS A BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED TO HAVE MADE A
REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS PARAGRAPH, AS
APPLICABLE.
PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, NO TRANSFER OF
THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN'S OR
ARRANGEMENT'S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A "PLAN")
NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION
B-1
AND HOLDING OF THIS CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23 OR THE SERVICE PROVIDER EXEMPTION PROVIDED UNDER
SECTION 408(B)(17) OF ERISA AND SECTION 4975(D)(20) OF THE CODE. ANY PURPORTED
TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL
INTEREST TRUST TO OR ON BEHALF OF A PLAN WITHOUT THE DELIVERY TO THE TRUSTEE
OF A REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED
TO HAVE MADE A REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS
PARAGRAPH, AS APPLICABLE.
SO LONG AS THE CORRIDOR OR THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF AN
LIBOR CERTIFICATE (OTHER THAN A TRANSFER OF A LIBOR CERTIFICATE TO AN
AFFILIATE OF THE DEPOSITOR (EITHER DIRECTLY OR THROUGH A NOMINEE) IN
CONNECTION WITH THE INITIAL ISSUANCE OF THE CERTIFICATES) SHALL BE MADE UNLESS
THE TRUSTEE SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION FROM THE
TRANSFEREE OF SUCH LIBOR CERTIFICATE ACCEPTABLE TO AND IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT A PLAN,
OR (II) A REPRESENTATION THAT THE PURCHASE AND HOLDING OF THE LIBOR
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 OR THE SERVICE PROVIDER
EXEMPTION PROVIDED BY SECTION 408 (B)(17) OF ERISA AND SECTION 4975 (D)(20) OF
THE CODE OR A SIMILAR EXEMPTION. IN THE EVENT THAT SUCH A REPRESENTATION
LETTER IS NOT DELIVERED, ONE OF THE FOREGOING REPRESENTATIONS, AS APPROPRIATE,
SHALL BE DEEMED TO HAVE BEEN MADE BY THE TRANSFEREE'S (INCLUDING AN INITIAL
ACQUIROR'S) ACCEPTANCE OF THE LIBOR CERTIFICATE. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, SUCH TRANSFER OR ACQUISITION SHALL BE VOID AND OF
NO EFFECT.
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the 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 Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee") and as supplemental interest 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.
B-3
So long as the Swap Contract is in effect, neither this certificate nor
any interest herein may be transferred unless the transferee represents to the
Trustee either (i) that such transferee is not a Plan, or (ii) that, in
addition to the transferee satisfying requirements of the Underwriter
Exemption, the purchase and holding of the Certificate satisfy the
requirements for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23, the service provider exemption provided under section
408(b)(17) of ERISA and section 4975(d)(20) of the Code or a similar
exemption. In the event such a representation letter is not delivered, one of
the foregoing representations, as appropriate, shall be deemed to have been
made by the transferee's acceptance of the Certificate. In the event that such
representation is violated, such transfer or acquisition shall be void and of
no effect.
So long as the Corridor or the Swap Contract is in effect, no transfer
of a LIBOR Certificate (other than a transfer of an LIBOR Certificate to an
affiliate of the Depositor (either directly or through a nominee) in
connection with the initial issuance of the Certificates) shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such LIBOR Certificate acceptable to and in form and substance
satisfactory to the Trustee to the effect that such transferee is not a Plan,
or (ii) a representation that the purchase and holding of the LIBOR
Certificate satisfy the requirements for exemptive relief under XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or the service provider
exemption provided by Section 408 (b)(17) of ERISA and Section 4975 (d)(20) of
the Code or a similar exemption. In the event that such a representation
letter is not delivered, one of the foregoing representations, as appropriate,
shall be deemed to have been made by the transferee's (including an initial
acquiror's) acceptance of the LIBOR Certificate. In the event that such
representation is violated, such transfer or acquisition shall be void and of
no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-5
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
SO LONG AS THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF THIS
CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN'S OR
ARRANGEMENT'S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A "PLAN")
NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23
OR THE SERVICE PROVIDER EXEMPTION PROVIDED UNDER SECTION 408(B)(17) OF ERISA
AND SECTION 4975(D)(20) OF THE CODE. ANY PURPORTED TRANSFER OF THIS
CERTIFICATE PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST TO OR
ON BEHALF OF A PLAN WITHOUT THE DELIVERY TO THE TRUSTEE OF A REPRESENTATION
LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT. IF THIS CERTIFICATE
IS A BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED TO HAVE MADE A
REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS PARAGRAPH, AS
APPLICABLE.
C-1
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS
A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
SO LONG AS THE CORRIDOR OR THE SWAP CONTRACT IS IN EFFECT, NO TRANSFER
OF AN LIBOR CERTIFICATE (OTHER THAN A TRANSFER OF AN LIBOR CERTIFICATE TO AN
AFFILIATE OF THE DEPOSITOR (EITHER DIRECTLY OR THROUGH A NOMINEE) IN
CONNECTION WITH THE INITIAL ISSUANCE OF THE CERTIFICATES) SHALL BE MADE UNLESS
THE TRUSTEE SHALL HAVE RECEIVED EITHER (I) A REPRESENTATION FROM THE
TRANSFEREE OF SUCH LIBOR CERTIFICATE ACCEPTABLE TO AND IN FORM AND SUBSTANCE
SATISFACTORY TO THE TRUSTEE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT A PLAN,
OR (II) A REPRESENTATION THAT THE PURCHASE AND HOLDING OF THE LIBOR
CERTIFICATE SATISFY THE REQUIREMENTS FOR EXEMPTIVE RELIEF UNDER XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 OR THE SERVICE PROVIDER
EXEMPTION PROVIDED BY SECTION 408 (B)(17) OF ERISA AND SECTION 4975 (D)(20) OF
THE CODE OR A SIMILAR EXEMPTION. IN THE EVENT THAT SUCH A REPRESENTATION
LETTER IS NOT DELIVERED, ONE OF THE FOREGOING REPRESENTATIONS, AS APPROPRIATE,
SHALL BE DEEMED TO HAVE BEEN MADE BY THE TRANSFEREE'S (INCLUDING AN INITIAL
ACQUIROR'S) ACCEPTANCE OF THE LIBOR CERTIFICATE. IN THE EVENT THAT SUCH
REPRESENTATION IS VIOLATED, SUCH TRANSFER OR ACQUISITION SHALL BE VOID AND OF
NO EFFECT.
C-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [___]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the 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 Initial Certificate
Balances of the denominations of all Certificates of the Class to which this
Certificate belongs) in certain monthly distributions with respect to a Trust
Fund consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc.
(the "Depositor"). The Trust Fund was created pursuant to a Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement") among the Depositor, IndyMac Bank, F.S.B., as seller (in such
capacity, the "Seller"), and as servicer (in such capacity, the "Servicer"),
and Deutsche Bank National Trust Company, as trustee (the "Trustee") and as
supplemental interest 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.
C-3
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities
Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Seller, the Servicer or the Depositor. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.]
So long as the Swap Contract is in effect, neither this certificate nor any
interest herein may be transferred unless the transferee represents to the
Trustee either (i) that such transferee is not a Plan, or (ii) that, in
addition to the transferee satisfying requirements of the Underwriter
Exemption, the purchase and holding of the Certificate satisfy the
requirements for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23, the service provider exemption provided under section
408(b)(17) of ERISA and section 4975(d)(20) of the Code or a similar
exemption. In the event such a representation letter is not delivered, one of
the foregoing representations, as appropriate, shall be deemed to have been
made by the transferee's acceptance of the Certificate. In the event that such
representation is violated, such transfer or acquisition shall be void and of
no effect.
So long as the Corridor or the Swap Contract is in effect, no transfer of an
LIBOR Certificate (other than a transfer of an LIBOR Certificate to an
affiliate of the Depositor (either directly or through a nominee) in
connection with the initial issuance of the Certificates) shall be made unless
the Trustee shall have received either (i) a representation from the
transferee of such LIBOR Certificate acceptable to and in form and substance
satisfactory to the Trustee to the effect that such transferee is not a Plan,
or (ii) a representation that the purchase and holding of the LIBOR
Certificate satisfy the requirements for exemptive relief under XXXX 00-00,
XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23 or the service provider
exemption provided by Section 408 (b)(17) of ERISA and Section 4975 (d)(20) of
the Code or a similar exemption. In the event that such a representation
letter is not delivered, one of the foregoing representations, as appropriate,
shall be deemed to have been made by the transferee's (including an initial
acquiror's) acceptance of the LIBOR Certificate. In the event that such
representation is violated, such transfer or acquisition shall be void and of
no effect.
No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
other benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, a representation that the transferee is an
insurance company which is purchasing such Certificate with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the
C-4
Trustee and addressed to the Trustee and the Servicer to the effect that the
purchase and 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
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of the Trustee, the Servicer or the Trust Fund. Notwithstanding anything else
to the contrary herein, any purported transfer of a Certificate of this Class
to or on behalf of an employee benefit plan subject to ERISA or to Section
4975 of the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-5
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-6
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH
PURCHASER IS AN INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE
TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class A-R
Certificates with respect to a Trust Fund consisting primarily of
a pool of conventional mortgage loans (the "Mortgage Loans")
secured by first liens on one- to four-family residential
properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the 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 Initial Certificate Balances of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee") and as supplemental interest trustee. To the extent
not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R Certificate
at the Corporate Trust Office.
D-2
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
other benefit plan subject to Section 406 of ERISA or Section 4975 of the
Code, or a person investing on behalf of or with plan assets of any such plan,
which representation letter shall not be an expense of the Trustee or the
Servicer, (ii) a representation that the purchaser is an insurance company
which is purchasing such Certificate with funds contained in an "insurance
company general account" (as such term is defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the
purchase and holding of such Certificate are covered under Sections I and III
of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and
addressed to the Trustee and the Servicer to the effect that the purchase and
holding of such Class A-R Certificate will not result in a nonexempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Servicer to any obligation in addition
to those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class A-R
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
Section 4975 of the Code without the opinion of counsel satisfactory to the
Trustee as described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-4
EXHIBIT D
[RESERVED]
D-1
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the 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.
F-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, 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 neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than ten percent (10%) of the Cut-off Date Pool
Principal Balance, the Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Mortgage Loans and all property acquired in
respect of the Mortgage Loans at a purchase price determined as provided in
the Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
F-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_______________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to___
_______________________________________________________________________________
for the account of ____________________________________________________________
account number , or, if mailed by check, to_______________________
Applicable statements should be mailed to _____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
This information is provided by _________________________________________
_______________________________________________________________________________
the assignee named above, or __________________________________________________
as its agent.
X-0
XXXXX XX XXXXXXXXXX )
: ss.:
COUNTY OF _____________ )
On the ___th day __________ of ______________, 20 before me, a notary
public in and for said State, personally appeared , known to me who, being by
me duly sworn, did depose and say that he executed the foregoing instrument.
-----------------------------------
Notary Public
[Notarial Seal]
F-4
EXHIBIT F
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE
CODE, 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 DELIVERS AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
G-1-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class P-[1][2]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Distributors in respect of this Certificate are distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the 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 with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller and Servicer (the "Seller" or the "Servicer," as
appropriate), and Deutsche Bank National Trust Company, as trustee (the
"Trustee") and as supplemental interest trustee. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
G-1-2
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
This Certificate does not have a Certificate Balance or Pass-Through Rate and
will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such (x) transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the transferee is an insurance company that is purchasing
such Certificate with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificate satisfy the requirements for exemptive relief under Sections I and
III of 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, which Opinion of Counsel shall not be an expense of the Trustee, the
Servicer or the Trust Fund, addressed to the Trustee and the Servicer, to the
effect that the purchase and 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.
G-1-3
* * *
G-1-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
G-1-5
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates designated
as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, 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
G-1-6
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 neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than ten percent (10%) of the Cut-off Date Pool
Principal Balance, the Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Mortgage Loans and all property acquired in
respect of the Mortgage Loans at a purchase price determined as provided in
the Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent
with that meaning.
G-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
------------------------------------------------------------------------------.
Dated:
------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________
_____________________________________________________________________________,
for the account of __________________________________________________________,
account number , or, if mailed by check, to ____________________
_____________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
_____________________________________________________________________________,
_____________________________________________________________________________.
This information is provided by _______________________________________,
the assignee named above, or ________________________________________________,
as its agent.
G-1-8
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ___th day of ______________, 20 ____ before me, a notary
public in and for said State, personally appeared
________________________________, known to me who, being by me duly sworn,
did depose and say that he executed the foregoing instrument.
_______________________________________________________________________________
Notary Public
[Notarial Seal]
G-1-9
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,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) an executed assignment of the Mortgage (which may be included in a
blanket assignment or assignments); provided, however, that it has received no
assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
G-2-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:________________________________________
Name:
Title:
G-2-2
EXHIBIT G-2
[RESERVED
G-2-1
EXHIBIT G-3
FORM OF DELAY DELIVERY CERTIFICATION
[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,
Mortgage Pass-Through Certificates, Series 200 -
-----------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Mortgage Loan that is a Delay Delivery
Mortgage Loan listed on Schedule A attached hereto (other than any Mortgage
Loan paid in full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if
the original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from the Seller,
stating that the original Mortgage Note was lost or destroyed,
together with a copy of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) an executed assignment of the Mortgage to "Deutsche Bank National
Trust Company, as trustee under the Pooling and Servicing
Agreement dated as of December 1, 2006, without recourse" (each
such assignment, when duly and validly completed, to be in
recordable form and sufficient to effect the assignment of and
transfer to the assignee thereof, under the Mortgage to which such
assignment relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
G-4-1
(vi) the original or duplicate original lender's title policy and all
riders, if any, thereto or, in the event such original title
policy has not been received from the insurer, any one of an
original title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to be
delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan for which the
Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or (iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (vi) and
(xv) (solely as of origination, not as of the Cut-off Date) of the definition
of the "Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number
and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:________________________________________
Name:
Title:
G-4-2
EXHIBIT G-4
[RESERVED]
G-4-1
EXHIBIT H-1
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,
Mortgage Pass-Through Certificates, Series 200 -
-----------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in Section
2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Seller.
(ii) The original recorded Mortgage.
(iii) An executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the 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) 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.
H-2-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:________________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
[RESERVED]
H-2-1
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of __________________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the
"Certificate") issued pursuant to the Pooling and Servicing Agreement, (the
"Agreement"), relating to the above-referenced Series, by and among IndyMac
MBS, Inc., as depositor (the "Depositor"), IndyMac Bank, F.S.B., as seller and
Servicer and Deutsche Bank National Trust Company, as Trustee. Capitalized
terms used, but not defined herein or in Exhibit 1 hereto, shall have the
meanings ascribed to such terms in the Agreement. The Transferee has
authorized the undersigned to make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and
J-1
agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is _________________.
9. The Transferee has provided to the Trustee a correct, complete and
duly executed tax certification form (i.e., U.S. Internal Revenue Service Form
X-0, X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form
thereto), together with appropriate attachments) as a condition to such
transfer and agrees to update such tax certification form (i) upon expiration
of any such tax certification form, (ii) as required under then applicable
U.S. Treasury regulations and (iii) promptly upon learning that any tax
certification form previously provided has become obsolete or incorrect
10. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
11. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
12. The Transferee is not a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of a U.S.
taxpayer.
13. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
15. Either:
(a) (i) At the time of the transfer, and at the close of each of
the Transferee's two fiscal years preceding the Transferee's fiscal year
of transfer, the Transferee's gross assets for financial reporting
purposes exceed $100 million and its net assets for financial reporting
purposes exceed $10 million. For purposes of the preceding sentence, the
gross assets and net assets of a Transferee do not include any
obligation of any Related Person, as defined below, or any other asset
if a principal purpose for holding or acquiring the other asset is to
permit the Transferee to
K-2
satisfy the conditions of this paragraph 15(a); (ii) The Transferee is
an Eligible Corporation, as defined below, and hereby agrees that any
subsequent transfer of the interest will be to another Eligible
Corporation in a transaction that satisfies this Transfer Affidavit,
including this paragraph 15(a); and (iii) The Transferee has not given
the Transferor any reason to know that the Transferee will not honor the
restrictions on subsequent transfers of the residual interest or that
the Transferee cannot or will not pay any taxes associated with the
residual interest; or
(b)(i) The Transferee is a United States Person; (ii) The present
value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (A) The present value of
any consideration given to the Transferee to acquire the interest; (B)
The present value of the expected future distributions on the interest;
and (C) The present value of the anticipated tax savings associated with
holding the interest as any REMIC generates losses; and (iii) For
purposes of calculating the aforementioned present values: (A) The
transferee has assumed that it pays tax at a rate equal to the highest
rate of tax specified in Code Section 11(b)(1) (unless the Transferee
has been subject to the alternative minimum tax under Code Section 55 in
the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate, in which
case the Transferee can assume that it pays tax at the rate specified in
Code Section 55(b)(1)(B) provided the Transferee states in this Transfer
Affidavit that it is using such alternate rate and that has been subject
to the alternative minimum tax under Code Section 55 in the preceding
two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate):and (B) The Transferee uses
a discount rate equal to the Federal short-term rate prescribed by
section 1274(d) for the month of the transfer and the compounding period
used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
16. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or with plan assets of such a plan;
or (ii) the Transferee is an insurance company that is investing funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and the purchase and holding of the Class R Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60.
* * *
K-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of ________________, 20__
..
----------------------------------------
Print Name of Transferee
By:_____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named _________________, known
or proved to me to be the same person who executed the foregoing instrument
and to be the _______________ of the Transferee, and acknowledged that he
executed the same as his free act and deed and the free act and deed of the
Transferee.
Subscribed and sworn before me this ____ day of _____________, 20__.
-------------------------------
NOTARY PUBLIC
My Commission expires the ___ day
of ____________ , 20___ .
K-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Restricted Certificate, (iv) a rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing large partnership"
as defined in Code Section 775 of (vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
limited liability company, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
K-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Residual Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the
form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not
to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual
Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions
of this Section 5.02(c) shall be absolutely null and void and
shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section
5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the
Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(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
K-6
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.
K-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Transfer Unit, IN[series number]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200-, Class
------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
------------------------------
Print Name of Transferor
By: ___________________________
Authorized Officer
K-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Transfer Unit, IN[series number]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any conditions for transfer set forth in the Pooling and
L-1
Servicing Agreement and (h) if we are a corporation purchasing the
Certificates in the State of California, we have a net worth of at least
$14,000,000 according to our most recent audited financial statements.
Very truly yours,
------------------------------
Print Name of Transferee
By: ___________________________
Authorized Officer
L-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing, Transaction Management
DB Services Tennessee
000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Transfer Unit, IN[series number]
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200-, Class
------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such acquisition, or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account"
(as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and our purchase and holding of the Certificates satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, (e)
we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Certificates, any
interest in the Certificates or any other similar security from, or otherwise
approached or negotiated with respect to the Certificates, any interest in the
Certificates or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any
person to act, in such manner with respect to the Certificates, (f) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the
sale to us is being made in reliance on Rule 144A, (h) we are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates
M-1
may be resold, pledged or transferred only (A) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, or
(B) pursuant to another exemption from registration under the Act and (i) if
we are a corporation purchasing the Certificates in the State of California,
we have a net worth of at least $14,000,000 according to our most recent
audited financial statements.
Very truly yours,
------------------------
Print Name of Transferee
By:_______________________
Authorized Officer
M-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, territory
or the District of Columbia.
________________
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unles Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
M-3
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions, for
the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties 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.
M-4
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
-------------------------------------
Print Name of Buyer
By:__________________________________
Name:
Title:
_____________________________________
Date:
M-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other than
the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
M-6
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
-------------------------------------
Print Name of Buyer
By:__________________________________
Name:
Title:
_____________________________________
Date:
M-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
----------------
Name of
Mortgagor:
Servicer
Loan No.: _________________
Trustee
Name: _________________
Address: _________________
_________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from
Deutsche Bank National Trust Company, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, IndyMac Bank,
F.S.B., as Seller and Servicer and IndyMac MBS, Inc., as Depositor.
------------------------------------------------------------------------------
( ) Mortgage Note dated ______________, 20__, in the original principal
sum of $__________________, made by _________________. payable to, or
endorsed to the order of, the Trustee.
( ) Mortgage recorded on _______________ as instrument no. __________ in
the County Recorder's Office of the County of __________________, State
of _________________ in book/reel/docket __________ of official records
at page/image _____________.
( ) Deed of Trust recorded on ____________________ as instrument no.
________ in the County Recorder's Office of the County of
________________ State of _________________ in book/reel/docket
____________ of official records at page/image __________________.
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
____________________ as instrument no. __________ in the County
Recorder's Office of the County of ____________________, State of
_____________ in book/reel/docket _____________ of official records at
page/image ____________.
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
N-1
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: _________________
Name:
Title:
Date: , 20
N-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated December 1, 2006 among IndyMac
Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
------------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you
as Trustee for IndyMac MBS, Inc., we request the release of the Mortgage Loan
File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
---------------------
Reason for Requesting Documents (check one)
-------------------------------
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have
been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage File
was previously released to us, please release to us our previous receipt on
file with you, as well as an additional documents in your possession relating
to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon return
of all of the above documents to you as Trustee, please acknowledge your
receipt by signing in the space indicated below, and returning this form.
X-0
XXXXXXX XXXX, F.S.B.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
R-2-2
EXHIBIT O
[Reserved]
X-0
Xxxxxxx X-0
[On File with the Trustee]
P-1-1
Exhibit P-2
[On File with the Trustee]
P-2-1
EXHIBIT Q
[Reserved]
Q-1
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of December 1,
2006 (the "Pooling and Servicing Agreement") among IndyMac
MBS, Inc., as Depositor, IndyMac Bank, F.S.B., as Seller
and Servicer, and the undersigned, as Trustee (the
"Trustee")
I, ________________________________, the _______________________ of the
Trustee, certify to the Depositor and the Servicer, and their officers, with
the knowledge and intent that they will rely upon this certification, that:
I have reviewed the report on assessment of the Trustee's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), all reports on Form 10-D containing statements to
certificateholders filed in respect of the period included in the year
covered by the annual report of the Trust Fund (collectively, the
"Distribution Date Statements");
(a) Assuming the accuracy and completeness of the information
delivered to the Trustee by the Servicer as provided in the
Pooling and Servicing Agreement and subject to paragraph (iv)
below, to its knowledge the distribution information determined by
the Trustee and set forth in the Distribution Date Statements
contained in all Form 10-D's included in the year covered by the
annual report of such Trust on Form 10-K for the calendar year
200[ ], is complete and does not contain any material misstatement
of fact as of the last day of the period covered by such annual
report;
(b) Based solely on the information delivered to the Trustee by the
Servicer as provided in the Pooling and Servicing Agreement, the
distribution information required under the Pooling and Servicing
Agreement to be contained in the Trust Fund's Distribution Date
Statements, is included in such Distribution Date Statements;
(c) The Trustee is not certifying as to the accuracy, completeness or
correctness of the information which it received from the Servicer
and did not independently verify or confirm the accuracy,
completeness or correctness of the information provided by the
Servicer;
(d) I am responsible for reviewing the activities performed by the
Trustee as a person "performing a servicing function" under the
Pooling and Servicing Agreement, and based on my knowledge and the
compliance review conducted in preparing the Servicing Assessment
and except as disclosed in the Servicing Assessment or the
Attestation Report, the Trustee has fulfilled its obligations
under the Pooling and Servicing Agreement; and
S-1
(e) The Servicing Assessment and Attestation Report required to be
provided by the Trustee and by Subcontractor, if any, pursuant to
the Pooling and Servicing Agreement, have been provided to the
Servicer and the Depositor. Any material instances of
noncompliance described in such reports have been disclosed to the
Servicer and the Depositor. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date: _________________________
By: ________________________________
Name:
Title:
S-2
EXHIBIT S
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
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 X X
instituted to monitor any
performance or other triggers and
events of default in accordance
with the transaction agreements.
-------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing X X
activities are outsourced
to third parties, policies
and procedures are
instituted to monitor the
third party's performance
and compliance with such
servicing activities.
-------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the NA
transaction agreements to
maintain a back-up servicer
for the Pool Assets are
maintained.
-------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors X
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.
-------------------------------------------------------------------------------
T-1
-------------------------------------------------------------------------------
Reg AB
Reference Servicing Criteria Servicer Trustee Notes
-------------------------------------------------------------------------------
1122(d)(2)(i) Payments on pool assets X X
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.
-------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via X X
wire transfer on behalf
of an obligor or to an
investor are made only by
authorized personnel.
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1122(d)(2)(iii) Advances of funds or X
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.
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1122(d)(2)(iv) The related accounts for X X
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.
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1122(d)(2)(vi) Each custodial account is X X
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.
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1122(d)(2)(vii) Unissued checks are X
safeguarded so as to
prevent unauthorized
access.
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1122(d)(2)(viii) Reconciliations are X X
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.
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2
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Reg AB
Reference Servicing Criteria Servicer Trustee Notes
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1122(d)(3)(i) Reports to investors, X X
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.
-------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are X X
allocated and remitted in
accordance with timeframes,
distribution priority and other
terms set forth in the
transaction agreements.
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1122(d)(3)(ii) Disbursements made to an X X
investor are posted within
two business days to the
Servicer's investor
records, or such other
number of days specified
in the transaction
agreements.
-------------------------------------------------------------------------------
1122(d)(3)(iii) Amounts remitted to investors X X
per the investor reports
agree with cancelled checks,
or other form of payment, or
custodial bank statements.
-------------------------------------------------------------------------------
3
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
Party Contact Information
T-1
EXHIBIT U
[FORM OF] XXXXXXXX-XXXXX CERTIFICATION
(Replacement of Servicer)
Re: IndyMac INDX Mortgage Loan Trust 2006-AR2
The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[ ] that were delivered by the Servicer to the Trustee
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing 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 the light of the
circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required to
be provided by the Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank
National Trust Company, as Trustee and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and except
as disclosed in the Compliance Statement, the Pooling and Servicing Assessment
or the Attestation Report, the Servicer has fulfilled its obligations under
the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Pooling and Servicing Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Servicer and by any
Reporting Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such reports
have been
U-1
disclosed to the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
[SERVICER]
By:______________________________
Name:
Title:
Date:____________________________
U-1
