EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Between
INDYMAC BANK, F.S.B.,
Seller
and
INDYMAC MBS, INC.,
Purchaser
Dated as of September 29, 2006
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.............................................. 1
Section 1.01. Definitions........................................ 1
ARTICLE II SALE OF MORTGAGE LOANS BY SELLER; PAYMENT OF PURCHASE
PRICE.................................................... 1
Section 2.01. Sale of Mortgage Loans............................. 1
Section 2.02. Obligations of Seller Upon Sale.................... 2
Section 2.03. Payment of Purchase Price for the Mortgage Loans... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER; REMEDIES
FOR BREACH............................................... 5
Section 3.01. Seller Representations and Warranties Relating to
the Mortgage Loans................................. 5
Section 3.02. Seller Representations and Warranties - General.... 6
ARTICLE IV SELLER'S COVENANTS....................................... 8
Section 4.01. Covenants of the Seller............................ 8
ARTICLE V TERMINATION.............................................. 8
Section 5.01. Termination........................................ 8
ARTICLE VI MISCELLANEOUS PROVISIONS................................. 9
Section 6.01. Amendment.......................................... 9
Section 6.02. Governing Law...................................... 9
Section 6.03. Notices............................................ 9
Section 6.04. Severability of Provisions......................... 9
Section 6.05. Counterparts....................................... 10
Section 6.06. Further Agreements................................. 10
Section 6.07. Intention of the Parties........................... 10
Section 6.08. Successors and Assigns: Assignment of Agreement.... 10
Section 6.09. Survival........................................... 11
Schedule I Mortgage Loan Schedule
i
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of September 29, 2006 (this
"Agreement"), between IndyMac Bank, F.S.B. (the "Seller") and IndyMac MBS, Inc.
(the "Purchaser").
W I T N E S S E T H
WHEREAS, the Seller is the owner of the notes or other evidence of
indebtedness relating to certain home equity line of credit loans (the "Mortgage
Notes") indicated on Schedule I hereto (the "Mortgage Loan Schedule") and the
Related Documents (as defined in Section 2.02 below, and together with the
Mortgage Notes, the "Mortgage Loans"); and
WHEREAS, the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the related mortgaged properties (the "Mortgaged Properties")
securing the Mortgage Loans, including rights to (a) any property acquired by
foreclosure or deed in lieu of foreclosure or otherwise and (b) the proceeds of
any insurance policies covering the Mortgage Loans or the Mortgaged Properties
or the obligors on the Mortgage Loans; and
WHEREAS, the parties hereto desire that the Seller sell the Mortgage Loans
to the Purchaser pursuant to the terms of this Agreement; and
WHEREAS, pursuant to the terms of a Sale and Servicing Agreement dated as
of September 14, 2006 (the "Sale and Servicing Agreement") among the Purchaser,
as the seller, the Seller, as the servicer, IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series 2006-H3 (the "Trust"), and Deutsche Bank National
Trust Company, as the indenture trustee (the "Indenture Trustee"), the Purchaser
will convey the Mortgage Loans to the Trust and the Servicer will service the
Mortgage Loans owned by the Trust.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Sale and Servicing
Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS BY SELLER; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of Mortgage Loans. The Seller, concurrently with the
execution and delivery of this Agreement, does hereby sell, assign, set over,
and otherwise convey to the Purchaser, without recourse, all of its right, title
and interest in and to (i) each Mortgage Loan listed on the Mortgage Loan
Schedule on the Closing Date and the related Mortgage File (including the
related Mortgage Note and Mortgage), including its Cut-off Date Principal
Balance (including all Additional Balances resulting from Draws made pursuant to
the related Mortgage Note prior to the termination of the Trust) and all related
collections in respect of such Mortgage Loan received after the Cut-off Date
(excluding any scheduled interest payments due on or prior to the Cut-off Date);
provided, however, that the Purchaser does not assume any
obligation under any Mortgage Note to fund any such future Draws, and the
Purchaser will not be obligated or permitted to fund any such future Draws);
(ii) related Mortgaged Property which secured such Mortgage Loan and which has
been acquired by foreclosure or deed in lieu of foreclosure; (iii) its rights
under any related insurance policies maintained in respect of the Mortgage Loans
(including any Insurance Proceeds); and (iv) all proceeds of any of the
foregoing.
Section 2.02. Obligations of Seller Upon Sale. (a) In connection with the
transfer pursuant to Section 2.01 hereof, the Seller further agrees, at its own
expense, on or prior to the Closing Date, (a) to indicate in its books and
records that the Mortgage Loans have been sold to the Purchaser or to the
Indenture Trustee as assignee of the Purchaser pursuant to this Agreement and
(b) to deliver to the Purchaser (or its designee, the Indenture Trustee) a
computer file containing a true and complete list of all such Mortgage Loans
specifying, among other things, for each such Mortgage Loan, as of the Cut-off
Date, (1) its account number and (2) the Cut-off Date Principal Balance. Such
file, which forms a part of Exhibit A to the Sale and Servicing Agreement, shall
also be marked as Schedule I to this Agreement and is hereby incorporated into
and made a part of this Agreement.
(b) In connection with such transfer by the Seller, the Seller agrees to:
(i) on behalf of the Purchaser, on or before the Closing Date,
deliver to and deposit with the Purchaser (or its designee, the Indenture
Trustee), the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with the
Purchaser (or its designee, the Indenture Trustee) the Mortgage Note in
respect of each Mortgage Loan together with the following documents
relating to each such Mortgage Loan (the "Related Documents") on or before
the Closing Date. The Mortgage Note and the Related Documents shall be in
the following form:
(A) the original Mortgage Note, endorsed in blank, or a copy
of such original Mortgage Note with an accompanying Lost Note
Affidavit;
(B) if such Mortgage Loan is not a MERS Mortgage Loan, the
original Assignment of Mortgage from the Seller to "Deutsche Bank
National Trust Company, as Indenture Trustee for IndyMac Home Equity
Mortgage Loan Asset-Backed Trust, Series 2006-H3", which assignment
shall be in form and substance acceptable for recording;
(C) the original Mortgage, with evidence of recording thereon,
provided, that if the original Mortgage has been delivered for
recording to the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located but has not
yet been returned to the Seller by such recording office, the Seller
shall deliver to the Indenture Trustee a certified true copy of such
original Mortgage so certified by the Seller, together with a
certificate of the Seller certifying that such original Mortgage has
been so delivered to such recording office; in all such instances,
the Seller shall deliver or cause to be
2
delivered the original recorded Mortgage to the Indenture Trustee
promptly upon receipt of the original recorded Mortgage;
(D) intervening assignments, if any, with evidence of
recording thereon, provided that if such intervening assignment has
been delivered for recording to the appropriate public recording
office of the jurisdiction in which the Mortgaged Property is
located but has not yet been returned to the Seller by such
recording office, the Seller shall deliver to the Indenture Trustee
a certified true copy of such intervening assignment so certified by
the Seller, together with a certificate of the Seller certifying
that such intervening assignment has been so delivered to such
recording office; in all such instances, the Seller shall deliver or
cause to be delivered the original intervening assignment to the
Indenture Trustee promptly upon receipt of the original intervening
assignment; and
(E) originals of all assumption and modification agreements,
if any,
provided, however, that as to any Mortgage Loan, if as evidenced by an Opinion
of Counsel delivered to and in form and substance satisfactory to the Indenture
Trustee, the Insurer and the Rating Agencies, (x) an optical image or other
representation of the related documents specified in clauses (ii)(C), (D) and
(E) above is enforceable in the relevant jurisdictions to the same extent as the
original of such document and (y) such optical image or other representation
does not impair the ability of an owner of such Mortgage Loan to transfer or
perfect its interest in such Mortgage Loan, such optical image or other
representation may be delivered as required in clause (ii) above.
The Seller hereby confirms to the Purchaser that it has made the
appropriate entries in its general accounting records, to indicate clearly and
unambiguously that such Mortgage Loans have been sold to the Purchaser by the
Seller, then subsequently sold by the Purchaser to the Trust and constitute part
of the Trust in accordance with the terms of the Sale and Servicing Agreement.
The Purchaser hereby acknowledges its acceptance of all right, title and
interest to the Mortgage Loans and other property, now existing and hereafter
created, conveyed to it pursuant to Section 2.01 above.
The Seller acknowledges that the Indenture Trustee is required to review
the Mortgage Notes and the Related Documents pursuant to Sections 2.01(e) and
(f) of the Sale and Servicing Agreement and if the Indenture Trustee finds any
document or documents not to have been properly executed, or to be missing or to
be defective in any material respect, the Indenture Trustee is required to
notify the Seller. If the Seller does not within the time period specified in
Section 2.02(b) of the Sale and Servicing Agreement correct or cure such
omission or document deficiency, the Seller shall either repurchase such
relevant Mortgage Loan directly from the Trust or substitute an Eligible
Substitute Mortgage Loan for such Mortgage Loan, in either case, within the time
frame and in the manner specified in Section 2.02(b) of the Sale and Servicing
Agreement.
3
The parties hereto expressly intend that the transaction set forth herein
be a sale by the Seller to the Purchaser of all the Seller's right, title and
interest in and to the Mortgage Loans described above. It is, further, not the
parties' intent that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to the Purchaser to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the parties' intent, the transaction
set forth herein is deemed not to be a sale, the Seller hereby grants to the
Purchaser a security interest in all of the Seller's right, title and interest
in, to and under the Mortgage Loans, whether now existing or hereafter created,
to secure all of the Seller's obligations hereunder; and this Agreement shall
constitute a security agreement under applicable law, including, without
limitation, Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state. The Seller and the Purchaser 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 Mortgage Loans,
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 Sale and Servicing Agreement.
Without limiting the generality of the foregoing, the Seller hereby agrees
to take such actions described in Section 2.01(a) of the Sale and Servicing
Agreement as are necessary to complete and file any UCC Financing Statements and
any continuation statements required to perfect and protect the Purchaser's
interest in the Mortgage Loans.
Section 2.03. Payment of Purchase Price for the Mortgage Loans. (a) In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on or before the Closing Date, the Purchaser agrees to pay to the Seller on the
Closing Date by transfer of immediately available funds, an amount equal to
$495,734,584.00. The Purchaser shall initially retain the Class M1 Notes, the
Class M2 Notes, the Class B Certificates, the Class L Certificates and the Class
R Certificates and any value attributable thereto shall be deemed a capital
contribution by the Seller to the Purchaser.
(b) Each Mortgage Note permits the related Mortgagor to make Draws against
its Mortgage Loan. Such Draws will create Additional Balances, which Additional
Balances the Seller shall sell to the Purchaser as of the Closing Date, but
which shall be actually transferred from the Seller to the Purchaser and from
the Purchaser to the Trust from time to time as such Draws are made. In
consideration of the sale of Additional Balances by the Seller to the Purchaser
from time to time, the Purchaser agrees to pay the Seller on the date any such
Additional Balance is delivered the purchase price for such Additional Balance,
which shall be an amount equal to the outstanding principal balance of such
Additional Balance. The Purchaser shall fund the purchase price of any
Additional Balance in cash, to the extent then available from (a) any Principal
Collections on the Mortgage Loans used by the Trust to purchase Additional
Balances from the Purchaser pursuant to Section 2.01(c) of the Sale and
Servicing Agreement, and (b) any amounts remitted to the Seller on behalf of the
Purchaser by the Indenture Trustee from the Reserve Account pursuant to Section
2.01(d) of the Sale and Servicing Agreement. If, on any day, the purchase price
of the Additional Balance transferred by the Seller to the Purchaser exceeds the
cash amount described in the preceding sentence, then simultaneously with such
sale to the Purchaser by the Seller of the Additional Balance, the Seller shall
be deemed to have made a capital contribution to the Purchaser in the amount of
such excess.
4
(c) The Seller, at its expense, shall within 90 days following its
delivery of the Mortgage Notes and the Related Documents submit to the
appropriate recording offices Assignments of Mortgage to the Indenture Trustee
on behalf of the Trust, which may be blanket assignments if permitted by
applicable law, for the Mortgage Loans, provided, however, in lieu of recording
any such Assignments of Mortgage, the Seller, at its expense, may provide to the
Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably
acceptable to the Indenture Trustee and the Insurer, to the effect that
recordation of an Assignment of Mortgage in the state where the related
Mortgaged Property is located is not necessary to protect the interests of the
Indenture Trustee or the Class A Noteholders in the related Mortgage. In the
event that any such Assignment of Mortgage is lost or returned unrecorded
because of a defect therein, the Seller, at its own expense, shall promptly
prepare a substitute Assignment of Mortgage or cure such defect, as the case may
be, and thereafter the Seller shall be required to submit each such Assignment
of Mortgage for recording. Any failure of the Seller to comply with this Section
shall result in the obligation of the Seller to repurchase or substitute an
Eligible Substitute Mortgage Loan for the related Mortgage Loan pursuant to the
provisions of the Sale and Servicing Agreement. Notwithstanding the foregoing,
the Assignments of Mortgage shall be submitted for recordation by the Indenture
Trustee, at the expense of the Seller, upon the occurrence of a Recordation
Event pursuant to Section 2.01(l) of the Sale and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER; REMEDIES FOR BREACH
Section 3.01. Seller Representations and Warranties Relating to the
Mortgage Loans. The Seller represents and warrants to the Purchaser that with
respect to the Mortgage Loans as of the Closing Date, each of the
representations and warranties contained in Section 2.04 of the Sale and
Servicing Agreement, with the same force and effect as if fully set forth
herein, are true and correct as of the Closing Date.
With respect to the representations and warranties set forth in this
Section 3.01 that are made to the best of the Seller's knowledge or as to which
the Seller has no knowledge, if it is discovered by the Seller, the Servicer,
the Purchaser, the Insurer or a Responsible Officer of the Indenture Trustee,
pursuant to the Sale and Servicing Agreement, that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Purchaser, the Trust, the Noteholders, the Certificateholders or the Insurer in
the related Mortgage Loan, then, notwithstanding the Seller's lack of knowledge
with respect to the substance of such representation and warranty being
inaccurate at the time the representation or warranty was made, such inaccuracy
shall be deemed a breach of the applicable representation or warranty.
With respect to any breach of a representation or warranty set forth in
this Section 3.01, the Seller shall cure, repurchase or substitute the related
Mortgage Loan in accordance with the Sale and Servicing Agreement.
It is understood and agreed that the representations and warranties set
forth in this Section 3.01 shall survive delivery of the respective Mortgage
Files and the sale and assignment of the Mortgage Loans as contemplated hereby
and in the Sale and Servicing Agreement.
5
Section 3.02. Seller Representations and Warranties - General. The Seller
hereby represents and warrants to the Purchaser that as of the Closing Date or
as of such date specifically provided herein:
(i) The Seller is a duly organized and validly existing federal
savings bank, in good standing under the laws of the United States and has
the power and authority to own its assets and to transact the business in
which it is currently engaged. The Seller is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure to so qualify would have a
material adverse effect on (a) its business, properties, assets or
condition (financial or other), (b) the performance of its obligations
under this Agreement, (c) the value or marketability of the Mortgage
Loans, or (d) the ability to foreclose on the related Mortgaged
Properties;
(ii) The Seller has the power and authority to make, execute,
deliver and perform its obligations under this Agreement and to consummate
all of the transactions contemplated under this Agreement, and has taken
all necessary action to authorize the execution, delivery and performance
of this Agreement. When executed and delivered, this Agreement will
constitute its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforcement of such terms may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(iii) The Seller holds all necessary licenses, certificates and
permits from all governmental authorities necessary for conducting its
business as it is presently conducted. It is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any governmental
authority, bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except for such
consents, licenses, approvals or authorizations, or registrations or
declarations, as the case may be, as shall have been obtained or filed,
prior to the Closing Date;
(iv) The execution, delivery and performance of this Agreement by it
will not conflict with or result in a breach of, or constitute a default
under, any provision of any existing law or regulation or any order or
decree of any court applicable to the Seller or any of its properties or
any provision of its Charter or Bylaws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to, any mortgage,
indenture, contract or other agreement to which it is a party or by which
it may be bound;
(v) No certificate of an officer, statement furnished in writing or
report delivered pursuant to the terms hereof by the Seller contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report, as applicable, not
misleading;
6
(vi) The transactions contemplated by this Agreement are in the
ordinary course of the Seller's business;
(vii) The Seller is not insolvent, nor will the Seller be made
insolvent by the transfer of the Mortgage Loans, nor is the Seller aware
of any pending insolvency;
(viii) The Seller is not in violation of, and the execution and
delivery of this Agreement by it and its performance and compliance with
the terms of this Agreement will not constitute a violation with respect
to, any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction over
the Seller, which violation would materially and adversely affect the
Seller's condition (financial or otherwise) or operations or any of the
Seller's properties or materially and adversely affect the performance of
any of its duties hereunder;
(ix) There are no actions or proceedings against, or investigations
of the Seller pending or, to its knowledge, threatened, before any court,
administrative agency or other tribunal (a) that, if determined adversely,
would prohibit the Seller from entering into this Agreement or the Sale
and Servicing Agreement, (b) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or (c) that, if determined
adversely, would prohibit or materially and adversely affect the Seller's
performance of any of its respective obligations under, or the validity or
enforceability of, this Agreement or the Sale and Servicing Agreement;
(x) The Seller represents and warrants that it did not sell the
Mortgage Loans to the Purchaser under this Agreement, with any intent to
hinder, delay or defraud any of its creditors; and the Seller will not be
rendered insolvent as a result of the sale of the Mortgage Loans to the
Purchaser under this Agreement;
(xi) The Seller acquired title to the Mortgage Loans in good faith,
without notice of any adverse claim thereto;
(xii) The transfer, assignment and conveyance of the Mortgage Notes
and the Mortgages by the Seller pursuant to this Agreement are not subject
to the bulk transfer laws or any similar statutory provisions in effect in
any applicable jurisdiction;
(xiii) So long as the Notes and the Certificates remain outstanding,
this Agreement shall be treated as an official record of the Seller within
the meaning of Section 13(e) of the Federal Deposit Insurance Act (12
U.S.C. Section 1823(e));
(xiv) It is the express intent of the Seller that the conveyance of
the Mortgage Loans by the Seller to the Purchaser as contemplated by this
Agreement be, and be treated for all purposes as, a sale by the Seller to
the Purchaser of the Mortgage Loans. However, in the event that,
notwithstanding the intent of the Seller, the Mortgage Loans or any part
thereof are held to be property of the Seller, then this Agreement creates
a valid and continuing security interest in the Mortgage Loans in favor of
the Purchaser (or its designee), which security interest is prior to all
other liens, and is enforceable as such against creditors of and
purchasers from the Purchaser;
7
(xv) The Seller has caused or will have caused, within ten days of
the Closing Date, the filing of all appropriate financing statements in
the proper filing office in the appropriate jurisdictions under applicable
law in order to perfect the security interest in the related Mortgage
Loans granted to the Purchaser hereunder;
(xvi) All financing statements filed or to be filed against the
Seller in favor of the Purchaser in connection herewith describing the
Mortgage Loans contain a statement to the following effect: "A purchase of
or security interest in any collateral described in this financing
statement will violate the rights of the Indenture Trustee;"
(xvii) The Seller has taken all steps necessary to perfect its
security interest against the Mortgagors in the Mortgaged Properties
securing the related Mortgage Loans; and
(xviii) The Seller has in its possession all original copies of
documents that constitute the Mortgage Notes. Such Mortgage Notes do not
have any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Purchaser
pursuant to this Agreement and subsequently to the Indenture Trustee
pursuant to the Sale and Servicing Agreement.
ARTICLE IV
SELLER'S COVENANTS
Section 4.01. Covenants of the Seller. The Seller hereby covenants that
except for the transfer hereunder, the Seller will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Mortgage Loan, or any interest therein; the Seller will notify
the Purchaser, the Insurer and the Indenture Trustee of the existence of any
Lien on any Mortgage Loan immediately upon discovery thereof; and the Seller
will defend the right, title and interest of the Trust and the Indenture Trustee
in, to and under the Mortgage Loans, against all claims of third parties
claiming through or under the Seller; provided, however, that nothing in this
Section 4.01 shall prevent or be deemed to prohibit the Seller from suffering to
exist upon any of the Mortgage Loans any Liens for municipal or other local
taxes or other governmental charges if such taxes or governmental charges shall
not at the time be due and payable or if the Seller shall currently be
contesting the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect thereto.
ARTICLE V
TERMINATION
Section 5.01. Termination. The respective obligations and responsibilities
of the Seller and the Purchaser created hereby shall terminate upon the
termination of the Sale and Servicing Agreement pursuant to Article VIII
thereof.
8
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment. This Agreement may be amended from time to time
by the Seller and the Purchaser, with the consent of the Insurer (so long as the
Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing
to the Insurer and no Insurer Default has occurred and is continuing) (which
consent shall not be unreasonably withheld), by written agreement signed by the
Seller and the Purchaser, with the consent of the Insurer (which consent shall
not be unreasonably withheld).
Section 6.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAW, OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
Section 6.03. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by overnight mail, certified mail or registered mail,
postage prepaid, addressed as follows:
(a) if to the Seller:
IndyMac Bank, F.S.B.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing - Transaction Management
or such other address as may hereafter be furnished to the Purchaser in writing
by the Seller;
(b) if to the Purchaser:
IndyMac MBS, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Secondary Marketing - Transaction Management
or such other address as may hereafter be furnished to the Seller in writing by
the Purchaser; and
(c) if to the Insurer: at the address designated in the Insurance and
Indemnity Agreement.
Section 6.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, 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
9
way affect the validity or enforceability of the other covenants, agreements,
provisions or terms of this Agreement.
Section 6.05. Counterparts. This Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original and such
counterparts, together, shall constitute one and the same agreement.
Section 6.06. Further Agreements. The Purchaser and the Seller each agree
to execute and deliver to the other such additional documents, instruments or
agreements as may be necessary or reasonable and appropriate to effectuate the
purposes of this Agreement or in connection with the issuance of any
Certificates or Notes secured by the Mortgage Loans.
Section 6.07. Intention of the Parties. It is the intention of the parties
that the Purchaser is purchasing, and the Seller is selling, the Mortgage Loans
rather than pledging the Mortgage Loans to secure a loan by the Purchaser to the
Seller. It is further the intention of the parties that the conveyance set forth
in Section 2.01 is a true sale and/or true contribution by the Seller to the
Purchaser that is absolute and irrevocable and that provides the Purchaser with
the full benefits of ownership of the Mortgage Loans. Accordingly, the parties
hereto each intend to treat the transaction for accounting purposes as a sale by
the Seller, and a purchase by the Purchaser, of the Mortgage Loans. The
Purchaser, or its designees, will have the right to review the Mortgage Loans
and the related Mortgage Files to determine the characteristics of the Mortgage
Loans which will affect the Federal income tax consequences of owning the
Mortgage Loans and the Seller will cooperate with all reasonable requests made
by the Purchaser in the course of such review. The Insurer shall be an intended
third party beneficiary hereunder.
Section 6.08. Successors and Assigns: Assignment of Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser, the Insurer and the Indenture Trustee. The Indenture
Trustee shall be an express third-party beneficiary to Section 2.04. The
obligations of the Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Purchaser and the Insurer, which
consent shall be at the Purchaser's and the Insurer's reasonable discretion,
except that the Purchaser acknowledges and agrees that the Seller may with the
consent of the Insurer assign its obligations hereunder to any Person into which
the Seller is merged or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party or any Person succeeding to the
business of the Seller. The parties hereto acknowledge that the Purchaser is
acquiring the Mortgage Loans for the purpose of contributing them to a trust
that will issue a series of notes and certificates representing interests in
such Mortgage Loans. As an inducement to the Purchaser to purchase the Mortgage
Loans, the Seller acknowledges and consents to the assignment by the Purchaser
to the Indenture Trustee of all of the Purchaser's rights against the Seller
pursuant to this Agreement insofar as such rights relate to Mortgage Loans
transferred to such Indenture Trustee and to the enforcement or exercise of any
right or remedy against the Seller pursuant to this Agreement by the Indenture
Trustee under the Sale and Servicing Agreement. Such enforcement of a right or
remedy by the Indenture Trustee shall have the same force and effect as if the
right or remedy had been enforced or exercised by the Purchaser directly.
10
Section 6.09. Survival. The representations and warranties set forth in
Sections 3.01 and 3.02 hereof shall survive the purchase of the Mortgage Loans
hereunder.
11
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed to this Mortgage Loan Purchase Agreement by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.,
as Purchaser
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.,
as Seller
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series 2006-H3
Mortgage Loan Purchase Agreement
between IndyMac Bank and IndyMac MBS
S-1
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 29th day of September, 2006, before me, a Notary Public in and for
said State, personally appeared Xxxx Xxxxxxxx, known to me to be a Vice
President of IndyMac MBS, Inc., the corporation that executed the within
instrument, and also known to me to be the person who executed such instrument
on behalf of such corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxxxx
---------------------------------------
Notary Public
IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series 2006-H3
Mortgage Loan Purchase Agreement
between IndyMac Bank and IndyMac MBS
N-1
STATE OF CALIFORNIA )
) ss.:
COUNTY OF LOS ANGELES )
On the 29th day of September, 2006, before me, a Notary Public in and for
said State, personally appeared Xxxx Xxxxxxxx, known to me to be a Vice
President of IndyMac Bank, F.S.B., the federal savings bank that executed the
within instrument, and also known to me to be the person who executed such
instrument on behalf of such federal savings bank, and acknowledged to me that
such federal savings bank executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxxxx
---------------------------------------
Notary Public
IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series 2006-H3
Mortgage Loan Purchase Agreement
between IndyMac Bank and IndyMac MBS
N-2
SCHEDULE I
MORTGAGE LOAN SCHEDULE
[ON FILE WITH INDENTURE TRUSTEE]
I-1
