EXHIBIT 99.1
The Pooling and Servicing Agreement.
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2006
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INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR2
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-AR2
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS.....................................................13
Section 1.01 Definitions.............................................13
Section 1.02 Rules of Construction...................................51
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES..............................................53
Section 2.01 Conveyance of Mortgage Loans............................53
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.........56
Section 2.03 Representations, Warranties, and Covenants of
the Seller and the Servicer.............................58
Section 2.04 Representations and Warranties of the Depositor
as to the Mortgage Loans................................60
Section 2.05 Delivery of Opinion of Counsel in Connection
with Substitutions......................................60
Section 2.06 Execution and Delivery of Certificates..................60
Section 2.07 REMIC Matters...........................................60
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS................61
Section 3.01 Servicer to Service Mortgage Loans......................61
Section 3.02 [Reserved]..............................................61
Section 3.03 Rights of the Depositor, the Trustee and the
Certificate Insurer in Respect of the Servicer..........61
Section 3.04 [Reserved]..............................................62
Section 3.05 Trustee to Act as Servicer..............................62
Section 3.06 Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate
Account; Distribution Account...........................63
Section 3.07 Collection of Taxes, Assessments and Similar
Items; Escrow Accounts..................................66
Section 3.08 Access to Certain Documentation and Information
Regarding the Mortgage Loans............................66
Section 3.09 Permitted Withdrawals from the Certificate
Account and the Distribution Account....................66
Section 3.10 Maintenance of Hazard Insurance; Maintenance of
Primary Insurance Policies..............................68
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements..............................................69
Section 3.12 Realization Upon Defaulted Mortgage Loans...............70
Section 3.13 Trustee to Cooperate; Release of Mortgage Files.........72
Section 3.14 Documents, Records and Funds in Possession of
the Servicer to be Held for the Trustee.................73
Section 3.15 Servicing Compensation..................................73
Section 3.16 Access to Certain Documentation.........................73
Section 3.17 Annual Statement as to Compliance.......................74
Section 3.18 Errors and Omissions Insurance; Fidelity Bonds..........74
Section 3.19 The Swap Contract.......................................74
Section 3.20 Notification of Adjustments.............................75
Section 3.21 Prepayment Charges......................................75
i
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER.....................77
Section 4.01 Advances................................................77
Section 4.02 Priorities of Distribution..............................78
Section 4.03 [Reserved]..............................................87
Section 4.04 Allocation of Net Deferred Interest.....................87
Section 4.05 Monthly Statements to Certificateholders................87
Section 4.06 Carryover Reserve Fund..................................87
Section 4.07 Determination of Pass-Through Rates for LIBOR
Certificates............................................88
Section 4.08 Swap Trust and Swap Account, Cap Trust and Cap
Account.................................................89
Section 4.09 Policy; Rights of the Certificate Insurer...............91
ARTICLE FIVE THE CERTIFICATES...............................................94
Section 5.01 The Certificates........................................94
Section 5.02 Certificate Register; Registration of Transfer
and Exchange of Certificates............................94
Section 5.03 Mutilated, Destroyed, Lost or Stolen
Certificates............................................98
Section 5.04 Persons Deemed Owners...................................98
Section 5.05 Access to List of Certificateholders' Names and
Addresses...............................................99
Section 5.06 Maintenance of Office or Agency.........................99
ARTICLE SIX THE DEPOSITOR AND THE SERVICER.................................100
Section 6.01 Respective Liabilities of the Depositor and the
Servicer...............................................100
Section 6.02 Merger or Consolidation of the Depositor or the
Servicer...............................................100
Section 6.03 Limitation on Liability of the Depositor, the
Seller, the Servicer, and Others.......................100
Section 6.04 Limitation on Resignation of the Servicer..............101
ARTICLE SEVEN DEFAULT......................................................102
Section 7.01 Events of Default......................................102
Section 7.02 Trustee to Act; Appointment of Successor...............103
Section 7.03 Notification to Certificateholders.....................104
ARTICLE EIGHT CONCERNING THE TRUSTEE.......................................105
Section 8.01 Duties of the Trustee..................................106
Section 8.02 Certain Matters Affecting the Trustee..................106
Section 8.03 Trustee Not Liable for Certificates or Mortgage
Loans..................................................108
Section 8.04 Trustee May Own Certificates...........................108
Section 8.05 Trustee's Fees and Expenses............................108
Section 8.06 Eligibility Requirements for the Trustee...............109
Section 8.07 Resignation and Removal of the Trustee.................109
Section 8.08 Successor Trustee......................................110
Section 8.09 Merger or Consolidation of the Trustee.................111
Section 8.10 Appointment of Co-Trustee or Separate Trustee..........111
Section 8.11 Tax Matters............................................112
ARTICLE NINE TERMINATION...................................................116
ii
Section 9.01 Termination upon Liquidation or Purchase of the
Mortgage Loans.........................................116
Section 9.02 Final Distribution on the Certificates.................117
Section 9.03 Additional Termination Requirements....................118
ARTICLE TEN MISCELLANEOUS PROVISIONS.......................................119
Section 10.01 Amendment..............................................119
Section 10.02 Recordation of Agreement; Counterparts.................121
Section 10.03 Governing Law..........................................121
Section 10.04 Intention of Parties...................................121
Section 10.05 Notices................................................121
Section 10.06 Severability of Provisions.............................122
Section 10.07 Assignment.............................................122
Section 10.08 Limitation on Rights of Certificateholders.............123
Section 10.09 Inspection and Audit Rights............................123
Section 10.10 Certificates Nonassessable and Fully Paid..............124
Section 10.11 Official Record........................................124
Section 10.12 Protection of Assets...................................124
Section 10.13 Qualifying Special Purpose Entity......................124
ARTICLE ELEVEN EXCHANGE ACT REPORTING......................................125
Section 11.01 Filing Obligations.....................................125
Section 11.02 Form 10-D Filings......................................125
Section 11.03 Form 8-K Filings.......................................126
Section 11.04 Form 10-K Filings......................................126
Section 11.05 Xxxxxxxx-Xxxxx Certification...........................127
Section 11.06 Form 15 Filing.........................................127
Section 11.07 Report on Assessment of Compliance and
Attestation............................................127
Section 11.08 Use of Subcontractors..................................128
Section 11.09 Amendments.............................................129
iii
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 (excluding Notional Amount
Certificates).................................................A-1
Exhibit B: Form of Subordinated Certificate..............................B-1
Exhibit C: Form of Class A-R Certificate.................................C-1
Exhibit D: Form of Notional Amount Certificate...........................D-1
Exhibit E Form of Reverse of Certificates...............................E-1
Exhibit F: Form of Class P Certificates..................................F-1
Exhibit G-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: Form of Trustee Certification.................................O-1
Exhibit P-1: Form of Cap Agreement for Class 1-A-1B
Certificates..................................................P-1
Exhibit P-2: Form of Cap Agreement for Class 2-A-1
Certificates..................................................P-2
Exhibit P-3: Form of Cap Agreement for Class 2-A-2
Certificates..................................................P-3
Exhibit P-4: Form of Swap Agreement........................................P-4
Exhibit Q Monthly Statement.............................................Q-1
Exhibit R-1 Form of Performance Certification (Subservicer).............R-1-1
Exhibit R-2 Form of Performance Certification (Trustee).................R-2-1
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
iv
THIS POOLING AND SERVICING AGREEMENT, dated as of February 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"),
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 Trust, the Swap
Contract, the Swap Account, the Cap Trust, the Cap Contract, the Cap Account
and the Carryover Reserve Fund) be treated for federal income tax purposes as
comprising four real estate mortgage investment conduits (each, a "REMIC" or,
in the alternative, "REMIC 1", "REMIC 2," "REMIC 3," and the "Master REMIC").
Each Certificate, other than the Class R Certificate, will represent ownership
of one or more regular interests in the Master REMIC for purposes of the REMIC
Provisions. The Class 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 3 Interests (other
than the Class R-3 Interest). REMIC 3 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 Trust, the Swap Contract, the Swap
Account, the Cap Trust, the Cap Contract, the Cap Account and the Carryover
Reserve Fund. Each REMIC 3 Interest (other than the Class R-3 Interest) is
hereby designated as a regular interest in REMIC 3. Each REMIC 2 Interest
(other than the Class R-2 Interest) is hereby designated as a regular interest
in REMIC 2. Each REMIC 1 Interest (other than the Class R-1 Interest) is
hereby designated as a regular interest in REMIC 1. The latest possible
maturity date of all REMIC regular interests created in this Agreement shall
be the Latest Possible Maturity Date.
REMIC 1
The REMIC 1 Interests will have the Initial Principal Balances and Pass-Through
Rates as set forth in the following table:
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Initial Principal Pass-Through
REMIC 1 Interests Balance (1) Rate
----------------- ----------- ----
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Class 1-1-1 $30,204,070.31 (2)
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Class 1-1-2 $29,518,292.09 (2)
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Class 1-1-3 $28,882,660.85 (2)
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Class 1-1-4 $28,260,067.93 (2)
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Class 1-1-5 $27,651,123.40 (2)
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Class 1-1-6 $27,057,015.99 (2)
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Class 1-1-7 $26,473,627.70 (2)
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Class 1-1-8 $25,909,744.28 (2)
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Class 1-1-9 $25,359,427.90 (2)
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Class 1-1-10 $24,823,168.37 (2)
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Class 1-1-11 $24,364,898.84 (2)
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Class 1-1-12 $23,899,059.01 (2)
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Class 1-1-13 $23,376,546.49 (2)
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Class 1-1-14 $22,820,729.31 (2)
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Class 1-1-15 $21,768,310.44 (2)
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Class 1-1-16 $21,712,686.73 (2)
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Class 1-1-17 $21,322,956.97 (2)
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Class 1-1-18 $20,857,376.78 (2)
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Class 1-1-19 $30,234,795.58 (2)
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Class 1-1-20 $35,199,510.90 (2)
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Class 1-1-21 $35,214,531.78 (2)
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Class 1-1-22 $35,004,375.64 (2)
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Class 1-1-23 $34,187,730.04 (2)
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Class 1-1-24 $32,839,870.40 (2)
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Class 1-1-25 $31,651,315.03 (2)
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Class 1-1-26 $31,126,529.62 (2)
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Class 1-1-27 $30,533,277.80 (2)
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2
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Class 1-1-28 $30,264,443.60 (2)
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Class 1-1-29 $28,921,402.31 (2)
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Class 1-1-30 $27,678,378.69 (2)
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Class 1-1-31 $26,422,421.77 (2)
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Class 1-1-32 $25,207,532.82 (2)
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Class 1-1-33 $24,053,124.58 (2)
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Class 1-1-34 $22,969,524.60 (2)
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Class 1-1-35 $465,316,233.12 (2)
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Class 1-1-Support (3) (2)
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Class 1-2-1 $6,244,007.78 (4)
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Class 1-2-2 $6,055,064.64 (4)
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Class 1-2-3 $5,920,987.72 (4)
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Class 1-2-4 $5,791,199.43 (4)
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Class 1-2-5 $5,664,045.74 (4)
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Class 1-2-6 $5,539,079.14 (4)
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Class 1-2-7 $5,419,747.88 (4)
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Class 1-2-8 $5,299,682.20 (4)
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Class 1-2-9 $5,187,331.85 (4)
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Class 1-2-10 $4,970,819.96 (4)
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Class 1-2-11 $4,764,154.52 (4)
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Class 1-2-12 $4,691,742.44 (4)
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Class 1-2-13 $4,599,245.64 (4)
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Class 1-2-14 $4,552,276.52 (4)
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Class 1-2-15 $5,015,113.89 (4)
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3
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Class 1-2-16 $4,992,090.15 (4)
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Class 1-2-17 $4,897,881.03 (4)
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Class 1-2-18 $4,781,404.57 (4)
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Class 1-2-19 $6,735,535.93 (4)
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Class 1-2-20 $7,757,772.06 (4)
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Class 1-2-21 $7,734,594.19 (4)
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Class 1-2-22 $7,668,584.60 (4)
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Class 1-2-23 $7,490,805.03 (4)
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Class 1-2-24 $7,169,682.02 (4)
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Class 1-2-25 $6,846,763.69 (4)
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Class 1-2-26 $6,540,900.15 (4)
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Class 1-2-27 $6,515,321.53 (4)
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Class 1-2-28 $6,251,547.58 (4)
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Class 1-2-29 $6,019,199.49 (4)
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Class 1-2-30 $5,742,182.61 (4)
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Class 1-2-31 $5,478,219.11 (4)
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Class 1-2-32 $5,226,932.88 (4)
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Class 1-2-33 $4,989,915.18 (4)
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Class 1-2-34 $4,766,336.14 (4)
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Class 1-2-35 $96,735,309.21 (4)
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Class 1-2-Support (5) (4)
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Class R-1 (6) (6)
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(1) Scheduled principal, prepayments and Realized Losses from
Loan Group 1 will be allocated first, to the Class 1-1-1 Support Interest and
second, among the Classes designated "1-1-" sequentially to the Class having
the lowest cardinal number following such designation, and second, to the
Class 1-1-Support Interest, in each case until reduced to zero. Scheduled
principal, prepayments and Realized
4
Losses from Loan Group 2 will be allocated first, to the Class 1-2-Support
Interest and second, among the Classes designated "1-2-" sequentially to the
Class having the lowest cardinal number following such designation, and
second, to the Class 1-2-Support Interest, in each case until reduced to zero.
(2) The Net Rate Cap in respect of Loan Group 1, calculated
without reference to the Swap Adjustment Rate.
(3) On each Distribution Date, following the allocation of
Principal Amounts and Realized Losses from Loan Group 1, the principal balance
in respect of the Class 1-1-Support Interest will equal the excess of the
principal balance of the Mortgage Loans over the principal balance in respect
of the remaining REMIC 2 Interests designated as "1-1-".
(4) The Net Rate Cap in respect of Loan Group 2, calculated
without reference to the Swap Adjustment Rate.
(5) On each Distribution Date, following the allocation of
Principal Amounts and Realized Losses from Loan Group 2, the principal balance
in respect of the Class 1-2-Support Interest will equal the excess of the
principal balance of the Mortgage Loans over the principal balance in respect
of the remaining REMIC 1 Interests designated as "1-2-".
(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 Loan Groups as set forth in the following table:
Initial
Principal Pass-Through Corresponding
REMIC 2 Interests Balance Rate Loan Group
----------------- --------- ------------ -------------
Class A-1 (0.9% of SP Loan Group
1) (1) (2) 1
Class B-1 (0.1% of SP Loan Group
1) (1) (2) 1
Class C-1 (Excess of Loan Group
1) (1) (2) 1
Class A-2 (0.9% of SP Loan Group
2) (1) (2) 2
Class B-2 (0.1% of SP Loan Group
2) (1) (2) 2
Class C-2 (Excess of Loan Group
2) (1) (2) 2
Class 2-1-Swap IO (3) (3) 1
Class 2-2-Swap IO (4) (4) 2
Class R-2 (5) (5) N/A
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(1) Each Class A Interest will have a principal balance initially equal to
0.9% of the Subordinated Portion ("SP") of its corresponding Loan Group. Each
Class B Interest will have a principal balance initially equal to 0.1% of the
SP of its corresponding Loan Group. The initial principal balance of each
Class C Interest will equal the excess of the initial aggregate principal
balance of its corresponding Loan Group over the initial aggregate principal
balances of the Class A and Class B Interests corresponding to such Loan
Group.
5
(2) The Net Rate Cap in respect of the corresponding Loan Group calculated
without reference to any Swap Termination Payment.
(3) For each Distribution Date, the REMIC 2 Interest Rate will equal the
excess of the "Fixed Amount" (as defined in the Swap Contract) with respect to
such Distribution Date over the "Floating Amount" (as defined in the Swap
Contract) with respect to such Distribution Date on a notional balance equal
to the sum of the principal balances of each REMIC 1 Regular Interest
designated "1-1-" whose cardinal number following such designation (x.x. -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.
(4) For each Distribution Date, the REMIC 2 Interest Rate will equal the
excess of the "Fixed Amount" (as defined in the Swap Contract) with respect to
such Distribution Date over the "Floating Amount" (as defined in the Swap
Contract) with respect to such Distribution Date on a notional balance equal
to the sum of the principal balances of each REMIC 1 Regular Interest
designated "1-2-" whose cardinal number following such designation (x.x. -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.
(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.
On each Distribution Date, the Available Funds shall be distributed with
respect to the REMIC 2 Interests in the following manner:
(1) Interest is to be distributed with respect to each REMIC 2 Interest
according to the formulas described above;
(2) If no Cross-Over Situation exists with respect to any Class of Interests,
then Principal Amounts, Deferred Interest and Realized Losses arising with
respect to each Loan Group will be allocated: first to cause the Loan Group's
corresponding Class A and Class B to equal, respectively, 0.9% of the SP and
0.1% of the SP; and second to the Loan Group's corresponding Class C Interest;
(3) If a Cross-Over Situation exists with respect to the Class A and Class B
Interests then:
(a) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is less than the Net Rate Cap in respect of the
Subordinate Certificates calculated without reference to any Swap
Termination Payments (the "Subordinate WAC Cap") , Principal Relocation
Payments will be made proportionately to the outstanding Class A
Interests prior to any other distributions of principal from each such
Loan Group; and
(b) if the Calculation Rate in respect of the outstanding Class A and
Class B Interests is greater than the Subordinate WAC Cap, Principal
Relocation Payments will be made proportionately to the outstanding
Class B Interests prior to any other distributions of principal from
each such Loan Group.
6
In case of either (a) or (b), Principal Relocation Payments will be made so as
to cause the Calculation Rate in respect of the outstanding Class A and Class
B Interests to equal the Subordinate WAC Cap. With respect to each Loan Group,
if (and to the extent that) the sum of (a) the principal payments comprising
the Principal Amount received during the Due Period and (b) the Realized
Losses, are insufficient to make the necessary reductions of principal on the
Class A and Class B Interests, then interest will be added to the Loan Group's
other REMIC 2 Interests that are not receiving Principal Relocation Payments,
in proportion to their principal balances.
(c) Unless required to achieve the Calculation Rate, the outstanding
aggregate Class A and Class B Interests for all Loan Groups will not be
reduced below 1% of the excess of (i) the aggregate outstanding
principal balances of the Mortgage Loans as of the end of any Due Period
(reduced by Principal Prepayments received after the Due Period that are
to be distributed on the Distribution Date related to the Due Period)
over (ii) the Certificate Balance of the Senior Certificates for all
Loan Groups as of the related Distribution Date (after taking into
account distributions of principal on such Distribution Date).
If (and to the extent that) the limitation in paragraph (c) prevents the
distribution of principal to the Class A and Class B Interests of a Loan
Group, and if the Loan Group's Class C Interest has already been reduced to
zero, then the excess principal from that Loan Group will be paid to the Class
C Interests of the other Loan Group, the aggregate Class A and Class B
Interests of which are less than 1% of the SP. If the pass through rate in
respect of the Class C Interest that receives such payment is less than the
pass through rate in respect of the Class C that corresponds to the Loan Group
that makes the payment, then the payment will be treated by the REMIC 2 as a
Realized Loss. Conversely, if the pass through rate in respect of the Class C
Interest that receives such payment is greater than the pass through rate in
respect of the Class C that corresponds to the Loan Group that makes the
payment, then the payment will be treated by the REMIC 2 as a reimbursement
for prior Realized Losses.
REMIC 3
The REMIC 3 Interests will have the Initial Principal Balances, Pass-Through
Rates and Corresponding Certificate Classes as set forth in the following
table:
Principal Pass-Through Corresponding Certificates
REMIC 3 Interests Balances Rate Classes
----------------- -------- ------------ --------------------------
Class 3-1-A-1A (1) (2) Class 1-A-1A
Class 3-1-A-1B (1) (2) Class 1-A-1B
Class 3-1-A-2 (1) (2) Class 1-A-2
Class 3-1-A-3A (1) (2) Class 1-A-3A
Class 3-1-A-3B (1) (2) Class 1-A-3B
Class 3-2-A-1 (1) (2) Class 2-A-1
Class 3-2-A-2 (1) (2) Class 2-A-2
7
Class 3-M-1 (1) (2) Class M-1
Class 3-M-2 (1) (2) Class M-2
Class 3-M-3 (1) (2) Class M-3
Class 3-M-4 (1) (2) Class M-4
Class 3-M-5 (1) (2) Class M-5
Class 3-M-6 (1) (2) Class M-6
Class 3-M-7 (1) (2) Class M-7
Class 3-M-8 (1) (2) Class M-8
Class 3-M-9 (1) (2) Class M-9
Class 3-Accrual (1) (2) N/A
Class 3-Swap IO (3) (3) N/A
Class R-3 (4) (4) N/A
---------------
(1) On each Distribution Date, Principal Amounts, Net Deferred Interest and
Realized Losses will be allocated to the REMIC 3 Interests in such a manner
that, following such allocations: (i) the principal balances of the REMIC 3
Interests (other than the Class 3-Accrual, Class 3-Swap IO and Class R-3
Interests) will equal 50% of the Certificate Balance of their Corresponding
Certificates for such Distribution Date, (ii) the Class 1-Accrual Interest
will have a principal balance equal to 50% of the aggregate principal balance
of the Mortgage Loans plus 50% of the Overcollateralized Amount.
(2) The excess of: (a) weighted average Adjusted Net Mortgage Rate on the
Mortgage Loans as of the Due Date in the prior calendar month (after giving
effect to principal prepayments received in the Prepayment Period related to
that prior Due Date) over (b) the sum of (i) (A) the Net Swap Payment payable
to the Swap Counterparty with respect to that Distribution Date times a
fraction, the numerator of which is 360 and the denominator of which is the
actual number of days in the related Accrual Period, divided by (B) the
aggregate Stated Principal Balance of the Mortgage Loans as of the due date in
the prior calendar month, (ii) the 1-A-3B Policy Premium Rate and (iii) the
Class 2-A-2 Policy Premium Rate. For purposes of the foregoing calculation,
the 1-A-3B Policy Premium Rate and Class 2-A-2 Policy Premium Rate are
calculated by revising clause (i)(B) thereof to read "the denominator of which
is equal to the aggregate Stated Principal Balance of the Mortgage Loans as of
the Due Date in the prior calendar month".
(3) For each Distribution Date, 100% of the cash flow in respect of the Class
2-1-Swap IO Interest and Class 2-2-Swap IO Interest.
(4) The Class R-3 Interest is the sole class of residual interest in REMIC 3.
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 R Certificates) is hereby designated a
8
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
Class Certificate Pass-Through Minimum Multiples in
Designation Balance Rate Denomination Excess of Minimum
-----------------------------------------------------------------------------
Class 1-A-1A $527,119,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class 1-A-1B $341,043,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class 1-A-2 $318,326,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class 1-A-3A $75,388,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class 1-A-3B $79,434,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class 2-A-1 $182,180,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class 2-A-2 $99,288,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-1 $43,764,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-2 $11,378,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-3 $8,752,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-4 $8,752,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-5 $9,628,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-6 $8,752,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-7 $8,752,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-8 $8,752,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class M-9 $8,752,000 Variable(1) $ 25,000 $1,000
-----------------------------------------------------------------------------
Class C (2) (3) N/A N/A
-----------------------------------------------------------------------------
Class P $100.00 (4) N/A N/A
-----------------------------------------------------------------------------
Class R N/A N/A 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 lesser of (i) LIBOR for that Distribution Date plus the Pass-Through
Margin for that Class and that Interest Accrual Period and (ii) the
applicable Net Rate Cap for that Class for that Distribution Date. Solely
for federal income tax purposes, the Pass-Through Rate on the first three
Distribution Dates will equal the fixed rate produced by the sum of LIBOR
and the applicable Pass-Through Margin for such Distribution Date, and for
all subsequent Distribution Dates, all monies received by such Certificates
in excess of the Net Rate Cap (calculated without regard to Swap
Termination Payments) will be treated as paid pursuant to a limited
recourse interest rate cap agreement as provided in Section 8.11 hereof.
2. For federal income tax purposes, the Class C Certificates will represent
two 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, and (ii) a class that is
not entitled to principal and has a notional balance equal to the sum of
the principal balances of the REMIC 3 Regular Interests (excluding the
Class R-3 and Class 3-Swap IO Interests).
9
3. For each Accrual Period the Class C Certificates are entitled to the "Class
C Distributable Amount," which shall consist of (i) a specified portion of
the interest on each of the REMIC 3 Regular Interests (excluding the Class
R-3 and Class 3-Swap IO Interests) in an amount equal to the excess of: (a)
over the weighted average pass-through rate in respect of such REMIC 3
Regular Interests over (b) the product of two and the weighted average
pass-through rate in respect of such REMIC 3 Regular Interests treating
each of the REMIC 3 Accretion Directed Classes as subject to a cap and a
floor equal to the pass-through rate in respect of the Corresponding Class
Certificate of each such REMIC 3 Regular Interest and the Class 3-Accrual
Interest as subject to a cap equal to 0.00%, (ii) all accruals of interest
in respect of the Class 3-Swap IO Interest and (iii) collections of
scheduled principal and principal prepayments allocated to the class of
regular interests referenced in clause (i) of Note (2) above.
4. The Class P Certificates will not bear interest and will be entitled to all
Prepayment Charges collected in respect of the Mortgage Loans.
The foregoing REMIC structure is intended to cause all of the cash from
the Mortgage Loans to flow through to the Master REMIC as cash flow on a REMIC
regular interest, without creating any shortfall--actual or potential (other
than for credit losses) to any REMIC regular interest.
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.
COFI Certificates...................... None.
Components............................. None.
Component Certificates................. None.
10
Delay Certificates..................... None.
ERISA-Restricted Certificates.......... The Private Certificates; and
Certificates of any Class that
ceases to satisfy the rating
requirements of the Underwriter's
Exemption.
Group 1 Senior Certificates............ Class 1-A-1A, Class 1-A-1B, Class
1-A-2, Class 1-A-3A and Class 1-A-3B
Certificates.
Group 1 Certificates................... Group 1 Senior Certificates and the
portion of the Subordinated
Certificates related to Loan Group 1.
Group 2 Senior Certificates............ Class 2-A-1 and Class 2-A-2
Certificates.
Group 2 Certificates................... Group 2 Senior Certificates and the
portion of the Subordinated
Certificates related to Loan Group 2.
LIBOR Certificates..................... Group 1 Senior Certificates, Group 2
Senior Certificates and the
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.................. The Private Certificates.
Planned Principal Classes.............. None.
Principal Only Certificates............ None.
Principal Only Components.............. None.
Private Certificates................... Class C, Class P and Class R
Certificates.
Rating Agencies........................ Xxxxx'x and S&P.
Regular Certificates................... All Classes of Certificates other
than the Class R Certificates.
Residual Certificate................... Class R Certificates.
Senior Certificates.................... Class 1-A-1A, Class 1-A-1B, Class
1-A-2, Class 1-A-3A, Class 1-A-3B,
Class 2-A-1 and Class
11
2-A-2 Certificates.
Senior Certificate Group............... The Group 1 Senior Certificates or
the Group 2 Senior 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.
12
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: With respect to any Accrual Certificates and any
Distribution Date prior to the Accrual Termination Date, the amount allocable
to interest on such Class of Accrual Certificates with respect to such
Distribution Date pursuant to Section 4.02(a)(i).
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: As to a Loan Group, 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 in
such Loan Group that were due during the related Due Period and not received
as of the close of business on the related Determination Date, together with
an amount equivalent to interest on each REO Property, net of any net income
from such REO Property, less the aggregate amount of any such delinquent
payments that the 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
13
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.
Ambac: Ambac Assurance Corporation, organized and crated under the
laws of the state of Wisconsin, or any successor thereto.
Amount Held for Future Distribution: As to any Distribution Date and the
Mortgage Loans in a Loan Group, the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date on account
of (i) Principal Prepayments received after the last day of the related
Prepayment Period and Liquidation Proceeds and Subsequent Recoveries relating
to the Mortgage Loans in such Loan Group received in the month of such
Distribution Date and (ii) all Scheduled Payments relating the Mortgage Loans
in such Loan Group due after the related Due Date.
Applied Realized Loss Amount: For any Distribution Date, the amount by
which the aggregate Class Certificate Balance of the Offered Certificates
exceeds the Pool Stated Principal Balance for that Distribution Date. after
giving effect to all Realized Losses incurred with respect to the Mortgage
Loans during the related Due Period and distributions of principal on that
Distribution Date.
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 and the Mortgage Loans in a
Loan Group, the sum of (a) the aggregate amount held in the Certificate
Account at the close of business on the related Determination Date, including
any Subsequent Recoveries with respect to Mortgage Loans in a Loan Group, 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 related Advance, (c) in
connection with Defective Mortgage Loans in such Loan Group, as applicable,
the aggregate of the Purchase Prices and Substitution Adjustment Amounts
deposited on the related Distribution Account Deposit Date, and (d) any amount
deposited on the related Distribution Account Deposit Date pursuant to Section
3.10. The Holders of the Class P Certificates will be entitled to all
Prepayment Charges received on the Mortgage Loans and such amounts will not be
available for distribution to the Holders of any other Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: Not applicable.
Bankruptcy Loss: Not applicable.
Bankruptcy Loss Coverage Amount: Not applicable.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
14
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 Certificate Insurer or banking institutions in the City of
New York, New York, the State of California or the city in which the Corporate
Trust Office of the Trustee is located are authorized or obligated by law or
executive order to be closed.
Calculation Rate: For each Distribution Date, the product of (i) 10 and
(ii) the weighted average rate of the outstanding Class A-1, Class A-2, Class
B-1 and Class B-2 Interests, treating each of the Class A-1 and Class A-2
Interests as having an interest rate equal to 0.00% per annum.
Cap Counterparty: IXIS Financial Products Inc.
Cap Account: The separate Eligible Account created and maintained by the
Cap Trustee pursuant to Section 3.06(f) in the name of the Trustee for the
benefit of the Holders of the Class 1-A-1B, Class 2-A-1 and Class 2-A-2
Certificates and designated "Deutsche Bank National Trust Company in trust for
registered holders of IndyMac INDX Mortgage Loan Trust 2006-AR2, Mortgage
Pass-Through Certificates, Series 2006-AR2, [Class 1-A-1B], Class 2-A-1][Class
2-A-2]. Funds in the Cap Account shall be held in trust for the Holders of the
related Class of Certificates for the uses and purposes set forth in this
Agreement. The Cap Account will not be an asset of any REMIC.
Cap Certificates: The Class 1-A-1B, Class 2-A-1 and Class 2-A-2
Certificates.
Cap Contract: The interest rate cap agreements between the Cap Trust and
the Cap Counterparty related to one of the following Classes of Certificates:
(x) the Class 1-A-1B Certificates, (y) the Class 2-A-1 Certificates and (z)
the Class 2-A-2 Certificates, a form of each of which is attached to this
Agreement as Exhibits P-1, P-2 and P-3.
Cap Trust: The trust fund established pursuant to Section 4.08.
Cap 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 Cap 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 servicing as successor
trustee under this Agreement.
Carryover Reserve Fund: The Separate Eligible Account created and
maintained by the trustee pursuant to Section 4.06.
Carryover Shortfall Amount: For purposes of the Policy, has the same
meaning as Net Rate Carryover.
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-AR2,
Mortgage Pass-Through Certificates, Series 2006-AR2."
Certificate Balance: With respect to any Certificate 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) minus the sum of (i) all distributions of principal previously
made with
15
respect thereto and (ii) all Applied Realized Loss Amounts allocated
to that Certificate and, in the case of any Subordinated Certificates, all
other reductions in Certificate Balance previously allocated to that
Certificate pursuant to Section 4.05, (B) plus the amount of Net Deferred
Interest allocated to that Certificate pursuant to Section 4.04 prior to the
date of determination and (C) in the case of any Class of Accrual
Certificates, plus the Accrual Amount added to the Class Certificate Balance
of such Class prior to such date.
Certificate Group: Either the Group 1 Certificates or the Group 2
Certificates.
Certificate Insurer: Ambac in its capacity as insurer under the
Policy, and any permitted successor or assign.
Certificate Insurer Contact Person: The officer designated by the
Servicer to provide information to the Certificate Insurer pursuant to
Section 4.10(i).
Certificate Insurer Default: As defined in Section 4.10(l).
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.
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.
Class 1-A-3B Available Funds: Has the meaning set forth in the Policy.
Class 1-A-3B Policy Premium Rate: For each Distribution Date and Loan
Group is the product of (i) a fraction, expressed as a percentage, (A) the
numerator of which is equal to the product of the monthly premium rate for the
Policy for that Distribution Date and the Class Certificate Balance of the
Class 1-A-3B Certificates immediately prior to that Distribution Date, and (B)
the denominator of which is the denominator of which is equal to the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans as of the Due Date in
the prior calendar month and (ii) 12.
16
Class 2-A-2 Available Funds: Has the meaning set forth in the Policy.
Class 2-A-2 Policy Premium Rate: For each Distribution Date and Loan
Group is the product of (i) a fraction, expressed as a percentage, (A) the
numerator of which is equal to the product of the monthly premium rate for the
Policy for that Distribution Date and the Class Certificate Balance of the
Class 2-A-2 Certificates immediately prior to that Distribution Date, and (B)
the denominator of which is the denominator of which is equal to the aggregate
Stated Principal Balance of the Group 2 Mortgage Loans as of the Due Date in
the prior calendar month and (ii) 12.
Class A Interest: Each of the Class A-1 and Class A-2 Interests.
Class B Interest: Each of the Class B-1 and Class B-2 Interests.
Class C Interest: Each of the Class C-1 and Class C-2 Interests.
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.
Exclusively for purposes of determining any subrogation rights of the
Certificate Insurer arising under Section 4.10, the "Class Certificate
Balance" of the Class 1-A-3B and Class 2-A-2 Certificates will not be reduced
by the amount of any payments made by the Certificate Insurer in respect to
principal on those Certificates under the Policy, except to the extent such
payment has been reimbursed to the Certificate Insurer pursuant to the
provisions of this Agreement.
Class M-1 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, after giving effect to distributions on that Distribution
Date and after allocation of any Net Deferred Interest for that Distribution
Date, and (ii) the Class Certificate Balance of the Class M-1 Certificates
after allocation of any Net Deferred Interest for that Distribution Date but
prior to any distribution on that Distribution Date exceeds (y) the Class M-1
Target Amount for that Distribution Date.
Class M-1 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 87.75%; and (ii) thereafter, 90.20% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period exceeds (2) the OC Floor.
Class M-2 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates and Class M-1 Certificates, in each case after giving
effect to distributions on that Distribution Date, and after allocation of
any Net Deferred Interest for that Distribution Date, (ii) the Class
Certificate Balance of the Class M-2 Certificates after allocation of any Net
Deferred Interest for that Distribution Date but prior to any distributions on
that Distribution Date exceeds (y) the Class M-2 Target Amount for that
Distribution Date.
Class M-2 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 89.38%; and (ii) thereafter, 91.50% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate
17
Stated Principal Balance for that Distribution Date determined as of the last
day of the related Due Period exceeds (2) the OC Floor.
Class M-3 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, Class M-1 Certificates and Class M-2 Certificates, in
each case after giving effect to distributions on that Distribution Date, and
after allocation of any Net Deferred Interest for that Distribution Date, and
(ii) the Class Certificate Balance of the Class M-3 Certificates after
allocation of any Net Deferred Interest for that Distribution Date but prior
to any distribution on that Distribution Date exceeds (y) the Class M-3 Target
Amount for that Distribution Date.
Class M-3 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 90.63%; and (ii) thereafter, 92.50% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
Class M-4 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, Class M-1 Certificates, Class M-2 Certificates and Class
M-3 Certificates, in each case after giving effect to distributions on that
Distribution Date and after allocation of any Net Deferred Interest for that
Distribution Date,, and (ii) the Class Certificate Balance of the Class M-4
Certificates after allocation of any Net Deferred Interest for that
Distribution Date but prior to any distribution on that Distribution Date
exceeds (y) the Class M-4 Target Amount for that Distribution Date.
Class M-4 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 91.88%; and (ii) thereafter, 93.50% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
Class M-5 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates and Class M-4 Certificates, in each case after giving effect to
distributions on that Distribution Date and after allocation of any Net
Deferred Interest for that Distribution Date,, and (ii) the Class Certificate
Balance of the Class M-5 Certificates after allocation of any Net Deferred
Interest for that Distribution Date but prior to any distribution on that
Distribution Date exceeds (y) the Class M-5 Target Amount for that
Distribution Date.
Class M-5 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 93.25%; and (ii) thereafter, 94.60% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
18
Class M-6 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates and Class M-5 Certificates, in each case
after giving effect to distributions on that Distribution Date, and after
allocation of any Net Deferred Interest for that Distribution Date, and (ii)
the Class Certificate Balance of the Class M-6 Certificates after allocation
of any Net Deferred Interest for that Distribution Date but prior to any
distribution on that Distribution Date exceeds (y) the Class M-6 Target Amount
for that Distribution Date.
Class M-6 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 94.50%; and (ii) thereafter, 95.60% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
Class M-7 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates and Class M-6
Certificates, in each case after giving effect to distributions on that
Distribution Date, and after allocation of any Net Deferred Interest for that
Distribution Date, and (ii) the Class Certificate Balance of the Class M-7
Certificates after allocation of any Net Deferred Interest for that
Distribution Date but prior to any distribution on that Distribution Date
exceeds (y) the Class M-7 Target Amount for that Distribution Date.
Class M-7 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 95.75%; and (ii) thereafter, 96.60% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
Class M-8 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any,
by which (x) the sum of (i) the aggregate Class Certificate Balance of the
Senior Certificates, Class M-1 Certificates, Class M-2 Certificates, Class M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates and Class M-7 Certificates, in each case after giving effect to
distributions on that Distribution Date, and (ii) the Class Certificate
Balance of the Class M-8 Certificates after allocation of any Net Deferred
Interest for that Distribution Date but prior to any distribution on that
Distribution Date exceeds (y) the Class M-8 Target Amount for that
Distribution Date.
Class M-8 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 97.00%; and (ii) thereafter, 97.60% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
Class M-9 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution
19
Date, to the amount, if any, by which (x) the sum of (i) the aggregate Class
Certificate Balance of the Senior Certificates, Class M-1 Certificates, Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates and Class M-8
Certificates, in each case after giving effect to distributions on that
Distribution Date, and after allocation of any Net Deferred Interest for that
Distribution Date, and (ii) the Class Principal Amount of the Class M-9
Certificates after allocation of any Net Deferred Interest for that
Distribution Date but prior to any distribution on that Distribution Date
exceeds (y) the Class M-9 Target Amount for that Distribution Date.
Class M-9 Target Amount: For any Distribution Date, an amount equal to
the lesser of (a) the product of (1) (i) for each Distribution Date prior to
the Distribution Date in March 2012, 98.25%; and (ii) thereafter, 98.60% and
(2) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period and (b) the amount, if any, by which
(1) the aggregate Stated Principal Balance for that Distribution Date
determined as of the last day of the related Due Period exceeds (2) the OC
Floor.
Closing Date: February 28, 2006.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Collection Account: As defined in Section 3.06(c).
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.375% 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-IN06A2
(IndyMac MBS, Inc., IndyMac INDX
20
Mortgage Loan Trust 2006-AR2, Mortgage Pass-Through Certificates, Series
2006-AR2), and which is the address to which notices to and correspondence
with the Trustee should be directed.
Cross-over Situation: For any Distribution Date and for any Loan Group
(after taking into account principal distributions on such Distribution Date)
a Cross-Over Situation exists with respect to the Class A and Class B
Interests of the Loan Group if such interests in the aggregate are less than
1% of the Subordinated Portion of the related Loan Group.
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 Stated Principal Balance, as set forth below:
Distribution Date Percentage
----------------- ----------
March 2009 - February 2010....... 0.45% with respect to March 2009, plus an
additional 1/12th of 0.30% for each
month thereafter through February 2010
March 2010 - February 2011....... 0.75% with respect to March 2010, plus an
additional 1/12th of 0.35% for each
month thereafter through February 2011
March 2011 - February 2012....... 1.10% with respect to March 2011, plus an
additional 1/12th of 0.40% for each
month thereafter through February 2012
March 2012 - February 2013....... 1.50% with respect to March 2012, plus an
additional 1/12th of 0.15% for each
month thereafter through February 2013
March 2013 and thereafter........ 1.65%
Current Interest: With respect to each Class of LIBOR Certificates and
each Distribution Date, is (x) the 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
minus (y) the Net Deferred Interest, if any, allocated to that Class for that
Distribution Date.
Cut-off Date: February 1, 2006.
Cut-off Date Pool Stated Principal Balance: $1,750,572,020.94.
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
21
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.
Deferred Interest: With respect to each Mortgage Loan and each related
Due Date, the excess, if any, of the amount of interest accrued on such
Mortgage Loan from the preceding Due Date to such Due Date over the monthly
payment due or received for such Due Date.
Deficiency Amount: With respect to
(A) each Distribution Date prior to the Last Scheduled Distribution Date
and the Class 1-A-3B and Class 2-A-2 Certificates, an amount equal to the sum
of (i) the excess, if any, of (a) the amount of current interest on the Class
1-A-3B or Class 2-A-2 Certificates net (without duplication) of any interest
shortfalls resulting from Net Interest Shortfalls, Net Rate Carryover, Net
Deferred Interest or Deferred Interest over (b) the Class 1-A-3B Available
Funds or the Class 2-A-2 Available Funds for that Distribution Date, and (ii)
the amount of Realized Losses allocable to the Class 1-A-3B or Class 2-A-2
Certificates; and
(B) the Last Scheduled Distribution Date and the Class 1-A-3B and Class
2-A-2 Certificates, an amount equal to the sum of (i) the excess, if any, of
(a) the amount of current interest on the Class 1-A-3B or Class 2-A-2
Certificates net (without duplication) of any interest shortfalls resulting
from Net Interest Shortfalls, Net Rate Carryover, Net Deferred Interest or
Deferred Interest over (b) the Class 1-A-3B Available Funds or the Class 2-A-2
Available Funds for that Distribution Date and (ii) the excess, if any, of the
Class Certificate Balance of all outstanding Class 1-A-3B and Class 2-A-2
Certificates due on such Last Scheduled Distribution Date after taking into
account all payments to be made to the Class 1-A-3B and Class 2-A-2
Certificates on such date.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the
then outstanding indebtedness under the Mortgage Loan, or any reduction in the
amount of principal to be paid in connection with any Scheduled Payment that
results in a permanent forgiveness of principal, which valuation or reduction
results from an order of the court that is final and non-appealable in a
proceeding under the Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the
form of Exhibit G-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 in each Loan Group, not later
than the Closing Date and
(B) for the remaining 30% of the Mortgage Loans in each Loan Group, not
later than five Business Days following the Closing Date.
22
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 Three Month Delinquency Rate as of the
last day of the immediately preceding month equals or exceeds, for
Distribution Dates prior to March 2012, 33.00%, and, for Distribution Dates on
or after March 2012, 40.00% of the Senior Enhancement Percentage for such
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.
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-AR2, Mortgage Pass-Through Certificates, Series
2006-AR2." 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 March 2006.
23
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 maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of
which (or, in the case of a depository institution or trust company that is
the principal subsidiary of a holding company, the debt obligations of the
holding company, but only if Xxxxx'x is not a Rating Agency) have the highest
short-term ratings of each Rating Agency at the time any amounts are held on
deposit therein, or
(ii) [reserved], or
(iii) a trust account or accounts maintained with the trust department
of a federal or state chartered depository institution or trust company,
acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Cashflow: With respect to any Distribution Date (i) the Interest
Remittance Amount remaining after the distribution interest to the Holders of
the Certificates for that Distribution Date, (ii) the Overcollateralization
Release Amount and (iii) any Principal Distribution Amount for that
Distribution Date remaining after distributions of the principal to the
Offered Certificates.
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
24
(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 sum of (a) the related
Servicing Fee Rate and (b) the Trustee Fee Rate.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as
a Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b)
the address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac 2006-AR2, 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.
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 MTA on each Adjustment
Date in accordance with the terms of the Mortgage Note used to determine the
Mortgage Rate for such Mortgage Loan.
Group 1 Certificates: As specified in the Preliminary Statement.
25
Group 1 Excess Cashflow Percentage: For any Distribution Date, the
amount of the Excess Cashflow attributable to Loan Group 1 divided by the
Excess Cashflow for that Distribution Date
Group 1 Mortgage Loan: Any Mortgage Loan in Loan Group 1.
Group 1 Senior Certificates: As specified in the Preliminary Statement.
Group 2 Certificates: As specified in the Preliminary Statement.
Group 2 Excess Cashflow Percentage: For any Distribution Date, the
amount of the Excess Cashflow attributable to Loan Group 2 divided by the
Excess Cashflow for that Distribution Date
Group 2 Mortgage Loan: Any Mortgage Loan in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary Statement.
Hedged Certificates: Any of the Senior Certificates other than the
Class 2-A-2B Certificates.
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: 4.58063% 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, February 25, 2006) 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.
Interest Carry Forward Amount: With respect to each Class of LIBOR
Certificates and each Distribution Date, is the sum of
(i) the excess of:
(a) Current Interest for that Class with respect to prior
Distribution Dates, over
26
(b) the amount actually distributed to that Class with respect
to interest on prior Distribution Dates; and
(ii) interest for the applicable Interest Accrual Period on the amount
described above based on the Pass-Through Rate for that Class of LIBOR
Certificates.
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 Funds: For any Distribution Date and Loan Group, the Interest
Remittance Amount for that Loan Group minus the related portion of the Trustee
Fee for that Distribution Date.
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 and Loan Group
is :
(a) the sum, without duplication, of:
(1) all interest on the Mortgage Loans in that Loan Group
due on the related Due Date and received on or prior to the
related Determination Date, less the related Servicing Fees,
(2) all interest on Principal Prepayments on the Mortgage
Loans in that Loan Group, other than Prepayment Interest Excess,
(3) all Advances relating to interest in respect of the
Mortgage Loans in that Loan Group,
(4) amounts paid by the Servicer in respect of Compensating
Interest for that Loan Group, and
(5) Liquidation Proceeds on the Mortgage Loans in that Loan
Group received during the related Prepayment Period (to the extent
such Liquidation Proceeds relate to interest),
minus
(b) all Advances in respect of the Mortgage Loans in that Loan
Group relating to interest and certain expenses reimbursed since the
prior Due Date,
plus
(c) the lesser of (i) the Principal Prepayment Amount for that
Loan Group and Distribution Date and (ii) the Deferred Interest for that
Distribution Date.
Interest Settlement Rate: As defined in Section 4.08.
Item 1119 Party: The Depositor, the Seller, the Servicer, the Trustee,
the Swap Counterparty, the Cap Counterparty, the Certificate Insurer and any
other material transaction party, as identified in Exhibit T, as updated
pursuant to Section 11.04.
27
Last Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any
of the Mortgage Loans.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date. For purposes of the
Policy, the Distribution Date occurring in April 2046 with respect to the
Class 1-A-3B Certificates and in February 2046 with respect to the Class 2-A-2
Certificates.
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.
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 Group: Either Loan Group 1 and Loan Group 2, as applicable.
Loan Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans
on the Mortgage Loan Schedule.
Loan Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans
on the Mortgage Loan Schedule.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal
balance of the related Mortgage Loan at that date of determination and whose
denominator is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
28
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.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moneyline Telerate Page 3750: The display page currently so designated
on the Moneyline Telerate Information Services, Inc. (or any page replacing
that page on that service for the purpose of displaying London inter-bank
offered rates of major banks).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be
Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Residential Loan Monitoring Group, or any other address that
Moody's furnishes to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
Mortgage Loans: Such of the 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 by Loan Group:
(i) the loan number;
29
(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 first Payment Adjustment Date after the Cut-off Date;
(xi) a code indicating when the Mortgage Index is determined;
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling, (b) a dwelling in a
PUD, (c) a condominium unit, (d) a two- to four-unit
residential property, or (e) a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender PMI
Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest premium
charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan;
(xxiv) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan;
30
(xxv) 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 and for each Loan Group.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time (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.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the OTS.
Net Deferred Interest: With respect to each Loan Group and Distribution
Date, the excess, if any, of the amount of Deferred Interest that accrued on
the Mortgage Loans in that Loan Group from the preceding Due Date to the Due
Date in the month of such Distribution Date, over any Principal Prepayment
Amount for those Mortgage Loans during the related Prepayment Period.
Net Interest Shortfall: With respect to any Distribution Date and Loan
Group, an amount equal to any Net Prepayment Interest Shortfalls for that Loan
Group and Distribution Date and the amount of interest that would otherwise
have been received with respect to any Mortgage Loan in that Loan Group that
was the subject of a Relief Act Reduction.
Net Prepayment Interest Shortfall: As to any Distribution Date and Loan
Group, the amount, if any, by which the aggregate of Prepayment Interest
Shortfalls for such Loan Group exceeds an amount equal to the sum of (a) the
Compensating Interest for such Loan Group and Distribution Date and (b) the
excess, if any, of the Compensating Interest for the other Loan Group for such
Distribution Date over Prepayment Interest Shortfalls for such Loan Group and
Distribution Date.
Net Prepayments: As to any Distribution Date and Loan Group, the amount
equal to the excess, if any, of the (i) Principal Prepayment Amount for that
Loan Group over (ii) the aggregate amount of Deferred Interest accrued on the
Mortgage Loans in that Loan Group from the preceding Due Date to the Due Date
related to that Distribution Date.
Net Rate Cap: For each Distribution Date:
o with respect to the Group 1 Senior Certificates, the product of
(A) the excess, if any, of (i) the weighted average Adjusted Net
Mortgage Rate on the Group 1 Mortgage Loans as of the Due Date in
the prior calendar month (after giving effect to Principal
Prepayments received in the Prepayment Period related to that
prior Due Date) over (ii) the sum of the
31
Swap Adjustment Rate and Class 1-A-3B Policy Premium Rate, and (B)
a fraction, the numerator of which is 30, and the denominator of
which is the actual number of days in the related Interest Accrual
Period;
o with respect to the Group 2 Senior Certificates, the product of
(A) the excess, if any, of (i) the weighted average Adjusted Net
Mortgage Rate on the Group 2 Mortgage Loans as of the Due Date in
the prior calendar month (after giving effect to Principal
Prepayments received in the Prepayment Period related to that
prior Due Date) over (ii) the sum of the Swap Adjustment Rate and
Class 2-A-2 Policy Premium Rate for the Group 2 Mortgage
Loans, and (B) a fraction, the numerator of which is 30, and the
denominator of which is the actual number of days in the related
Interest Accrual Period; and
o with respect to the Subordinated Certificates, the weighted
average of the Net Rate Caps for the Group 1 Senior Certificates
and the Group 2 Senior Certificates, in each case, weighted on the
basis of the excess of the aggregate Stated Principal Balance of
the Group 1 Mortgage Loans and the Group 2 Mortgage Loans,
respectively, in each case as of the Due Date in the prior
calendar month (after giving effect to Principal Prepayments
received in the Prepayment Period related to that prior Due Date),
over the aggregate Class Certificate Balance of the Group 1 Senior
Certificates and the aggregate Class Certificate Balance of the
Group 2 Senior Certificates, respectively.
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
applicable Net Rate Cap, over
(2) the amount of interest that Class accrued on that Distribution
Date based on the applicable 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 applicable Net Rate Cap).
Net Swap Payment: With respect to any Distribution Date and payment by
the Swap Trustee to the Swap Counterparty, the excess, if any, of the "Floating
Amount I" (as defined in the Swap Contract) with respect to such Distribution
Date over the "Floating Amount II" (as defined in the Swap Contract) with
respect to such Distribution Date. With respect to any Distribution Date and
payment by the Swap Counterparty to the Swap Trustee, the excess, if any, of
the "Floating Amount I" (as defined in the Swap Contract) with respect to such
Distribution Date over the "Floating Amount II" (as defined in the Swap
Contract) with respect to such Distribution Date.
NIM Insurer: Any insurer guarantying at the request of the Holder of the
Class C or Class P Certificates certain payments under notes backed or secured
by the Class C or Class P Certificates.
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.
32
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 0.50% of the Cut-off Date Pool Stated
Principal Balance of the Mortgage Loans.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee as required by this Agreement or (iii) in the
case of any other Person, signed by an authorized officer of such Person.
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
33
or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before
the Due Date.
Overcollateralization Deficiency Amount: With respect to any
Distribution Date, the amount, if any, by which the Overcollateralization
Target Amount exceeds the Overcollateralized Amount on such Distribution Date
(after giving effect to distributions of the Principal Remittance Amount on
that Distribution Date).
Overcollateralization Release Amount: With respect to any Distribution
Date, an amount equal to the lesser of (x) the Principal Remittance Amount for
that Distribution Date and (y) the amount, if any, by which the
Overcollateralized Amount for that date exceeds the Overcollateralization
Target Amount for that date.
Overcollateralization Target Amount: With respect to any Distribution
Date (a) prior to the Stepdown Date, an amount equal to 0.70% of the Cut-off
Date Pool Principal Balance and (b) on or after the Stepdown Date, the greater
of (1) the product of (i) for any Distribution Date on or after the Stepdown
Date but prior to the Distribution Date in March 2012, 1.75% and thereafter,
1.40% and (ii) of the Pool Stated 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 (2) the OC Floor; provided,
however, that if a Trigger Event is in effect on any Distribution Date, the
Overcollateralization Target Amount will be the Overcollateralization Target
Amount as in effect for the prior Distribution Date.
Overcollateralized Amount: For any Distribution Date is the amount, if
any, by which (x) the Pool Stated 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 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: For each Class of LIBOR Certificates the applicable
amount set forth below:
Class of LIBOR Certificates Pass-Through Margin
--------------------------- -------------------
(1) (2)
Class 1-A-1A 0.220% 0.440%
Class 1-A-1B 0.210% 0.420%
Class 1-A-2 0.300% 0.600%
Class 1-A-3A 0.330% 0.660%
Class 1-A-3B 0.230% 0.460%
Class 2-A-1 0.210% 0.420%
Class 2-A-2 0.210% 0.420%
Class M-1 0.450% 0.675%
Class M-2 0.470% 0.705%
Class M-3 0.510% 0.765%
Class M-4 0.750% 1.125%
Class M-5 0.950% 1.425%
Class M-6 1.750% 2.625%
Class M-7 1.750% 2.625%
34
Class M-8 1.750% 2.625%
Class M-9 1.750% 2.625%
----------
(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.
Payment Adjustment Date: A date specified in each Mortgage Note as a
date on which the Scheduled Payment for the related Mortgage Loan is subject
to adjustment.
Payment Cap: For each Mortgage Loan, the percentage limit set forth in
the related Mortgage Note concerning the maximum permitted increase in a
monthly payment.
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 R Certificates, the portion of the Class evidenced
thereby, expressed as a percentage, as stated on the face of such Certificate.
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 (without regard to the Policy) 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 (without regard to
the Policy) 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
Moody's
35
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 (without regard to
the Policy) 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 (without regard to the Policy) by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency and that have a maturity date occurring no more than 365 days from
their date of issuance;
(ix) units of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating Agency and has
not rated the portfolio, the highest rating assigned by Moody's and (ii) if
S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to
obligations issued or guaranteed by the United States of America or entities
whose obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates
(without regard to the Policy) by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency, and reasonably acceptable to
the NIM Insurer, as evidence by a signed writing delivered by the NIM Insurer.
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
36
(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, or any Person investing on behalf or with plan assets (as defined
in 29 CFR ss.: 0000-0-000 or otherwise under ERISA) of such an employee
benefit plan or plan.
Planned Balance: With respect to the Planned Principal Classes in the
aggregate and any Distribution Date appearing in the aggregate Principal
Balance Schedule, the amount appearing opposite such Distribution Date for
such Planned Principal Classes.
Planned Principal Classes: As specified in the Preliminary Statement.
Policy: The irrevocable Certificate Guaranty Insurance Policy, No.
AB0973BE, including any endorsements thereto, issued by Ambac with respect to
the Class 1-A-3B and Class 2-A-2 Certificates, in the form attached hereto as
Exhibit R.
Policy Payments Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06(c) in the name of the
Trustee for the benefit of the Class 1-A-3B and Class 2-A-2 Certificateholders
and designated "Deutsche Bank National Trust Company, in trust for registered
holders of IndyMac MBS, Inc., INDX Mortgage Loan Trust Series 2006-AR2, Class
1-A-3B and Class 2-A-2". Funds in the Policy Payments Account shall be held in
trust for the Class 1-A-3B and Class 2-A-2 Certificateholders for the uses and
purposes set forth in this Agreement.
Policy Premium: For any Distribution Date is the fee payable to the
Certificate Insurer in respect of its services as Certificate Insurer that
accrues at the Policy Premium Rate on a balance equal to the aggregate Class
Certificate Balance of the Class 1-A-3B and Class 2-A-2 Certificates
immediately prior to such Distribution Date. The Policy Premium shall be
computed on the basis of the actual number of days elapsed over a year of 360
days.
Policy Premium Rate: The sum of the Class 1-A-3B Policy Premium Rate
and the Class 2-A-2 Policy Premium Rate.
37
Pool Stated Principal Balance: The aggregate Stated Principal Balances
of the Mortgage Loans.
Prepayment Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments
in full made within the related Prepayment Charge Period, the Prepayment
Charges with respect to each applicable Mortgage Loan so held by the Trust
Fund being identified in the Mortgage Loan Schedule.
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
and Loan Group, an amount equal to (a) the Principal Remittance Amount for
that Loan Group and Distribution Date, minus (b) the Overcollateralization
Release Amount allocated to that Loan Group 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 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 Amount: As to any Distribution Date and any Loan
Group, an amount equal to the sum of all voluntary Principal Prepayments on
the Mortgage Loans in that Loan Group received during the related Prepayment
Period.
38
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 and Loan Group is
equal to:
(a) the sum, without duplication, of:
(1) all principal collected or advanced on the Mortgage
Loans in that Loan Group with respect to the related Due Date,
(2) Net Prepayments on the Mortgage Loans in that Loan Group
collected in the related Prepayment Period;
(3) the Stated Principal Balance of each Mortgage Loan in
that Loan Group 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
Mortgage Loans in that Loan Group, and
(5) all liquidation proceeds in respect of Mortgage Loans in
that Loan Group (to the extent such liquidation proceeds related
to principal) and all Subsequent Recoveries in respect of Mortgage
Loans in that Loan Group received during the related Prepayment
Period
minus
(b) all non-recoverable Advances relating to principal on the
Mortgage Loans in that Loan Group and certain expenses reimbursed since
the prior Due Date.
Private Certificates: As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinated Certificates, the portion of the Subordinated Principal
Distribution Amount allocable to such Class, equal to the product of the
Subordinated Principal Distribution Amount on such Distribution Date and a
fraction, the numerator of which is the related Class Certificate Balance
thereof and the denominator of which is the aggregate Class Certificate
Balance of the Subordinated Certificates, in each case immediately prior to
such Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated February 28,
2006, relating to the Offered Certificates, and any supplement thereto.
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,
39
(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
(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, 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.
40
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.
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.
Reimbursement Amount: As to any Distribution Date, (i) all Insured
Payments paid by the Certificate Insurer, but for which the Certificate
Insurer has not been reimbursed prior to such Distribution Date pursuant to
Section 4.02, plus (ii) interest accrued on such Insured Payments not
previously repaid, calculated at the Late Payment Rate from the date such
Insured Payments were made.
Relief Act: The Servicemembers Civil Relief Act and any similar state
and local laws.
Relief Act Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended calendar month as a result of
the application of the Relief Act, the amount, if any, by which (i) interest
collectible on such Mortgage Loan for the most recently ended calendar month
is less than (ii) interest accrued thereon for such month pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and regulations promulgated thereunder, as the foregoing may be in effect from
time to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
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
41
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 Cap Counterparty, the Swap Counterparty, the
Certificate Insurer, 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;
(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
42
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 Three Month Delinquency Rate: With respect to any Distribution
Date, an amount equal to the average of the Delinquency Rates for each of the
three (or one and two, in the case of the first and second Distribution Dates,
respectively) immediately preceding months.
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.
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 Certificate Group: As specified in the Preliminary Statement.
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
43
(2) the denominator of which is the Pool Stated Principal Balance
for the preceding Distribution Date, in each case after giving effect to
distributions on that Distribution Date.
Senior Principal Distribution Amount: For any Distribution Date, an
amount equal to (a) prior to the Stepdown Date or if a Trigger Event is in
effect with respect to that Distribution Date, 100% of the Principal
Distribution Amount for that Distribution Date and (b) on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect to
that Distribution Date, the amount, if any, by which (x) the aggregate Class
Certificate Balance of each Class of Senior Certificates after allocation of
any Net Deferred Interest but prior to any distribution on that Distribution
Date exceeds (y) the Senior Target Amount.
Senior Target Amount: For any Distribution Date, an amount equal to the
lesser of (a) the product of (1) (i) for each Distribution Date prior to the
Distribution Date in March 2012, 81.50%; and (ii) thereafter, 85.20% and (2)
the Pool Stated Principal Balance for that Distribution Date determined as of
the last day of the related Due Period and (b) the amount, if any, by which
(1) the Pool Stated Principal Balance for that Distribution Date determined as
of the last day of the related Due Period exceeds (2) the OC Floor.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as servicer under this Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Servicing Account: The separate Eligible Account or Accounts created
and maintained pursuant to Section 3.06(b).
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the 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
44
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.
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 and increased by any Deferred
Interest added to the principal balance of that Mortgage Loan on or prior to
such Due Date.
Stepdown Date: The later to occur of (x) the Distribution Date in March
2009 and (y) the first Distribution Date on which the Senior Enhancement
Percentage (calculated for this purpose after giving effect to payments or
other recoveries in respect of the Mortgage Loans during the related Due
Period, but before giving effect to distributions on any Certificates on that
Distribution Date) is greater than or equal to (a) on any Distribution Date
prior to the Distribution Date in March 2012, 18.50% and (b) on any
Distribution Date on or after that Distribution Date, 14.80%
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.
45
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,
(iv) have the same negative amortization limit, payment adjustment
intervals and recast intervals as that of the deleted Mortgage Loan;
(v) have the same index and Payment Cap as the deleted Mortgage Loan and
a Gross Margin not more than 1% per annum higher than, and not lower than that
of the deleted Mortgage Loan;
(vi) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to maturity no greater than (and not more
than one year less than) that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(ix) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
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 Account: The separate Eligible Account created and initially
maintained by the Swap Trustee pursuant to Section 4.08.
Swap Adjustment Rate: For each Distribution Date and Loan Group is a
fraction, expressed as a percentage, (A) the numerator of which is equal to
the product of (1) the product of (i) the sum of (a) the Net Swap Payment
and a fraction, the numerator of which is 360 and the denominator of which is
the actual number of days in the related Interest Accrual Period and (2) the
Swap Allocation Percentage for that Loan Group and (B) the denominator of
which is equal to the Pool Balance in that Loan Group as of the Due Date in
the prior calendar month.
46
Swap Allocation Percentage: For any Distribution Date and Loan Group,
the percentage set forth in the Swap Table for such Loan Group and date.
Swap Certificates: The LIBOR Certificates.
Swap Contract: With respect to the LIBOR Certificates, the transaction
evidenced by the related Confirmation between the Swap Trustee and the Swap
Counterparty, a form of which is attached as Exhibit P-4
Swap Counterparty: IXIS Financial Products In.
Swap Contract Termination Date: The Distribution Date in March 2009.
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).
Swap Table: The table set forth below:
Swap Allocation Swap Allocation
Month of Swap Contract Percentage for Percentage for
Distribution Date Notional Balance Loan Group 1 Loan Group 2
------------------- ----------------- ----------------- ----------------
April 2006...... $1,695,142,238.17 82.65305% 17.34695%
May 2006......... $1,658,694,160.08 82.64831% 17.35169%
June 2006........ $1,623,120,803.35 82.64107% 17.35893%
July 2006........ $1,588,317,154.78 82.63348% 17.36652%
August 2006...... $1,554,265,887.42 82.62561% 17.37439%
September 2006... $1,520,950,718.28 82.61744% 17.38256%
October 2006..... $1,488,354,623.15 82.60891% 17.39109%
November 2006.... $1,456,461,247.57 82.60020% 17.39980%
December 2006.... $1,425,251,821.09 82.59103% 17.40897%
January 2007..... $1,394,705,061.34 82.58167% 17.41833%
February 2007.... $1,364,911,073.01 82.56564% 17.43436%
March 2007....... $1,335,782,019.65 82.54211% 17.45789%
April 2007....... $1,307,191,218.20 82.51919% 17.48081%
May 2007......... $1,279,215,426.07 82.49643% 17.50357%
June 2007........ $1,251,842,420.24 82.47734% 17.52266%
July 2007........ $1,225,058,995.91 82.50362% 17.49638%
August 2007...... $1,198,354,219.03 82.53030% 17.46970%
September 2007... $1,172,133,381.03 82.55736% 17.44264%
October 2007..... $1,146,494,599.68 82.58434% 17.41566%
November 2007.... $1,109,524,268.17 82.61110% 17.38890%
December 2007.... $1,066,566,985.21 82.63810% 17.36190%
January 2008..... $1,023,617,859.24 82.66524% 17.33476%
February 2008.... $980,944,899.00 82.69290% 17.30710%
March 2008....... $939,266,363.93 82.72244% 17.27756%
April 2008....... $899,256,811.51 82.75102% 17.24898%
May 2008......... $860,758,732.79 82.77498% 17.22502%
June 2008........ $823,091,303.02 82.78138% 17.21862%
July 2008........ $786,042,703.69 82.79869% 17.20131%
August 2008...... $749,526,712.51 82.79473% 17.20527%
September 2008... $714,586,110.71 82.79579% 17.20421%
October 2008..... $681,165,549.41 82.79468% 17.20532%
November 2008.... $649,264,908.53 82.79308% 17.20692%
December 2008.... $618,830,442.83 82.79148% 17.20852%
January 2009..... $589,787,403.07 82.79013% 17.20987%
February 2009.... $562,051,542.33 82.78889% 17.21111%
March 2009 and
thereafter $ 0.00 0.00000% 0.00000%
47
Swap Termination Payment : The payment payable to either party under the
Swap Contract due to an early termination of the Swap Contract.
Swap Trust: The trust fund established by Section 4.08.
Swap 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 LIBOR 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 servicing as
successor trustee under this Agreement.
Target Amount: For any Distribution Date, an amount equal to the Pool
Stated Principal Balance for that Distribution Date minus the Targeted
Overcollateralization Amount for that Distribution Date.
Targeted Balance: With respect to the Targeted Principal Classes and any
Distribution Date appearing in the Principal Balance Schedules, the applicable
amount appearing opposite such Distribution Date for such Targeted Principal
Classes.
Targeted Principal Classes: As specified in the Preliminary Statement.
Transaction Documents: This Agreement, each Corridor Contract, the Swap
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 Funds 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;
(v) all rights to receive amounts under, and to enforce remedies in, the
Cap Agreements;
(vi) the rights of the Trustee for the benefit of the Class 1-A-3B and
Class 2-A-2 Certificateholders under the Policy; and
48
(vii) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and, if
a successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in an amount equal to one-twelfth of
the Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of
the Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date).
Trustee Fee Rate: 0.0014% per annum.
The terms "United States," "State," and "International Organization"
have the meanings in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States or
of any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and, with the exception of the Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not selected by
such government unit.
UCC: The Uniform Commercial Code for the State of New York.
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.
49
U.S.A. Patriot Act: The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date of
determination, (a) 1% of all Voting Rights shall be allocated to each Class of
Notional Amount Certificates (the Voting Rights to be allocated among the
holders of Certificates of each Class in accordance with their respective
Percentage Interests), (b) 1% of all Voting Rights shall be allocated to the
Holder of the Class R Certificates and (c) the remaining Voting Rights shall
be allocated among Holders of the remaining Classes of Offered Certificates in
proportion to the Certificate Balances of the respective Certificates on the
date. Notwithstanding any of the foregoing, on any date on which any Class
1-A-3B or Class 2-A-2 Certificates are outstanding or amounts are owed the
Certificate Insurer under this Agreement, unless a Certificate Insurer Default
shall have occurred and be continuing, the Certificate Insurer will be
entitled to exercise the Voting Rights of the Holders of the Class 1-A-3B and
Class s Certificates, without the consent of the Holders of the Class 1-A-3B
and Class 2-A-2 Certificates, and the Holders of the Class 1-A-3B and Class
2-A-2 Certificates may exercise such rights only with the prior written
consent of the Certificate Insurer.
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 affect to Principal Prepayments in the Prepayment Period
related to such prior Due Date).
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").
50
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by
"if any," and "any [of a thing]" is any of it. A reference to the plural of
anything as to which there could be either one or more than one does not imply
the existence of more than one (for instance, the phrase "the obligors on a
note" means "the obligor or obligors on a note"). "Until [something occurs]"
does not imply that it must occur, and will not be modified by the word
"unless." The word "due" and the word "payable" are each used in the sense
that the stated time for payment has passed. The word "accrued" is used in its
accounting sense, i.e., an amount paid is no longer accrued. In the
calculation of amounts of things, differences and sums may generally result in
negative numbers, but when the calculation of the excess of one thing over
another results in zero or a negative number, the calculation is disregarded
and an "excess" does not exist. Portions of things may be expressed as
fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not otherwise
defined, and accounting terms partly defined in this Agreement, to the extent
not completely defined, shall be construed in accordance with generally
accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement are inconsistent with their meanings under
generally accepted accounting principles, the definitions contained in this
Agreement shall control. Capitalized terms used in this Agreement without
definition that are defined in the Uniform Commercial Code are used in this
Agreement as defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means
"to and including." Likewise, in setting deadlines or other periods, "by"
means "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. Also on the Closing Date the Depositor shall
deposit or shall cause to be deposited $257,000.00 into the Carryover Reserve
Fund.
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby (i) transfers to the Trustee for the benefit of the
Certificateholders and the Certificate Insurer, 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 and (ii) causes the
Certificate Insurer to deliver the Policy to the Trustee. The Depositor hereby
directs the Swap Trustee to execute the Swap Agreement, and the Cap Trustee to
execute the Cap Agreements.
(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
52
presence of the MIN of the Mortgage Loans and either language indicating that
the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the
Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording indicated thereon, or a
copy of the Mortgage certified by the public recording office in which such
Mortgage has been recorded.
(iii) In the case of 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
53
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
54
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.
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 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.
55
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 or
the Certificate Insurer 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 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 O, the Trustee shall release the related Mortgage File to the Seller
and shall execute and deliver at the Seller's request any instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
necessary to vest in the Seller, or a designee, the Trustee's interest in any
Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions the Seller repurchases a
Mortgage Loan that is a MERS Mortgage Loan, the Servicer shall either (i)
cause MERS to execute and deliver an assignment of the Mortgage in recordable
form to transfer the Mortgage from MERS to the Seller and shall cause such
Mortgage to be removed from registration on the MERS(R) System in accordance
with MERS' rules and
56
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. Solely with respect to the Group 1 Mortgage Loans, the Servicer
will fully furnish, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e., favorable
and unfavorable) on its credit files for the related Mortgagor for each Group
1 Mortgage Loan to Equifax, Experian and Trans Union Credit Information
Company on a monthly basis.
(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, the Certificate Insurer 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. With respect to the Group 1 Mortgage Loans, any breach of
the representation or warranty made pursuant to clauses (28), (32), (34),
(38), (42), (48), (49) and (50) of Schedule III or a breach of the covenant of
the Servicer made pursuant to clause (a) above will be deemed to materially
and adversely affect the interests of the Certificateholder or the Certificate
Insurer in the related Group 1 Mortgage Loan. 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 or the Certificate Insurer in any Mortgage Loan, it shall
cure such breach in all material respects, and if such breach is not so cured,
shall, (i) if the 90-day period expires before the second anniversary of the
Closing Date, remove the Mortgage Loan (a "Deleted Mortgage Loan") from the
Trust Fund and substitute in its place a Substitute Mortgage Loan, in
accordance with this Section 2.03; or (ii) repurchase the affected Mortgage
Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner
set forth below. Any substitution pursuant to (i) above shall not be effected
before the delivery to the Trustee of the Opinion of Counsel required by
Section 2.05 and a Request for Release substantially in the form of Exhibit N,
and the Mortgage File for any Substitute Mortgage Loan. The 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
Note endorsed and the Mortgage assigned as required by Section 2.01. No
substitution is permitted to be
57
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 and interest thereon
(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 and the Certificate Insurer.
The Master Servicer has fully furnished and will fully furnish, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable) on its borrower credit files to Equifax, Experian, and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis for the Mortgage Loans in Loan Group 1.
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Section 2.04 Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor represents and warrants to the Trustee and the Certificate
Insurer 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, the Certificate Insurer 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 or the Certificate Insurer, 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 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 and the Certificate Insurer,
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.
Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor, the Trustee and the Certificate
Insurer 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
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relieved of any of its obligations under this Agreement by virtue of such
performance by the Depositor or its designee. None of the Trustee, the
Depositor or the Certificate Insurer shall have any responsibility or
liability for any action or failure to act by the Servicer nor shall the
Trustee, the Depositor or the Certificate Insurer 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.
If the Servicer is no longer the Servicer for any reason (including
because the occurrence or existence of any Event of Default), the Trustee (or
any other successor Servicer) may, at its option, succeed to any rights and
obligations of the Servicer under any subservicing agreement in accordance
with its terms. The Trustee (or any other successor Servicer) shall not incur
any liability or have any obligations in its capacity as successor Servicer
under a subservicing agreement arising before the date of succession unless it
expressly elects to succeed to the rights and obligations of the Servicer
thereunder; and the Servicer shall not thereby be relieved of any liability or
obligations under the subservicing agreement arising before the date of
succession.
The Servicer shall, upon request of the Trustee, but at the expense of
the Servicer, deliver to the assuming party all documents and records relating
to each subservicing agreement and the Mortgage Loans then being serviced
thereunder and an accounting of amounts collected held by it and otherwise use
its best efforts to effect the orderly and efficient transfer of the
subservicing agreement to the assuming party.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any
differential in the amount of the Servicing Fee paid under this Agreement and
the amount necessary to induce any successor Servicer to act as successor
Servicer under this Agreement and the transactions provided for in this
Agreement.
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Section 3.06 Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account; Certificate Account; Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard, the
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 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) The Servicer shall establish and maintain one or more Servicing
Accounts (the "Servicing Account") into which the Servicer shall deposit on a
daily basis within one Business Day of receipt, the following payments and
collections received by it after the Cut-off Date (other than in respect of
principal and interest due on the Mortgage Loans by the Cut-off Date):
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net of
the related Servicing Fee; and
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair of
the Mortgaged Property or released to the Mortgagor in accordance with the
Servicer's normal servicing procedures.
By the Withdrawal Date in each calendar month, the Servicer shall (a)
withdraw from the Servicing Account all amounts on deposit therein pursuant to
clauses (i) and (ii) above (other than
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amounts attributable to a Principal Prepayment in Full) and (b) deposit such
amounts in the Collection Account.
By the Business Day in each calendar month following the deposit in the
Servicing Account of amounts on deposit therein pursuant to clause (iii) above
or pursuant to any Principal Prepayment in Full, the Servicer shall (a)
withdraw such amounts from the Servicing Account and (b) deposit such amounts
in the Collection Account.
(c) The Servicer shall establish and maintain a Collection Account (the
"Collection Account") into which the Servicer shall deposit, as and when
required by paragraph (b) of this Section 3.06, all amounts required to be
deposited into the Collection Account pursuant to that paragraph. The
Collection Account shall be an Eligible Account held for the benefit of the
Certificateholders.
(d) The Servicer shall establish and maintain a Certificate Account into
which the Servicer shall deposit on a daily basis (i) within one Business Day
of deposit in the Collection Account (in the case of items (i) through (iii)
below) and (2) within one Business Day of receipt (in the case of all other
items), except as otherwise specified herein, the following payments and
collections received by it 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;
(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
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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 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
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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, the Certificate Insurer and the
Trustee reasonable access to all records and documentation regarding the
Mortgage Loans and all accounts, insurance information and other matters
relating to this Agreement, such access being afforded without charge, but
only upon reasonable request and during normal business hours at the office
designated by the 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
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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 and (b) for unpaid Servicing
Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect of such Mortgage Loan that has been purchased
pursuant to Section 2.02, 2.03, or 3.12, all amounts received thereon after
the date of such purchase;
(vii) to reimburse the 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;
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
Available Funds and the Trustee Fee for the Distribution Date, to the extent
on deposit, and (2) the Prepayment Charges on deposit, and remit such amount
to the Trustee for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination of
this Agreement pursuant to Section 9.01.
The 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 and the Certificate Insurer in the manner
specified in this Agreement (and to withhold from the amounts so withdrawn the
amount of any taxes that it is authorized to withhold pursuant to the last
paragraph of Section 8.11). In addition, the Trustee may from time to time
make withdrawals from the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution Date;
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(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 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
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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 or the Collection Account (as applicable).
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Servicer shall
to the extent that it has knowledge of the conveyance and in accordance with
the Servicing Standard, enforce any due-on-sale clause contained in any
Mortgage Note or Mortgage, to the extent permitted under applicable law and
governmental regulations, but only to the extent that enforcement will not
adversely affect or jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer is not required to exercise these
rights with respect to a Mortgage Loan if the Person to whom the related
Mortgaged Property has been conveyed or is proposed to be conveyed satisfies
the conditions contained in the Mortgage Note and Mortgage related thereto and
the consent of the mortgagee under the Mortgage Note or Mortgage is not
otherwise so required under the Mortgage Note or Mortgage as a condition to
the transfer.
If (i) the Servicer is prohibited by law from enforcing any due-on-sale
clause, (ii) coverage under any Required Insurance Policy would be adversely
affected, (iii) the Mortgage Note does not include a due-on-sale clause, or
(iv) nonenforcement is otherwise permitted hereunder, the Servicer is
authorized, subject to Section 3.11(b), to take or enter into an assumption
and modification agreement from or with the person to whom the property has
been or is about to be conveyed, pursuant to which the person becomes liable
under the Mortgage Note and, unless prohibited by applicable state law, the
Mortgagor remains liable thereon. The Mortgage Loan must continue to be
covered (if so covered before the Servicer enters into the agreement) by the
applicable Required Insurance Policies.
The Servicer, subject to Section 3.11(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with the Person, pursuant to which
the original Mortgagor is released from liability and the Person is
substituted as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the foregoing, the Servicer shall not be deemed to be in
default under this Section 3.11 because of any transfer or assumption that the
Servicer reasonably believes it is restricted by law from preventing, for any
reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to
the extent 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
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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 master
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 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
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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 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 the Mortgage Rate on the Mortgage Loan, as modified, is
approximately a prevailing market rate for newly-originated Mortgage Loans
having similar terms 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.
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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.
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.
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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 Collection Account, Distribution
Account, or any Escrow Account, or any funds that otherwise are or may become
due or payable to the Trustee for the benefit of the Certificateholders, to
any claim, lien, security interest, judgment, levy, writ of attachment, or
other encumbrance, or assert by legal action or otherwise any claim or right
of setoff against any Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the 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 Servicing Account, the Collection Account, or the
Certificate Account the Servicing Fee for each Mortgage Loan for the related
Distribution Date. Notwithstanding the foregoing, the Servicing Fee payable to
the 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 Servicing Account, the
Collection Account, or 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 master
servicing compensation in the form of Excess Proceeds, Prepayment Interest
Excess, assumption fees, late payment charges and all income net of any losses
realized from Permitted Investments shall be retained by the Servicer to the
extent not required to be deposited in the Certificate Account pursuant to
Section 3.06. The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder (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.
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Section 3.17 Annual Statement as to Compliance.
(a) By March 1 of each year, commencing with 2007, the Servicer shall
deliver to the Depositor, the Certificate Insurer and the Trustee an Officer's
Certificate signed by two Servicing Officers stating, as to each signer
thereof, that (i) a review of the activities of the 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.
The Depositor shall cause the Swap Trustee to enter into the Swap
Contract. The Swap Trustee's rights to receive certain proceeds of the Swap
Contract as provided in the Swap Contract shall be rights of the Swap Trustee
as Swap Trustee under this Agreement, shall be an asset of the Swap Trust and
shall not be an asset of the Trust Fund nor of any REMIC. The Swap Trustee
shall deposit any amounts received from time to time from the Swap
Counterparty with respect to the Swap Contract into the Swap Account. The
Master Servicer shall deposit any amounts received on behalf of the Swap
Trustee from time to time with respect to the Swap Contract into the Swap
Account.
On the Business Day preceding each Distribution Date, the Swap 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 Swap Trustee obtaining actual knowledge of the rating of the
Swap Counterparty falling below the Approved Rating Thresholds (as defined in
the Swap Contract), the Swap 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 Swap 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 Swap 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 Swap Account
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or the Distribution Account unless they are applied in accordance with such
ISDA Credit Support Annex to make a payment due to the Swap Trustee pursuant
to the Swap Contract.
Upon the Swap 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 Swap Trustee has the right to designate an Early
Termination Date (as defined in the Swap Contract), the Swap Trustee shall act
at the written direction of the Depositor as to whether to designate an Early
Termination Date; provided, however, that the Swap 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, the Swap 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 hereof.
In the event that the Swap Counterparty in respect of a replacement swap
contract pays any upfront amount to the Swap Trustee, any portion of such
upfront amount paid by a Swap Counterparty in respect of a replacement swap
contract that is remitted to the Swap Trustee shall be available, to the
extent and in the respective amounts that Interest Funds for each Loan Group
and Principal Remittance Amounts for each Loan Group were used on prior
Distribution Dates to cover any Swap Termination Payments due to the Swap
Counterparty under the original 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 Swap Trustee with respect to
any Distribution Date will be remitted to Xxxxxx Brothers Inc. 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 hereto.
Section 3.20 Notification of Adjustments.
On each Adjustment Date and Payment Adjustment Date, the Servicer shall
make interest rate and payment adjustments, respectively, 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 and Scheduled Payment 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 Scheduled 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 or Scheduled Payment
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
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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.
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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 Funds. On each Distribution Date (or in
the case of payments to the Swap Counterparty, the Business Day prior to each
Distribution Date), the Interest Funds for such Distribution Date shall be
allocated by the Trustee from the Distribution Account in the following order
of priority, until such Interest Funds have been fully distributed:
(i) from the Interest Remittance Amount related to each Loan Group, pro
rata based on the Interest Remittance Amount for that Loan Group, in the
following priority:
first, to the Swap Account, the product of (x) the related Swap
Allocation Percentage for that Distribution Date and (y) the amount of any Net
Swap Payment and any Swap Termination Payment payable to the Swap Counterparty
with respect to that Distribution Date (including amounts remaining unpaid
from previous Distribution Dates);
second, to the Swap Account, the amount of any Net Swap Payment and any
Swap Termination Payment payable to the Swap Counterparty with respect to that
Distribution Date not paid previously or from the Interest Remittance Amount
from the other Loan Group;
third, to the Certificate Insurer, the monthly premium due under the
Policy with respect to the Class 1-A-3B Certificates, in the case of the
Interest Remittance Amount for Loan Group 1, and the Class 2-A-2 Certificates,
in the case of the Interest Remittance Amount for Loan Group 2;
fourth, (A) from Interest Funds for Loan Group 1, in the following
priority:
(i) concurrently, to each Class of Group 1 Senior Certificates,
the Current Interest and Interest Carry Forward Amount for each of those
Classes and that Distribution Date, pro rata, based on the amount of
interest each Class is entitled to receive on that Distribution Date;
provided, however, that if funds available are insufficient to pay that
amount, any resulting shortfalls will be allocated pro rata on the basis
of Current Interest and Interest Carry Forward Amounts due such Classes
on that Distribution Date; and
(ii) to the Certificate Insurer, any unreimbursed Insured Payments
with respect to the Class 1-A-3B Certificates, plus any other amounts
due to the Certificate Insurer to the extent not paid above; and
(B) from Interest Funds for Loan Group 2, in the following
priority:
(i) concurrently, to each Class of Group 2 Senior Certificates,
the Current Interest and Interest Carry Forward Amount for each of those
Classes and that Distribution Date, pro rata, based on the amount of
interest each Class is entitled to receive on that Distribution Date;
provided, however, that if funds available are insufficient to pay such
amount, any resulting shortfalls will be allocated pro rata on the basis
of Current Interest and Interest Carry Forward Amounts due such Classes
on that Distribution Date;
(ii) to the Certificate Insurer, any unreimbursed Insured Payments
with respect to the Class 2A-2 Certificates, plus any other amounts due
to the Certificate Insurer to the extent not paid above; and
(ii) the Interest Remittance Amount remaining undistributed for each
Loan Group after distribution pursuant to clause (1) above will be aggregated
and distributed in the following priority:
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first, to the Certificate Insurer, the monthly premium due under the
Policy with respect to the Class 1-A-3B and Class 2-A-2 Certificates to the
extent not paid pursuant to clause (i) above;
second, any remaining Current Interest and Interest Carry Forward Amount
not paid pursuant to clause (i) above, based on the amount of interest each of
those Classes of Senior Certificates is entitled to receive on that
Distribution Date, to the extent needed to pay any Current Interest and
Interest Carry Forward Amount for each Class (any shortfall in Current
Interest and Interest Carry Forward Amount to be allocated among such Classes
in proportion to the amount of Current Interest and Interest Carry Forward
Amount that would otherwise be distributable thereon); provided that Interest
Funds remaining after that allocation to pay any Current Interest and Interest
Carry Forward Amount based on the amount of interest each Class of Senior
Certificates is entitled to receive on that Distribution Date will be
distributed to each Class of Senior Certificates with respect to which there
remains any unpaid Current Interest and Interest Carry Forward Amount, pro
rata, based on the amount of such remaining unpaid Current Interest and
Interest Carry Forward Amount;
third, to the Certificate Insurer, any unreimbursed Insured Payments
with respect to the Class 1-A-3B and Class 2-A-2 Certificates, plus any other
amounts due to the Certificate Insurer to the extent not paid above;
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, the Current Interest and Interest Carry Forward Amount for each such
Class and that Distribution Date; and
fifth, 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, the Principal Distribution Amount for that Distribution Date with
respect to each Loan Group shall be allocated by the Trustee from the
Distribution Account in the following order of priority until that Principal
Distribution Amount has been fully distributed:
(i) For each Distribution Date (or in the case of payments to the Swap
Counterparty, the Business Day prior to each Distribution Date) prior to the
Stepdown Date or on which a Trigger Event is in effect, until the aggregate
Class Certificate Balance of the Certificates equals the Target Amount for
that Distribution Date:
(A) concurrently:
(1) from the Principal Distribution Amount for Loan Group 1,
in the following priority:
first, to the Swap Account, the product of (i) the
Swap Allocation Percentage for Loan Group 1 and (ii) any Net
Swap Payment and Swap Termination Payment, to the extent not
previously paid, or not paid from the Interest Remittance
Amount;
second, to the Swap Account, the amount of any Net
Swap Payment and any Swap Termination Payment payable to the
Swap Counterparty with respect to that Distribution Date not
paid previously from the Interest Remittance Amount or
pursuant to the first clause of (i)(A)(1) above or from Loan
Group 2 in accordance with the first clause of (i)(A)(2)
below;
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third, to the Group 1 Senior Certificates, pro rata,
until their respective Class Certificate Balances are
reduced to zero; and
fourth, (i) so long as (x) any of the Subordinated
Certificates are outstanding, (y) the Overcollateralized
Amount exceeds zero or (z) there is Excess Cashflow, from
any remaining Principal Distribution Amount for Loan Group
1, to the Class 2-A-1 and Class 2-A-2 Certificates (after
the distribution of the Principal Distribution Amount from
Loan Group 2 as described below), pro rata, until their
respective Class Certificate Balances are reduced to zero;
or (ii) if (x) the Class Certificate Balances of the
Subordinated Certificates have been reduced to zero, (y) the
Overcollateralized Amount is zero and (z) there is no Excess
Cashflow, sequentially, to the Class 2-A-1 and Class 2-A-2
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
(2) from the Principal Distribution Amount for Loan Group 2,
in the following priority:
first, to the Swap Account, the product of (x) the
Swap Allocation Percentage for Loan Group 2 and (y) any Net
Swap Payment and Swap Termination Payment, to the extent not
previously paid, or not paid from the Interest Remittance
Amount;
second, to the Swap Account, the amount of any Net
Swap Payment and any Swap Termination Payment payable to the
Swap Counterparty with respect to that Distribution Date not
paid previously from the Interest Remittance Amount or
pursuant to the first clause (i)(A)(1) above or from Loan
Group 1 in accordance with the first clause of (i)(A)(2)
above;
third, (i) so long as (x) any of the Subordinated
Certificates are outstanding, (y) the Overcollateralized
Amount exceeds zero or (z) there is Excess Cashflow, to the
Class 2-A-1 and Class 2-A-2 Certificates, pro rata, until
their respective Class Certificate Balances are reduced to
zero; or (ii) if (x) the Class Certificate Balances of the
Subordinated Certificates have been reduced to zero, (y) the
Overcollateralized Amount is zero and (z) there is no Excess
Cashflow, sequentially, to the Class 2-A-1 and Class 2-A-2
Certificates, in that order, until their respective Class
Certificate Balances are reduced to zero; and
fourth, to the Group 1 Senior Certificates, pro rata,
until their respective Class Certificate Balances are
reduced to zero; and
(B) from the remaining Principal Distribution Amounts for
both Loan Groups, sequentially:
(1) 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
(2) 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 (or in the case of payments to the Swap
Counterparty, the Business Day prior to each Distribution Date) on or after
the Stepdown Date and so long as a Trigger Event is not in effect, from the
Principal Distribution Amounts for each Loan Group, in the following priority:
first, to the Swap Account, the product of the (x) related Swap
Allocation Percentage for that Distribution Date and (y) the Net Swap
Payment and Swap Termination Payment for that Loan Group, to the extent
not previously paid, or not paid from the Interest Remittance Amount;
second, to the Swap Account, the allocable portion of any Net Swap
Payment and any Swap Termination Payment for the unrelated Loan Group
payable to the Swap Counterparty with respect to that Distribution Date
not paid previously or from the Interest Remittance Amount or pursuant
to clause (ii)(first) above;
third, (a) for so long as any Class of Subordinated Certificates
is outstanding, to the Group 1 Senior Certificates (from amounts in Loan
Group 1, except as provided below) and to the Group 2 Senior
Certificates (from amounts in Loan Group 2, except as provided below),
in each case in accordance with clause (b)(i), concurrently by Principal
Allocation Percentage, in an amount equal to the lesser of (x) the
Principal Distribution Amount for the related Loan Group for that
Distribution Date and (y) the Senior Principal Distribution Amount for
the related Loan Group for that Distribution Date, until the Class
Certificate Balance of each such Class has been reduced to zero; or (b)
otherwise to each Class of Senior Certificates (in each case in
accordance with clause (i), concurrently by Principal Allocation
Percentage), the Principal Distribution Amount for the related Loan
Group for that Distribution Date;
fourth, to the Class M-1 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates on that Distribution Date pursuant to clause third above
minus any Swap Allocation Payment Amount, Net Swap Payment or Swap
Termination Payment paid on that Distribution Date pursuant to clauses
(i) or (ii) above and (y) the Class M-1 Principal Distribution Amount
for that Distribution Date, until the Class Certificate Balance of that
Class has been reduced to zero;
fifth, to the Class M-2 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1 Certificates on that Distribution Date
pursuant to clauses third and fourth above minus any Swap Allocation
Payment Amount, Net Swap Payment or Swap Termination Payment paid on
that Distribution Date pursuant to clauses (i)(A)(1) or (2) above and
(y) the Class M-2 Principal Distribution Amount for that Distribution
Date, until the Class Certificate Balance of that Class has been reduced
to zero;
sixth, to the Class M-3 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1 and Class M-2 Certificates on that
Distribution Date pursuant to clauses third through fifth above minus
any Swap Allocation Payment Amount, Net Swap Payment or Swap Termination
Payment paid on that Distribution Date pursuant to clauses (1) or (2)
above and (y) the Class M-3 Principal Distribution Amount for that
Distribution Date, until the Class Certificate Balance of that Class has
been reduced to zero;
seventh, to the Class M-4 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to
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the Senior Certificates and the Class M-1, Class M-2 and Class M-3
Certificates on that Distribution Date pursuant to clauses third through
sixth above minus any Swap Allocation Payment Amount, Net Swap Payment
or Swap Termination Payment paid on that Distribution Date pursuant to
clauses (1) or (2) above and (y) the Class M-4 Principal Distribution
Amount for that Distribution Date, until the Class Certificate Balance
of that Class has been reduced to zero;
eighth, to the Class M-5 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1, Class M-2, Class M-3 and Class M-4
Certificates on that Distribution Date pursuant to clauses third through
seventh above minus any Swap Allocation Payment Amount, Net Swap Payment
or Swap Termination Payment paid on that Distribution Date pursuant to
clauses (1) or (2) above and (y) the Class M-5 Principal Distribution
Amount for that Distribution Date, until the Class Certificate Balance
of that Class has been reduced to zero;
ninth, to the Class M-6 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4 and
Class M-5 Certificates on that Distribution Date pursuant to clauses
third through eighth above minus any Swap Allocation Payment Amount, Net
Swap Payment or Swap Termination Payment paid on that Distribution Date
pursuant to clauses (1) or (2) above and (y) the Class M-6 Principal
Distribution Amount for that Distribution Date, until the Class
Certificate Balance of that Class has been reduced to zero;
tenth, to the Class M-7 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5 and Class M-6 Certificates on that Distribution Date pursuant to
clauses third through ninth above minus any Swap Allocation Payment
Amount, Net Swap Payment or Swap Termination Payment paid on that
Distribution Date pursuant to clauses (1) or (2) above and (y) the Class
M-7 Principal Distribution Amount for that Distribution Date, until the
Class Certificate Balance of that Class has been reduced to zero;
eleventh, to the Class M-8 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6 and Class M-7 Certificates on that Distribution Date
pursuant to clauses third through tenth above minus any Swap Allocation
Payment Amount, Net Swap Payment or Swap Termination Payment paid on
that Distribution Date pursuant to clauses (1) or (2) above and (y) the
Class M-8 Principal Distribution Amount for that Distribution Date,
until the Class Certificate Balance of that Class has been reduced to
zero;
twelfth, to the Class M-9 Certificates, an amount equal to the
lesser of (x) the excess of (a) the Principal Distribution Amount for
that Distribution Date over (b) the amount distributed to the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7 and Class M-8 Certificates on that
Distribution Date pursuant to clauses third through eleventh above minus
any Swap Allocation Payment Amount, Net Swap Payment or Swap Termination
Payment paid on that Distribution Date pursuant to clauses (1) or (2)
above and (y) the Class M-9 Principal Distribution Amount for that
Distribution Date, until the Class Certificate Balance of that Class has
been reduced to zero; and
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thirteenth, any remainder as part of the Excess Cashflow to be
allocated as described under 4.02(c) below.
(c) Distributions of Excess Cashflow. With respect to any Distribution
Date, any Excess Cashflow will be paid to the Classes of Certificates in the
following order of priority, in each case to the extent of remaining Excess
Cashflow:
(i) for each Distribution Date occurring (a) before the Stepdown Date or
(b) on or after the Stepdown Date but for which a Trigger Event is in effect,
then until the aggregate Class Certificate Balance of the certificates equals
the Target Amount for that Distribution Date, in the following priority:
(1) after giving effect to principal distributions on that
Distribution Date (as described under clause 4.02(b) above), pro rata,
based on the Senior Proportionate Percentage, to the Senior
Certificates, in each case in accordance with Section 4.02(b)(i) above,
in reduction of their respective Class Certificate Balances, until their
respective Class Certificate Balances have been reduced to zero; and
(2) 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
Balance have been reduced to zero;
(ii) for each Distribution Date occurring on or after the Stepdown Date
and for which a Trigger Event is not in effect, in the following priority:
(1) after giving effect to principal distributions on that
Distribution Date (as described under Section 4.02(b) above), pro rata,
based on the Senior Proportionate Percentage, to the Senior
Certificates, in each case in accordance with Section 4.02(b)(i) above,
in reduction of their respective Class Certificate Balances, until the
aggregate Class Certificate Balance of the Senior Certificates, after
giving effect to distributions on that Distribution Date, equals the
Senior Target Amount for that Distribution Date;
(2) to the Class M-1 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1 Certificates, after giving
effect to distributions made on that Distribution Date, equals the Class
M-1 Target Amount for that Distribution Date;
(3) to the Class M-2 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1 and Class M-2 Certificates,
after giving effect to distributions made on that Distribution Date,
equals the Class M-2 Target Amount for that Distribution Date;
(4) to the Class M-3 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1, Class M-2 and Class M-3
Certificates, after giving effect to distributions made on that
Distribution Date, equals the Class M-3 Target Amount for that
Distribution Date;
(5) to the Class M-4 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1, Class M-2, Class M-3 and
Class M-4 Certificates, after giving effect to distributions made on
that Distribution Date, equals the Class M-4 Target Amount for that
Distribution Date;
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(6) to the Class M-5 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1, Class M-2, Class M-3, Class
M-4 and Class M-5 Certificates, after giving effect to distributions
made on that Distribution Date, equals the Class M-5 Target Amount for
that Distribution Date;
(7) to the Class M-6 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5 and Class M-6 Certificates, after giving effect to
distributions made on that Distribution Date, equals the Class M-6
Target Amount for that Distribution Date;
(8) to the Class M-7 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6 and Class M-7 Certificates, after giving
effect to distributions made on that Distribution Date, equals the Class
M-7 Target Amount for that Distribution Date;
(9) to the Class M-8 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7 and Class M-8 Certificates, after
giving effect to distributions made on that Distribution Date, equals
the Class M-8 Target Amount for that Distribution Date;
(10) to the Class M-9 Certificates, in reduction of their Class
Certificate Balances, until the aggregate Class Certificate Balance of
the Senior Certificates and the 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, after giving effect to distributions made on that
Distribution Date, equals the Class M-9 Target Amount for that
Distribution Date;
(iii) first, 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 Amounts for each such Class, to the Senior
Certificates; and
second, 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, any Unpaid Realized Loss Amounts on for
that Class and that Distribution Date;
(iv) to the Carryover Reserve Fund, the amount of any Net Rate Carryover
and then from the Carryover Reserve Fund, in the following priority:
(1) concurrently, (i) to the Group 1 Senior Certificates, up to
the Group 1 Excess Cashflow Percentage of any remaining Excess Cashflow,
the amount of any Net Rate Carryover Amounts and unpaid Net Rate
Carryover Amounts for each such Class and that Distribution Date (as
reduced by amounts received from the Corridor Contract with respect to
the Class 1-A-1B Certificates), to be paid from amounts on deposit in
the Carryover Reserve Fund, in proportion to the amount of such
shortfalls and (ii) to the Group 2 Senior Certificates, up to the Group
2 Excess Cashflow Percentage of any remaining Excess Cashflow, the
amount of any Net Rate Carryover Amounts and unpaid Net Rate Carryover
Amounts for each such Class and that Distribution Date (as reduced by
amounts received from the applicable Corridor Contract with
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respect to the Class 2-A-1 and Class 2-A-1B Certificates) from amounts
on deposit in the Carryover Reserve Fund, in proportion to the amount of
such shortfalls;
(2) concurrently, to the Senior Certificates, any remaining
applicable Net Rate Carryover Amounts and unpaid Net Rate Carryover
Amounts for each such Class and that Distribution Date, pro rata in
accordance with such shortfalls;
(3) 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, any applicable Net Rate Carryover Amounts
and unpaid Net Rate Carryover Amounts for each such Class and that
Distribution Date; and
(4) for addition to the amounts distributable pursuant to priority
(v) below, to the Class C Certificates, as provided in this Agreement,
any amounts remaining in the Carryover Reserve Fund in excess of amounts
required to be on deposit therein after satisfying priorities (iv)(1)
through (iv)(3) above for that Distribution Date;
(v) to the Swap Trust, for distribution pursuant to priority (ix) under
Section 4.02(d) below; and
(vi) to the Class R Certificate, any remaining amount.
(d) On each Distribution Date on or prior to the Swap Contract
Termination Date, following the deposits to the Swap Account pursuant to
4.02(a)(i) and Section 4.08 and the distributions described under Section
4.02(a), (b) and (c), the Swap Trustee shall distribute amounts on deposit in
the Swap Account in the following amounts and order of priority:
(i) to the Swap Counterparty, any Net Swap Payment payable to the
Swap Counterparty with respect to that Distribution Date;
(ii) to the Swap Counterparty, any Swap Termination Payment
payable to the Swap Counterparty with respect to that Distribution Date;
(iii) to the holders of the LIBOR Certificates, any remaining
Current Interest and Interest Carry Forward Amount, for each such Class
for that Distribution Date to the extent unpaid, in the priority
pursuant to clauses Section 4.02(a)(i)(A)(i) and 4.02(a)(i)(B)(i);
(iv) to the holders of the Certificates, any amount necessary to
maintain the Overcollateralization Target Amount specified in Section
4.02(b)(i) and 4.02(b)(ii) for that Distribution Date, for application
pursuant to the priorities set forth in those clauses, after giving
effect to distributions pursuant to those clauses;
(v) (a) first, concurrently to the Classes of Senior Certificates,
pro rata based on their respective Unpaid Realized Loss Amounts, the
Unpaid Realized Loss Amount for each such Class and (b) second,
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, any Unpaid Realized Loss Amounts for each such Class and that
Distribution Date to the extent unpaid;
(vi) to the Classes of the LIBOR Certificates, any Net Rate
Carryover for that Distribution Date and from any prior Distribution
Date remaining unpaid;
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(vii) if applicable, for application to the purchase of a
replacement interest rate swap contract;
(viii) to the Swap Counterparty, any unpaid Swap Termination
Payment triggered by a Swap Counterparty Trigger Event owed to the Swap
Counterparty pursuant to the Swap Contract; and
(ix) to the Class C Certificates, any amounts deposited into the
Swap Account as described under Section 4.02(c)(v) above and any
remaining Swap Trust Amount.
(e) To the extent that a Class of LIBOR Certificates receives interest
in excess of the related 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 related 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 Swap Account and then paid by the Swap Account
to those Certificateholders.
(f) On each Distribution Date, all Prepayment Charges (including amounts
deposited in connection with the full or partial waiver of such Prepayment
Charges pursuant to Section 3.20) shall be allocated and paid to the Class P
Certificates. On the Distribution Date immediately following expiration of
the latest Prepayment Charge Period of the Mortgage Loans, $100 held in trust
for the Class P Certificates will be distributed to the holders of the Class P
Certificates.
(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. Thereafter, (i) if
the aggregate Class Certificate Balance of the Group 1 Senior Certificates
exceeds the aggregate Stated Principal Balance of the Group 1 Mortgage Loans,
the amount of that excess will be allocated in the following priority:
first, to the Class 1-A-3A and Class 1-A-3B Certificates, pro rata,
until their respective Class Certificate Balances are reduced to zero;
second, to the Class 1-A-2 Certificates, until its Class Certificate
Balance is reduced to zero; and
third, to the Class 1-A-1A and Class 1-A-1B Certificates, pro rata,
until their respective Class Certificate Balances are reduced to zero; and
(ii) if the aggregate Class Certificate Balance of the Group 2 Senior
Certificates exceeds the aggregate Stated Principal Balance of the Group 2
Mortgage Loans, to the Class 2-A-2 Certificates, until its Class Certificate
Balance is reduced to zero.
Any losses on the Group 2 Mortgage Loans will not be allocated to the
Class 2-A-1 Certificates until the final scheduled Distribution Date.
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Section 4.03 [Reserved].
Section 4.04 Allocation of Net Deferred Interest.
To the extent that there is Net Deferred Interest on a Distribution
Date, the Net Deferred Interest on the Mortgage Loans in a Loan Group will be
allocated among the LIBOR Certificates, pro rata, according to the Class
Certificate Balance of each such Class in reduction of the amount of interest
otherwise distributable to that Class; provided, however, the amount of Net
Deferred Interest allocated to any Class of Certificates on a Distribution
Date will not exceed the amount of Current Interest for that Class for that
Distribution Date. To the extent that any Net Deferred Interest allocated to a
Class of Certificates would exceed the amount of Current Interest for that
Class for that Distribution Date, the amount of that excess will be allocated
to the Class C Certificates to the extent distributions would otherwise be
made to the Class C Certificates. Thereafter, that excess amount will be
allocated among the Classes of Certificates, in proportion to, and up to, the
amount of any remaining interest otherwise distributable on the Certificates.
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 Certificate Insurer, the Servicer and the Depositor a
statement for the related distribution of the information contained in Exhibit
Q to this Agreement.
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 V.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(i) and (a)(ii) 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, into which Xxxxxx Brothers Inc. shall deposit
$257,000.00. 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.
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(b) On any Distribution Date for which there is Net Rate Carryover with
respect to any Class of LIBOR Certificates (after distributing amounts from
the Cap Account to the related Classes of Certificates), the Trustee shall
withdraw from the Carryover Reserve Fund, the amount of such Net Rate
Carryover for distribution on such Distribution Date pursuant to Section
4.02(a)(3). If on any Distribution Date the amount on deposit in the
Carryover Reserve Fund is not sufficient to make a full distribution of the
Net Rate Carryover with respect to the Classes of the LIBOR Certificates, the
Trustee shall withdraw the entire amount on deposit in the Carryover Reserve
Fund related to a Class of Notional Amount Certificates and distribute such
amount to the corresponding Classes of Certificates as follows: (x) with
respect to either the Group 1 Senior Certificates or the Group 2 Senior
Certificates, on a pro rata basis, based on the related remaining Net Rate
Carryover due, and (y) with respect to the Classes of Subordinated
Certificates, 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. Any excess of LIBOR plus the applicable Pass-Through Margin in
respect of any Class of LIBOR Certificates over the related Net Rate Cap
(calculated for this purpose without regard to Swap Termination Payments) on
the first three Distribution Dates will be treated as paid from the Carryover
Reserve Fund to the Master REMIC and from the Master REMIC to such Class of
Certificates.
(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. For all federal income tax purposes, amounts
transferred by the Master REMIC to the Cap Account shall be treated as amounts
distributed by the Master REMIC to the Holders of the Class C Certificates.
(d) Upon termination of the Trust Fund any amounts remaining in the
Carryover Reserve Fund shall be distributed to the Certificateholders of the
Class C Certificates on a pro rata basis.
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
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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 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.
Section 4.08 Swap Trust and Swap Account, Cap Trust and Cap Account.
(a) On the Closing Date, there is hereby established a separate trust
(the "Swap Trust"), the assets of which shall consist of the Trustee's rights
and obligations under the Swap Contract. The Swap Trust shall be maintained by
the Swap Trustee, who initially shall be the Trustee. The Swap Trustee shall
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hold the assets of the Swap Trust in trust for the benefit of the Holders of
the LIBOR Certificates and the Swap Counterparty. No later than the Closing
Date, the Swap Trustee shall establish and maintain a separate, segregated
trust account to be held in the Swap Trust, titled, "Swap Account, Deutsche
Bank National Trust Company, as Swap Trustee, in trust for the Swap
Counterparty and the registered holders of IndyMac, MBS Mortgage Pass-Through
Certificates, Series 2006-AR2." Such account 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. Amounts therein shall
be held uninvested. Funds on deposit in the Swap Account shall be distributed
in the amounts and in the order of priority described under Section 4.02(d).
For federal income tax purposes, the Swap Trust, including the Swap Account,
shall be owned by the Class C Certificates.
On each Distribution Date, the Trustee shall make the deposits to
the Swap Account pursuant to Section 4.02(a).
(b) On the Closing Date, there is hereby established a separate trust
(the "Cap Trust"), the assets of which shall consist of the Trustee's rights
and obligations under the Cap Agreements. The Cap Trust shall be maintained by
the Cap Trustee, who initially shall be the Trustee. The Cap Trustee shall
hold the assets of the Cap Trust in trust for the benefit of the Holders of
the Class 1-A-1B, Class 2-A-1 and Class 2-A-2 Certificates. No later than the
Closing Date, the Cap Trustee shall establish and maintain a separate,
segregated trust account to be held in the Cap Trust, titled, "Cap Account,
Deutsche Bank National Trust Company, as Cap Trustee, in trust for the
registered holders of IndyMac MBS, Inc Mortgage Pass-Through Certificates,
Series 2006-AR2." Such account 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. Amounts therein shall be held
uninvested. Funds on deposit in the Cap Account shall be distributed in the
amounts and in the order of priority described under clause (c) below. For
federal income tax purposes, the Cap Trust, including the Cap Account, shall
be owned by the Class C Certificates.
(c) (i) On the Closing Date, the Trustee shall establish and maintain a
Cap Account in its name, in trust for the benefit of the Holders of the Class
1-A-1B, Class 2-A-1 and Class 2-A-2 Certificates. The Cap Account 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.
(ii) The Trustee shall deposit in the Cap Account all amounts received
from the Cap Counterparty on any Distribution Date pursuant to the Cap
Agreements. If the Trustee shall also deposit into the Cap Account any amount
not required to be deposited in that account, it may at any time withdraw such
amount from the Cap Account, any provision in this Agreement to the contrary
notwithstanding. Funds in the Cap Account shall be held uninvested. The Trustee
shall account for the Cap Account as an outside reserve fund within the
meaning of Treasury regulation 1.860G-2(h) and not an asset of any REMIC
created pursuant to this Agreement.
(iii) Amounts on deposit in the Cap Account shall be withdrawn by the
Trustee in connection with any Distribution Date on which there exists a Net
Rate Carryover for the related Classes of Certificates to pay the amount of
such Net Rate Carryover (to the extent of funds on deposit in the Cap Account
from the related Cap Agreement). On any Distribution Date, any amounts on
deposit in Cap Account in excess of the amount required to pay Net Rate
Carryover for that date will be distributed to the C Certificates.
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Section 4.09 Policy; Rights of the Certificate Insurer.
(a) If, on the third Business Day before any Distribution Date, the
Trustee determines that there will be a Deficiency Amount for such
Distribution Date, the Trustee shall determine the amount of any such
deficiency and shall give notice to the Certificate Insurer by telephone or
telecopy of the amount of such deficiency, confirmed in writing by notice
substantially in the form of Exhibit A to the Policy, by 12:00 p.m., New York
time on such third Business Day. The Trustee's responsibility for delivering
the notice to the Certificate Insurer as provided in the preceding sentence is
limited to the availability, timeliness and accuracy of the information
provided by the Servicer.
(b) In the event the Trustee receives a certified copy of an order of
the appropriate court that any scheduled payment of principal or interest on a
Class 1-A-3B or Class 2-A-2 Certificate has been voided in whole or in part as
a preference payment under applicable bankruptcy law, the Trustee shall (i)
promptly notify the Certificate Insurer and (ii) comply with the provisions of
the Policy, to obtain payment by the Certificate Insurer of such voided
scheduled payment. In addition, the Trustee shall mail notice to all Holders
of the Class 1-A-3B or Class 2-A-2 Certificates so affected that, in the event
that any such Holder's scheduled payment is so recovered, such Holder will be
entitled to payment pursuant to the terms of the Policy, a copy of which shall
be made available to such Holders by the Trustee. The Trustee shall furnish to
the Certificate Insurer its records listing the payments on the affected Class
1-A-3B or Class 2-A-2 Certificates, if any, that have been made by the Trustee
and subsequently recovered from the affected Holders, and the dates on which
such payments were made by the Trustee.
(c) At the time of the execution hereof, and for the purposes hereof,
the Trustee shall establish a special purpose trust account in the name of the
Trustee for the benefit of Holders of the Class 1-A-3B or Class 2-A-2
Certificates (the "Policy Payments Account") over which the Trustee shall have
exclusive control and sole right of withdrawal. The Policy Payments Account
shall be an Eligible Account. The Trustee shall deposit any amount paid under
the Policy into the Policy Payments Account and distribute such amount only
for the purposes of making the payments to Holders of the Class 1-A-3B or
Class 2-A-2 Certificates, in respect of the related Deficiency Amount for
which the related claim was made under the Policy. Such amounts shall be
allocated by the Trustee to Holders of Class 1-A-3B or Class 2-A-2
Certificates affected by such shortfalls in the same manner as principal and
interest payments are to be allocated with respect to such Certificates
pursuant to Section 4.04. It shall not be necessary for such payments to be
made by checks or wire transfers separated from the checks or wire transfers
used to make regular payments hereunder with funds withdrawn from the
Distribution Account. However, any payments made on the Class 1-A-3B or Class
2-A-2 Certificates from funds in the Policy Payments Account shall be noted as
provided in subsection (e) below. Funds held in the Policy Payments Account
shall not be invested by the Trustee.
(d) Any funds received from the Certificate Insurer for deposit into the
Policy Payments Account pursuant to the Policy in respect of a Distribution
Date or otherwise as a result of any claim under the Policy shall be applied
by the Trustee directly to the payment in full (i) of the related Deficiency
Amount on such Distribution Date or (ii) of other amounts payable under the
Policy. Funds received by the Trustee as a result of any claim under the
Policy shall be used solely for payment to the Holders of the Class 1-A-3B or
Class 2-A-3B Certificates and may not be applied for any other purpose,
including, without limitation, satisfaction of any costs, expenses or
liabilities of the Trustee, the Servicer or the Trust Fund. Any funds
remaining in the Policy Payments Account on the first Business Day after each
Distribution Date shall be remitted promptly to the Certificate Insurer in
accordance with the instructions set forth in Section 4.10.
(e) The Trustee shall keep complete and accurate records in respect of
(i) all funds remitted to it by the Certificate Insurer and deposited into the
Policy Payments Account and (ii) the allocation of
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such funds to (A) payments of interest on and principal in respect of any
Class 1-A-3B or Class 2-A-2 Certificates and (B) the amount of funds available
to make distributions on the Class 1-A-3B or Class 2-A-2 Certificates pursuant
to Sections 4.04(a), (b) and (d). The Certificate Insurer shall have the right
to inspect such records at reasonable times during normal business hours upon
three Business Days' prior notice to the Trustee.
(f) The Trustee acknowledges, and each Holder of a Class 1-A-3B or Class
2-A-2 Certificate by its acceptance of the Class 1-A-3B or Class 2-A-2
Certificate agrees, that, without the need for any further action on the part
of the Certificate Insurer or the Trustee, to the extent the Certificate
Insurer makes payments, directly or indirectly, on account of principal of or
interest on any Class 1-A-3B or Class 2-A-2 Certificates, the Certificate
Insurer will be fully subrogated to the rights of the Holders of such Class
1-A-3B or Class 2-A-2 Certificates to receive such principal and interest from
the Trust Fund. The Holders of the Class 1-A-3B or Class 2-A-2 Certificates,
by acceptance of the Class 1-A-3B or Class 2-A-2 Certificates, assign their
rights as Holders of the Class 1-A-3B or Class 2-A-2 Certificates to the
extent of the Certificate Insurer's interest with respect to amounts paid
under the Policy. Anything herein to the contrary notwithstanding, solely for
purposes of determining the Certificate Insurer's rights, as applicable, as
subrogee for payments distributable pursuant to Section 4.04, any payment with
respect to distributions to the Class 1-A-3B or Class 2-A-2 Certificates which
is made with funds received pursuant to the terms of the Policy shall not be
considered payment of the Class 1-A-3B or Class 2-A-2 Certificates from the
Trust Fund and shall not result in the distribution or the provision for the
distribution in reduction of the Class Certificate Balance of the Class 1-A-3B
or Class 2-A-2 Certificates within the meaning of Article IV.
(g) Upon its becoming aware of the occurrence of an Event of Default,
the Trustee shall promptly notify the Certificate Insurer of such Event of
Default.
(h) The Trustee shall promptly notify the Certificate Insurer of either
of the following as to which it has actual knowledge: (A) the commencement of
any proceeding by or against the Depositor commenced under the United States
bankruptcy code or any other applicable bankruptcy, insolvency, receivership,
rehabilitation or similar law (an "Insolvency Proceeding") and (B) the making
of any claim in connection with any Insolvency Proceeding seeking the
avoidance as a preferential transfer (a "Preference Claim") of any
distribution made with respect to the Class 1-A-3B or Class 2-A-2 Certificates
as to which it has actual knowledge. Each Holder of a Class 1-A-3B or Class
2-A-2 Certificate, by its purchase of Class 1-A-3B or Class 2-A-2
Certificates, and the Trustee hereby agrees that the Certificate Insurer (so
long as no Certificate Insurer Default exists) may at any time during the
continuation of any proceeding relating to a Preference Claim direct all
matters relating to such Preference Claim, including, without limitation, (i)
the direction of any appeal of any order relating to any Preference Claim and
(ii) the posting of any surety, supersedes or performance bond pending any
such appeal. In addition and without limitation of the foregoing, the
Certificate Insurer shall be subrogated to the rights of the Trustee and each
Holder of a Class 1-A-3B or Class 2-A-2 Certificate in the conduct of any
Preference Claim, including, without limitation, all rights of any party to an
adversary proceeding action with respect to any court order issued in
connection with any such Preference Claim.
(i) The Servicer shall designate a Certificate Insurer Contact Person
who shall be available to the Certificate Insurer to provide reasonable access
to information regarding the Mortgage Loans. The initial Certificate Insurer
Contact Person is to the attention of Transaction Management: Secondary
Marketing.
(j) The Trustee shall surrender the Policy to the Certificate Insurer
for cancellation upon the reduction of the aggregate Class Certificate Balance
of the Class 1-A-3B and Class 2-A-2 Certificates to zero.
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(k) The Trustee shall send to the Certificate Insurer the reports
prepared pursuant to Sections 3.17 and 11.07 and the statements prepared
pursuant to Section 4.05, as well as any other statements or communications
sent to Holders of the Class 1-A-3B or Class 2-A-2 Certificates, in each case
at the same time such reports, statements and communications are otherwise
sent.
(l) For so long as there is no continuing default by the Certificate
Insurer under its obligations under the Policy (a "Certificate Insurer
Default"), each Holder of a Class 1-A-3B or Class 2-A-2 Certificate agrees
that the Certificate Insurer shall be treated by the Depositor, the Servicer
and the Trustee as if the Certificate Insurer were the Holder of all of the
Class 1-A-3B or Class 2-A-2 Certificates, for the purpose (and solely for the
purpose) of the giving of any consent, the making of any direction or the
exercise of any voting or other control rights otherwise given to the Holders
of the Class 1-A-3B or Class 2-A-2 Certificates under this Agreement.
(m) With respect to this Section 4.09, the terms "Receipt" and
"Received" shall mean actual delivery to the Certificate Insurer, if any,
prior to 12:00 p.m., New York time, on a Business Day; delivery either on a
day that is not a Business Day or after 12:00 p.m., New York time, shall be
deemed to be Receipt on the next succeeding Business Day. If any notice or
certificate given under the Policy by the Trustee is not in proper form or is
not properly completed, executed or delivered, it shall be deemed not to have
been Received. The Certificate Insurer shall promptly so advise the Trustee
and the Trustee may submit an amended notice.
(n) All notices, statements reports, certificates or opinions required
by this Agreement to be sent to the Rating Agencies or the Class 1-A-3B or
Class 2-A-2 Certificateholders shall also be sent at such time to the
Certificate Insurer at the notice address set forth in Section 10.05.
(o) The Certificate Insurer shall be an express third party beneficiary
of this Agreement for the purpose of enforcing the provisions hereof to the
extent of the Certificate Insurer's rights explicitly specified herein as if a
party hereto.
(p) All references in this Agreement to the ratings assigned to the
Certificates and to the interests of any Certificateholders shall be without
regard to the Policy, in the case of the Class 1-A-3B or Class 2-A-2
Certificates.
(q) Payments to the Certificate Insurer will be made by wire transfer of
immediately available funds to the following account, unless the Certificate
Insurer notifies the Trustee in writing: Account Name: Ambac Assurance
Corporation, Citibank, NA, ABA # 000000000, DDA# 40609486, Re: IndyMac INDX
2006-AR2.
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ARTICLE Five
THE CERTIFICATES
Section 5.01 The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the
minimum denominations, integral multiples of $1,000 in excess thereof (except
that one Certificate in each Class may be issued in a different amount which
must exceed the applicable minimum denomination) and aggregate denominations
per Class set forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions
to each Certificateholder of record on the preceding Record Date either (x) by
wire transfer in immediately available funds to the account of such holder at
a bank or other entity having appropriate facilities therefor, if such Holder
has so notified the Trustee at least five Business Days before the related
Record Date or (y) by check mailed by first class mail to such
Certificateholder at the address of such holder appearing in the Certificate
Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or
facsimile signatures of individuals who were, at the time such signatures were
affixed, authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates
or did not hold such offices at the date of such Certificate. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates shall be dated the date of their countersignature.
On the Closing Date, the Trustee shall countersign the Certificates to be
issued at the direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02 Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b)
and (c) below and to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. Upon surrender for
registration of transfer of any Certificate, the Trustee shall execute and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates of the same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making
the exchange is entitled to receive. A written instrument of transfer in form
satisfactory to the Trustee duly executed by the holder of a Certificate or
his attorney duly authorized in writing shall accompany every Certificate
presented or surrendered for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance
with the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and such state securities laws, to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trustee in writing the facts surrounding the
transfer in substantially the form set forth in Exhibit J (the "Transferor
Certificate") and deliver to the Trustee either (i) a letter in substantially
the form of either Exhibit K (the "Investment Letter") or Exhibit L (the "Rule
144A Letter") or (ii) at the expense of the transferor, an Opinion of Counsel
that the transfer may be made without registration under the Securities Act.
The Depositor shall provide to any Holder of a Private Certificate and any
prospective transferee designated by that Holder, information regarding the
related Certificates and the Mortgage Loans and any other information
necessary to satisfy the condition to eligibility in Rule 144A(d)(4) for
transfer of the Certificate without registration thereof under the Securities
Act pursuant to the registration exemption provided by Rule 144A. The Trustee
and the 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
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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 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.
Prior to the termination of the Swap Trust, 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 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) 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
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Permitted Transferee, all payments made on such Residual Certificate at and
after either such time. Any such payments so recovered by the Trustee shall be
paid and delivered by the Trustee to the last preceding Permitted Transferee
of such Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder who
is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in
this Section 5.02(c) shall cease to apply (and the applicable portions of the
legend on a Residual Certificate may be deleted) with respect to Transfers
occurring after delivery to the Trustee of an Opinion of Counsel, which
Opinion of Counsel shall not be an expense of the Trust Fund, the Trustee, the
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,
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Certificate Owners representing at least 51% of the Certificate Balance of the
Book-Entry Certificates together advise the Trustee and the Depository through
the Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the
Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the
instructions from the Depository for registration, the Trustee shall issue the
Definitive Certificates. 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 (and, with respect
to the Class 1-A-3B and Class 2-A-2 Certificates, the Certificate Insurer)
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 or the Certificate Insurer and any agent of
the Servicer, the Trustee or the Certificate Insurer may treat the Person in
whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for
all other purposes whatsoever, and none of the Servicer, the Trustee or the
Certificate Insurer, nor any agent of the Servicer, the Trustee or the
Certificate Insurer 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
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Certificate Owner, by receiving and holding a Certificate, agree that the
Trustee shall not be held accountable because of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
Section 5.06 Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or agency
or agencies in New York City located at c/o 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 and the Certificate Insurer 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 legal action that is not incidental to its respective
duties hereunder and which in its opinion may involve it in any expense or
liability; provided, however, that any of the Depositor, the Seller or the
Servicer may in its discretion undertake any such 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 (without regard to the Policy) 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, 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% (subject to the consent of the Certificate
Insurer), 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 the obligations that constitute a Limited
Exchange Act Reporting Obligation or the obligations set forth in
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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 accordance with Section
7.01, the Trustee may, if it shall be unwilling to so act, or shall, if it is
prohibited
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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, to the Certificate Insurer 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 (subject to the consent of the Certificate Insurer, which
consent shall not be unreasonably withheld) 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:
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(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such Opinion of
Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing so to do by Holders of
Certificates evidencing not less than 25% of the Voting Rights allocated to
each Class of Certificates; 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
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transactions in certain Permitted Investments. The Trustee does not guarantee
the performance of any Permitted Investment; and
(k) The Trustee shall not knowingly take any action that would cause the
Trust Fund to fail to qualify as a qualifying special purpose entity.
To help fight the funding of terrorism and money laundering activities,
the Trustee will obtain, verify, and record information that identifies
individuals or entities that establish a relationship or open an account with
the Trustee. The Trustee will ask for the name, address, tax identification
number and other information that will allow the Trustee to identify the
individual or entity who is establishing the relationship or opening the
account. The Trustee may also ask for formation documents such as articles of
incorporation, an offering memorandum, or other identifying documents to be
provided.
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.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the 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
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(a) this Agreement, (b) the Certificates, or (c) the performance of any
of the Trustee's duties under this Agreement, other than any loss, liability
or expense incurred because of willful misfeasance, bad faith or negligence in
the performance of any of the Trustee's duties hereunder or incurred by reason
of any action of the Trustee taken at the direction of the Certificateholders
under this Agreement. This indemnity shall survive the termination of this
Agreement or the resignation or removal of the Trustee under this Agreement.
Without limiting the foregoing, except as otherwise agreed upon in writing by
the Depositor and the Trustee, and except for any expense, disbursement, or
advance arising from the Trustee's negligence, bad faith, or willful
misconduct, the 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 (A) the reasonable
compensation, expenses, and disbursements of its counsel not associated with
the closing of the issuance of the Certificates, and
(B) the reasonable compensation, expenses, and disbursements of any
accountant, engineer, or appraiser that is not regularly employed by the
Trustee, to the extent that the Trustee must engage them to perform services
under this Agreement.
Except as otherwise provided in this Agreement, the Trustee shall not be
entitled to payment or reimbursement for any routine ongoing expenses incurred
by the Trustee in the ordinary course of its duties as Trustee, Registrar, or
Paying Agent under this Agreement or for any other expenses.
Section 8.06 Eligibility Requirements for the Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of a state or the United States of
America, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, subject to supervision
or examination by federal or state authority and with a credit rating which
would not cause either of the Rating Agencies to reduce their respective then
current ratings of the Certificates (or having provided such security from
time to time as is sufficient to avoid such reduction) as evidenced in writing
by each Rating Agency. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with this Section 8.06,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The entity serving as Trustee may have normal
banking and trust relationships with the Depositor and its affiliates or the
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.
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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 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 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
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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 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
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such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, 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 each of the Carryover Reserve Fund and the Swap
Trust as an outside reserve fund within the meaning of Treasury Regulation
1.860G-2(h) that are owned by the Holders of the Class C Certificates. The
Carryover Reserve Fund shall be treated as owned by the Holders of the Class C
Certificates. The Carryover Reserve Fund shall not be an asset 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 (excluding any monies distributed from the Carryover Reserve Fund
on the first three Distribution Dates following the Closing Date) 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. 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.
For purposes of determining the issue price of the Master REMIC regular
interests, the Trustee shall assume that the cap contracts entered into by (a)
the Class 1-A-1B, Class 2-A-1 and Class 2-A-2 Certificates have a value,
$87,108.05, $46,532.01 and $25,359.94, respectively.
The Trustee shall account for the Swap Trust 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 hereunder. For federal income tax purposes, Net Swap
Payment Amounts and Swap Termination Payments payable to the Swap Counterparty
shall be deemed to be paid to the Swap Trust first, from the Master REMIC, by
the Holder of the Class X Certificates and second, from the Master REMIC by
the Holders of the applicable Class or Classes of LIBOR Certificates as and to
the extent provided below.
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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 Swap 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. If any such termination will result in a Deficiency Amount on the
Policy or any amounts would remain owing to the Certificate Insurer, the
consent of the Certificate Insurer will also be required prior to exercising
such option.
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 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.
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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
and the Certificate Insurer. 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, the Certificate Insurer 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 and the
Certificate Insurer, in each case on the final Distribution Date and in the
order set forth in Section 4.02, in proportion to their respective Percentage
Interests or amounts allocable to the Certificate Insurer, with respect to
Certificateholders of the same Class, 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.
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
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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 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.
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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 (without regard to the Policy). 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),
(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, or
(iv) adversely affect in any material respect the rights and interests of
the Certificate Insurer in any of the following provisions of this Agreement
without its consent, which consent shall not be unreasonably withheld: (I) the
definitions of "Class 1-A-3B Policy Premium," "Class 2-A-2 Policy Premium" and
"Reimbursement Amount" in Article I, (II) the priority of payments to the
Certificate Insurer pursuant to Sections 4.02(a)(1), 4.02(a)(1)(ii),
4.02(a)(2) and 4.02(a)(2)(ii) and (III) Sections 4.01, 4.10 and 10.01.
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, the Certificate Insurer 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.
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Section 10.02 Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the 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;
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3. The resignation or termination of the Servicer or the Trustee and the
appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03; and
5. The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
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., 0000 Xxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, 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 IN06A2, Series 2006-AR2, 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
Certificate Insurer, to Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: IndyMac INDX 2006-AR2 (telecopy number
212-208-3547), or such other address or telecopy number as may be furnished to
the Depositor, the Servicer and the Trustee in writing by the Certificate
Insurer, and (f) in the case of the Swap Counterparty, IXIS Financial Products
Inc., 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Fax:
(000) 000-0000. 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.
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Section 10.08 Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a petition
or winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties to this
Agreement, nor shall anything herein set forth or contained in the terms of
the Certificates be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party because of any
action taken by the parties to this Agreement pursuant to any provision of
this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee a
written notice of an Event 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.
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Section 10.10 Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any
reason whatsoever, and that the Certificates, upon due authentication thereof
by the Trustee pursuant to this Agreement, are and shall be deemed fully paid.
Section 10.11 Official Record.
The Seller agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of the
Seller as referred to in Section 13(e) of the Federal Deposit Insurance Act.
Section 10.12 Protection of Assets.
(a) Except for transactions and activities entered into in connection
with the securitization that is the subject of this Agreement, the trust
created by this Agreement is not authorized and has no power to:
(1) borrow money or issue debt;
(2) merge with another entity, reorganize, liquidate or sell assets;
(3) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid in full.
Section 10.13 Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust Fund
shall not hold any property or engage in any activity that would disqualify
the Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles.
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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 calandar 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.
Except with respect to the Form 10-D to be filed following the first
Distribution Date, 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 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
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any Form 10-D Disclosure Item, together with a description of any such Form
10-D Disclosure Item in form and substance reasonably 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 Depsoitor shall provide
each of the Servicer nd the Trustee 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, to
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the following information no later than March 15 of each year in 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 S
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,
the Certificate Insurer 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 such Person, with respect to asset-backed securities transactions taken as
a whole
126
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,
the Certificatge Insurer 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 that 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.
(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).
127
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.
* * * * * *
128
IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
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: Senior Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of February, 2006, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Senior 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 X. Xxxxxx
------------------------------------
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 24th day of February, 2006, before me, personally appeared Xxxxxxxx
Xxxxxxxxxxx and Xxxxxxx Xxxxxxxx, known to me to be an Associate and an 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/ Xxxxx Xxxxxx
------------------------------
Notary Public
[NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 27th day of February, 2006, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Senior 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 X. Xxxxxx
------------------------------------
Notary Public
[NOTARIAL SEAL]
3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR2
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, the Certificate
Insurer 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.
(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
S-II-1
governmental body having jurisdiction over it (including the OTS, the
Federal Deposit Insurance Corporation or any other governmental entity
having regulatory authority over IndyMac) which breach or violation may
materially impair IndyMac's ability to perform or meet any of its
obligations under the Pooling and Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage loans
for FNMA or FHLMC or is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
(5) No litigation is pending or, to the best of IndyMac's knowledge,
threatened against IndyMac that would prohibit the execution or delivery
of, or performance under, the Pooling and Servicing Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in connection
with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans are registered with MERS.
(7) Notwithstanding any federal or state law to the contrary, the
Servicer shall not impose such Prepayment Charge at any time when the
mortgage is accelerated as a result of the borrower's default in making
the scheduled payments.
(8) The Servicer will transmit full-file credit reporting data for
each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19 and
that for each Mortgage Loan, Servicer agrees it shall report one of the
following statuses each month as follows: new origination, current,
delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR2
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, the Certificate
Insurer 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.
(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) There was no delinquent tax or assessment lien against the
related Mortgaged Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor to
pay the unpaid principal of or interest on such Mortgage Note.
S-III-1
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien
prior to or equal with, the lien of such Mortgage, except those which are
insured against by the title insurance policy referred to in item (11)
below.
(8) 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,
and negative amortization endorsement in an amount at least equal to the
Cut-off Date Principal Balance of each such Mortgage Loan or a commitment
(binder) to issue the same was effective on the date of the origination
of each Mortgage Loan and each such policy is valid and remains in full
force and effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by
an entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) To the best of the Seller's knowledge, all of the improvements
which were included for the purpose of determining the Appraised Value of
the Mortgaged Property lie wholly within the boundaries and building
restriction lines of such property, and no improvements on adjoining
properties encroach upon the Mortgaged Property, unless such failure to
be wholly within such boundaries and restriction lines or such
encroachment, as the case may be, does not have a material effect on the
value of the Mortgaged Property.
(14) To the best of the Seller's knowledge, as of the date of
origination of each Mortgage Loan, no improvement located on or being
part of the Mortgaged Property is in violation of any applicable zoning
law or regulation unless such violation would not have a material adverse
effect on the value of the related Mortgaged Property. To the best of the
Seller's knowledge, all inspections, licenses and certificates required
to be made or issued with respect to all occupied portions of the
Mortgaged Property and, with respect to the use and occupancy of the
same, including certificates of occupancy and fire underwriting
certificates, have been made or obtained from the appropriate
authorities, unless the lack thereof would not have a material adverse
effect on the value of the Mortgaged Property.
S-III-2
(15) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(16) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such
Mortgage, and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(19) At the Cut-off Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with
a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customarily required
by institutional single family mortgage lenders in the area where the
Mortgaged Property is located, and the 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) To the best of the Seller's knowledge, there is no proceeding
pending or threatened for the total or partial condemnation of any
Mortgaged Property, nor is such a proceeding currently occurring.
(22) To the best of the Seller's knowledge, there is no material
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a material non-monetary
default, breach, violation or event of acceleration under the Mortgage or
the related Mortgage Note; and the Seller has not waived any material
non-monetary default, breach, violation or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC. Appraisal Form
1004 or Form 2055 has been obtained.
(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.
S-III-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) None 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 abusing lending
laws.
(29) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(30) [Reserved].
(31) No proceeds from any Mortgage Loan underlying the Certificates
were used to finance single-premium credit insurance policies.
(32) None of the Mortgage Notes related to the Mortgage Loans impose
a Prepayment Charge on the related Mortgage Loan for a term in excess of
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.
S-III-4
(37) With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity:
(i) prior to the Mortgage Loan's origination, the borrower agreed to such
premium in exchange for a monetary benefit, including but not limited to
an interest rate or fee reduction, (ii) prior to the Mortgage Loan's
origination, the borrower was offered the option of obtaining a mortgage
loan that did not require payment of such a premium, (iii) the Prepayment
Charge is disclosed to the borrower in the loan documents pursuant to
applicable state and federal law and (iv) for Mortgage Loans originated
on or after September 1, 2004, the duration of the prepayment period
shall not exceed three years from the date of the Mortgage Note, unless
the Mortgage Loan was modified to reduce the prepayment period to no more
than three years from the date of the Mortgage Note and the borrower was
notified in writing of such reduction in the prepayment period.
(38) No borrower was required to purchase any credit life,
disability, accident or health insurance product as a condition of
obtaining the extension of credit. No borrower obtained a prepaid
single-premium credit life, credit disability, credit unemployment,
credit property, disability, accident or health insurance policy in
connection with the origination of the Mortgage Loan; no proceeds from
any Mortgage Loan were used to purchase single premium credit insurance
policies as part of the origination of, or as a condition to closing,
such Mortgage Loan.
(39) All points and fees related to each Mortgage Loan were
disclosed in writing to the borrower in accordance with applicable state
and federal law and regulation. Except in the case of a Mortgage Loan in
an original principal amount of less than $60,000 that would have
resulted in an unprofitable origination, no borrower was charged "points
and fees" (whether or not financed) in an amount greater than 5% of the
principal amount of such loan, such 5% limitation calculated in
accordance with Xxxxxx Mae's anti-predatory lending requirements as set
forth in the Xxxxxx Mae Selling Guide.
(40) All fees and charges (including finance charges), whether or
not financed, assessed, collected or to be collected in connection with
the origination and servicing of each Mortgage Loan has been disclosed in
writing to the borrower in accordance with applicable state and federal
law and regulation.
(41) Each Mortgage Loan was in compliance with the anti-predatory
lending eligibility for purchase requirements of Xxxxxx Mae's Selling
Guide.
(42) No Mortgage Loan is a "High-Cost Home Loan" as defined in any
of the following statutes: the Georgia Fair Lending Act, as amended (the
"Georgia Act"), the New York Banking Law 6-1, the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003), the Kentucky
high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100), the New Jersey Home Ownership Act effective November
27, 2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx xx.xx. 58-21A-1
et seq.). 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.).
S-III-5
(43) Each Group 1 Mortgage Loan had a principal balance at
origination that conformed to Xxxxxx Mae and Xxxxxxx Mac guidelines.
(44) 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.
(45) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.6 Revised,
Appendix E) and no Mortgage Loan originated on or after Oct. 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
(46) 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.
(47) 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.
(48) The Servicer has fully furnished, in accordance with the Fair
Credit Reporting Act and its implement regulations, accurate and complete
information (i.e., favorable and unfavorable) on the credit files for the
related Mortgagor for each Group 1 Mortgage Loan to Equifax, Experian and
Trans Union Credit Information Company on a monthly basis.
(49) Each Group 1 Mortgage Loan is a "qualified mortgage" under
Section 860G(a)(3) of the Code.
(50) With respect to any Group 1 Mortgage Loan originated on or
after August 1, 2004, neither the related Mortgage nor the related
Mortgage Note requires the borrower to submit to arbitration to resolve
any dispute arising out of or relating in any way to the Group 1 Mortgage
Loan transaction.
S-III-6
Schedule IV
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR2
Form of Monthly Report
S-IV-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE (other than Notional Amount Certificates)]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
PRIOR TO THE TERMINATION OF THE SWAP 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 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 XX XXXX
96-23. ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF
THE SWAP 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.
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the 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"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-2
Prior to the termination of the Swap Trust, 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 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.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[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.]
PRIOR TO THE TERMINATION OF THE SWAP 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 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 XX XXXX
96-23. ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF
THE SWAP 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.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF THE
CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, DELIVERS
A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING
ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF
THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS
DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.]
B-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [___]
evidencing a percentage interest in the distributions
allocable to the Certificates of the above-referenced Class with
respect to a Trust Fund consisting primarily of a pool of
conventional mortgage loans (the "Mortgage Loans") secured by
first liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the 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"). 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-2
[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.]
[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 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.
B-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-4
EXHIBIT C
[FORM OF CLASS R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH
PURCHASER IS AN INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE
TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate
Balance of this
Certificate
("Denomination") : $
Initial Certificate
Balances of all
Certificates of this
Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class 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"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class R Certificate
at the Corporate Trust Office.
C-2
No transfer of a Class R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such transferee is not an employee benefit plan or
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 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 R Certificate to or
on behalf of an employee benefit plan subject to ERISA or to the Code without
the opinion of counsel satisfactory to the Trustee as described above shall be
void and of no effect.
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 R Certificate must be a Permitted Transferee, (ii) no Ownership
Interest in this Class 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 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 R Certificate must agree not to transfer an
Ownership Interest in this Class 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 R Certificate in
violation of such restrictions will be absolutely null and void and will vest
no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-4
EXHIBIT D
[FORM OF NOTIONAL AMOUNT CERTIFICATE]
[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").
PRIOR TO THE TERMINATION OF THE SWAP 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 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 XX XXXX
96-23. ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF
THE SWAP 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.
THIS CERTIFICATE HAS NO PRINCIPAL BALANCE AND IS NOT ENTITLED TO ANY
DISTRIBUTIONS IN RESPECT OF PRINCIPAL.
D-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Notional Amount
of this Certificate
("Denomination") :
Initial Notional Amount
of all Certificates
of this Class :
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
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
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.
D-2
This certifies that __________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Notional Amounts of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as Servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
D-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
D-4
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, 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
Stated 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.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
_____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_________________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to _________________________
______________________________________________________________________________,
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________,
______________________________________________________________________________.
This information is provided by _________________________________________,
the assignee named above, or _________________________________________________,
as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
On the th day of , 20 before me, a notary public in and for said State,
personally appeared , known to me who, being by me duly sworn, did depose and
say that he executed the foregoing instrument.
____________________________________
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE 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.
F-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class P
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Distributors in respect of this Certificate are distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the 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"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
F-2
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the Collection Account and the Distribution Account may be made from time to
time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans.
This Certificate does not have a Certificate Balance or Pass-Through Rate and
will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such (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.
* * *
F-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ____________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
F-4
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
F-5
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
Stated 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-6
ASSIGNMENT
----------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________
Dated:
_________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _______________________________________________
______________________________________________________________________________,
for the account of ___________________________________________________________,
account number , or, if mailed by check, to _______________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
______________________________________________________________________________,
______________________________________________________________________________.
This information is provided by _______________________________________,
the assignee named above, or ________________________________________________,
as its agent.
F-7
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the ___th day of ______________, 20___ before me, a notary public in
and for said State, personally appeared ________________, known to me who,
being by me duly sworn, did depose and say that he executed the foregoing
instrument.
_______________________________
Notary Public
[Notarial Seal]
F-8
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) a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments); provided, however, that it has received
no assignment with respect to any Mortgage for which the Mortgaged Property is
located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:___________________________________
Name:
Title:
G-1-2
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) a duly executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and Servicing
Agreement dated as of January 1, 2005, 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-3-1
(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-3-2
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) A duly executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the 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-1-1
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)
I-1
of the Agreement and the restrictions noted on the face of the Certificate.
The Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is _________________.
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee is not a foreign permanent establishment or fixed base
(within the meaning of an applicable income tax treaty) of a U.S. taxpayer.
12. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. Either:
(a) (i) At the time of the transfer, and at the close of each of the
Transferee's two fiscal years preceding the Transferee's fiscal year of
transfer, the Transferee's gross assets for financial reporting purposes
exceed $100 million and its net assets for financial reporting purposes
exceed $10 million. For purposes of the preceding sentence, the gross
assets and net assets of a Transferee do not include any obligation of
any Related Person, as defined below, or any other asset if a principal
purpose for holding or acquiring the other asset is to permit the
Transferee to satisfy the conditions of this paragraph 15(a); (ii) The
Transferee is an Eligible Corporation, as defined below, and hereby
agrees that any subsequent transfer of the interest will be to another
Eligible Corporation in a transaction that satisfies this Transfer
Affidavit, including this paragraph 15(a); and (iii) The Transferee has
not given the Transferor any reason to know that the Transferee will not
honor the restrictions on subsequent transfers of the residual interest
or that the Transferee cannot or will not pay any taxes associated with
the residual interest; or
I-2
(b)(i) The Transferee is a United States Person; (ii) The present
value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (A) The present value of
any consideration given to the Transferee to acquire the interest; (B)
The present value of the expected future distributions on the interest;
and (C) The present value of the anticipated tax savings associated with
holding the interest as any REMIC generates losses; and (iii) For
purposes of calculating the aforementioned present values: (A) The
transferee has assumed that it pays tax at a rate equal to the highest
rate of tax specified in Code Section 11(b)(1) (unless the Transferee has
been subject to the alternative minimum tax under Code Section 55 in the
preceding two years and will compute its taxable income in the current
taxable year using the alternative minimum tax rate, in which case the
Transferee can assume that it pays tax at the rate specified in Code
Section 55(b)(1)(B) provided the Transferee states in this Transfer
Affidavit that it is using such alternate rate and that has been subject
to the alternative minimum tax under Code Section 55 in the preceding two
years and will compute its taxable income in the current taxable year
using the alternative minimum tax rate):and (B) The Transferee uses a
discount rate equal to the Federal short-term rate prescribed by section
1274(d) for the month of the transfer and the compounding period used by
the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
15. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or with plan assets of such a plan;
or (ii) the Transferee is an insurance company that is investing funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and the purchase and holding of the Class R Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60.
* * *
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this ____ day of _____________, 20__.
________________________________________
Print Name of Transferee
By:_____________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to
be the same person who executed the foregoing instrument and to be the _______
of the Transferee, and acknowledged that he executed the same as his free act
and deed and the free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of _________________, 20__.
__________________________________
NOTARY PUBLIC
My Commission expires the ___day of ______,
20__.
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Restricted Certificate, (iv) a rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing large partnership"
as defined in Code Section 775 of (vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
limited liability company, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Residual Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the
form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not
to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual
Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions
of this Section 5.02(c) shall be absolutely null and void and
shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section
5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the
Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
I-6
(v) The Depositor shall use its best efforts to make
available, upon receipt of written request from the Trustee, all
information necessary to compute any tax imposed under Section
860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a
Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: S. Xxxxx Xxxxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our 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
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: S. Xxxxx Xxxxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
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
K-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
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: S. Xxxxx Xxxxxxxxx
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such acquisition, or (ii) 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
L-1
for our own account or for resale pursuant to Rule 144A and further,
understand that such Certificates may be resold, pledged or transferred only
(A) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being
made in reliance on Rule 144A, or (B) pursuant to another exemption from
registration under the Act and (i) if we are a corporation purchasing the
Certificates in the State of California, we have a net worth of at least
$14,000,000 according to our most recent audited financial statements.
Very truly yours,
__________________________________
Print Name of Transferee
By:_______________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the
-------------------------------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least $10,000,000
in securities.
L-3
insurance commissioner or a similar official or agency of a
State, territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions, for
the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties to the Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer may be in reliance on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
L-4
__________________________________
Print Name of Buyer
By:_________________________________
Name:
Title:
____________________________________
Date:
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other than the
excluded securities referred to below) as of the end of the Buyer's
most recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
L-6
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
____________________________________
Print Name of Buyer
By:_________________________________
Name:
Title:
____________________________________
Date:
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
----------------
Name of Mortgagor:
Servicer
Loan No.: ________________________
Trustee
-------
Name: ________________________
Address: ________________________
________________________
Trustee
Mortgage File No.:
The undersigned 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
________________.
M-1
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Servicer assert or seek to assert any
claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when
the need therefor no longer exists, unless the Mortgage Loan
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except
as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Servicer shall at all times be earmarked for the account of the
Trustee, and the Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the
Servicer's possession, custody or control.
INDYMAC BANK, F.S.B.
By: _________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated February 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.
N-1
INDYMAC BANK, F.S.B.
000 Xxxxx Xxxx Xxx.
Xxxxxxxx, XX 00000
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
N-2
EXHIBIT O
---------
FORM OF TRUSTEE CERTIFICATION
-----------------------------
To: IndyMac MBS, Inc.
IndyMac Bank, F.S.B.
Re: The Pooling and Servicing Agreement dated February 1, 2006 among IndyMac
Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
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Ladies and Gentlemen:
In connection with the delivery of the Required Certifications on behalf
of the Trust Fund, we certify, based on the information provided by the
Servicer to the Trustee, the information contained in the Monthly Statements,
taken as a whole, does not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading as of
the last day of the period covered by any Required Certification.
DEUTSCHE BANK NATIONAL TRUST COMPANY
By:__________________________
Name:________________________
Title:_______________________
Date:________________________
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 P-3
[On File with the Trustee]
P-3-1
Exhibit P-4
[On File with the Trustee]
P-4-1
EXHIBIT Q
---------
MONTHLY STATEMENT
Q-1
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of February 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");
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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
(v) 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
R-2-1
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:
R-2-2
EXHIBIT S
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
S-1
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
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Party Contact Information
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T-1
EXHIBIT U
[FORM OF] XXXXXXXX-XXXXX CERTIFICATION
(Replacement of Servicer)
U-1
