IndyMac ABS, Inc. Depositor IndyMac Bank, F.S.B. Seller and Servicer Deutsche Bank National Trust Company Trustee and Supplemental Interest Trust Trustee Pooling and Servicing Agreement Dated as of February 1, 2007 Home Equity Mortgage Loan...
IndyMac
ABS, Inc.
Depositor
IndyMac
Bank, F.S.B.
Seller
and Servicer
Deutsche
Bank National Trust Company
Trustee
and Supplemental Interest Trust Trustee
____________________________________
Dated
as
of February 1, 2007
_____________________________________
Home
Equity Mortgage Loan Asset-Backed Trust
Series
INDS 2007-1
Home
Equity Mortgage Loan Asset-Backed Certificates
Series
INDS 2007-1
ARTICLE
I
DEFINITIONS
|
|
Section
1.01
|
Definitions.
|
Section
1.02
|
Rules
of Construction.
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES
|
|
Section
2.01
|
Conveyance
of Mortgage Loans.
|
Section
2.02
|
Acceptance
by the Trustee of the Mortgage Loans.
|
Section
2.03
|
Representations,
Warranties, and Covenants of the Seller and the
Servicer.
|
Section
2.04
|
Representations
and Warranties of the Depositor as to the Mortgage
Loans.
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
Section
2.06
|
Execution
and Delivery of Certificates.
|
Section
2.07
|
[Reserved].
|
Section
2.08
|
REMIC
Matters.
|
Section
2.09
|
Covenants
of the Servicer.
|
Section
2.10
|
Purposes
and Powers of the Trust
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF
MORTGAGE LOANS
|
|
Section
3.01
|
Servicer
to Service Mortgage Loans.
|
Section
3.02
|
[Reserved].
|
Section
3.03
|
[Reserved].
|
Section
3.04
|
The
Pool Policy.
|
Section
3.05
|
Trustee
to Act as Servicer.
|
Section
3.06
|
Collection
of Mortgage Loan Payments; Certificate Account; Distribution Account;
Excess Reserve Fund Account.
|
Section
3.07
|
Collection
of Taxes, Assessments, and Similar Items Escrow
Accounts.
|
Section
3.08
|
Access
to Certain Documentation and Information Regarding the Mortgage
Loans.
|
Section
3.09
|
Permitted
Withdrawals from the Certificate Account, the Distribution Account
and the
Excess Reserve Fund Account.
|
Section
3.10
|
Maintenance
of Hazard Insurance; Maintenance of Primary Insurance
Policies.
|
Section
3.11
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
Section
3.12
|
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
Section
3.13
|
Trustee
to Cooperate; Release of Mortgage Files.
|
Section
3.14
|
Documents,
Records, and Funds in Possession of the Servicer to be Held for
the
Trustee.
|
Section
3.15
|
Servicing
Compensation.
|
Section
3.16
|
Access
to Certain Documentation.
|
Section
3.17
|
Annual
Statement as to Compliance.
|
Section
3.18
|
Assessments
of Compliance and Attestation Reports.
|
Section
3.19
|
Errors
and Omissions Insurance; Fidelity Bonds.
|
Section
3.20
|
[Reserved].
|
Section
3.21
|
Prepayment
Charges.
|
Section
3.22
|
[Reserved].
|
Section
3.23
|
[Reserved]
|
Section
3.24
|
Commission
Reporting
|
ARTICLE
IV
DISTRIBUTIONS
AND ADVANCES BY THE SERVICER
|
|
Section
4.01
|
Advances.
|
Section
4.02
|
Priorities
of Distribution.
|
Section
4.03
|
Monthly
Statements to Certificateholders.
|
Section
4.04
|
Allocation
of Interest Shortfalls.
|
Section
4.05
|
Supplemental
Interest Trust.
|
Section
4.06
|
Tax
Treatment of Net Swap Payments and Swap Termination
Payments.
|
Section
4.07
|
The
Policy.
|
Section
4.08
|
Certain
Matters Relating to the Determination of LIBOR.
|
Section
4.09
|
Distributions
and Allocation of Realized Losses to the REMIC I Regular
Interests.
|
Section
4.10
|
The
Pool Policy Reserve Account.
|
Section
4.11
|
Supplemental
Interest Trust Credit Support Collateral Account.
|
ARTICLE
V
THE
CERTIFICATES
|
|
Section
5.01
|
The
Certificates.
|
Section
5.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
Section
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
Section
5.04
|
Persons
Deemed Owners.
|
Section
5.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
Section
5.06
|
Maintenance
of Office or Agency.
|
ARTICLE
VI
THE
DEPOSITOR AND THE SERVICER
|
|
Section
6.01
|
Respective
Liabilities of the Depositor and the Servicer.
|
Section
6.02
|
Merger
or Consolidation of the Depositor or the Servicer.
|
Section
6.03
|
Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others.
|
Section
6.04
|
Limitation
on Resignation of the Servicer.
|
Section
6.05
|
Inspection.
|
ARTICLE
VII
DEFAULT
|
|
Section
7.01
|
Events
of Default.
|
Section
7.02
|
Trustee
to Act; Appointment of Successor.
|
Section
7.03
|
Notification
to Certificateholders.
|
ARTICLE
VIII
CONCERNING
THE TRUSTEE
|
|
Section
8.01
|
Duties
of the Trustee.
|
Section
8.02
|
Certain
Matters Affecting the Trustee.
|
Section
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
Section
8.04
|
Trustee
May Own Certificates.
|
Section
8.05
|
Trustee’s
Fees and Expenses.
|
Section
8.06
|
Eligibility
Requirements for the Trustee.
|
Section
8.07
|
Resignation
and Removal of the Trustee.
|
Section
8.08
|
Successor
Trustee.
|
Section
8.09
|
Merger
or Consolidation of the Trustee.
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
Section
8.11
|
Tax
Matters.
|
Section
8.12
|
Access
to Records of Trustee.
|
Section
8.13
|
Suits
for Enforcement.
|
ARTICLE
IX
TERMINATION
|
|
Section
9.01
|
Termination
upon Liquidation or Purchase of the Mortgage Loans.
|
Section
9.02
|
Final
Distribution on the Certificates.
|
Section
9.03
|
Additional
Termination Requirements.
|
Section
9.04
|
Termination
of the Supplemental Interest Trust.
|
ARTICLE
X
MISCELLANEOUS
PROVISIONS
|
|
Section
10.01
|
Amendment.
|
Section
10.02
|
Recordation
of Agreement; Counterparts.
|
Section
10.03
|
Governing
Law.
|
Section
10.04
|
Intention
of Parties.
|
Section
10.05
|
Notices.
|
Section
10.06
|
Severability
of Provisions.
|
Section
10.07
|
Assignment.
|
Section
10.08
|
Limitation
on Rights of Certificateholders.
|
Section
10.09
|
Inspection
and Audit Rights.
|
Section
10.10
|
Certificates
Nonassessable and Fully Paid.
|
Section
10.11
|
Official
Record.
|
Section
10.12
|
Protection
of Assets.
|
Section
10.13
|
Qualifying
Special Purpose Entity.
|
Section
10.14
|
Rights
of the Certificate Insurer.
|
Section
10.15
|
Rights
and Duties of the Swap Provider.
|
Section
10.16
|
Rights
and Duties of the Pool
Insurer.
|
SCHEDULES
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
Schedule
II:
|
Representations
and Warranties of the Seller/Servicer as of the Closing
Date
|
Schedule
III:
|
Representations
and Warranties as to the Mortgage Loans as of the Closing Date
or Cut-off
Date, as applicable
|
EXHIBITS
|
|
Exhibit
A:
|
Form
of Class A Certificate
|
Exhibit
B:
|
Form
of Class A-IO Certificate
|
Exhibit
C:
|
Form
of Class P Certificate
|
Exhibit
D:
|
Form
of Residual Certificate
|
Exhibit
E:
|
Form
of Class C Certificate
|
Exhibit
F:
|
Form
of Reverse of Certificates
|
Exhibit
G-1:
|
Form
of Initial Certification of Trustee
|
Exhibit
G-2:
|
Form
of Delayed Delivery Certification
|
Exhibit
H:
|
Form
of Final Certification of Trustee
|
Exhibit
I:
|
Form
of Transfer Affidavit
|
Exhibit
J:
|
Form
of Transferor Certificate
|
Exhibit
K:
|
[Reserved]
|
Exhibit
L:
|
Form
of Rule 144A Letter
|
Exhibit
M:
|
Form
of Request for Release (for Trustee)
|
Exhibit
N:
|
Form
of Request for Release (Mortgage Loan Paid in Full, Repurchased,
and
Released)
|
Exhibit
O-1:
|
Form
of Certification to be Provided by the Depositor with Form
10-K
|
Exhibit
O-2:
|
Trustee’s
Officer’s Certificate
|
Exhibit
P:
|
[Reserved]
|
Exhibit
Q:
|
Form
of Interest Rate Swap Agreement
|
Exhibit
R:
|
Servicing
Criteria to be addressed in Assessment of Compliance
|
Exhibit
S:
|
Reporting
Responsibility
|
Exhibit
T:
|
Copy
of Certificate Guaranty Insurance Policy with respect to the Class
A
Certificates
|
This
Pooling and Servicing Agreement,
dated
as of February 1, 2007, among IndyMac ABS, 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”).
Witnesseth
That
In
consideration of the mutual agreements herein contained, the parties agree
as
follows:
Preliminary
Statement
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”),
to be
issued hereunder in multiple classes, which in the aggregate will evidence
the
entire beneficial ownership interest in each REMIC (as defined herein) created
hereunder. The Trust Fund will consist of a segregated pool of assets consisting
of the Mortgage Loans and certain other related assets subject to this
Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the Mortgage Loans and certain other related assets (other than the
Supplemental Interest Trust, the Excess Reserve Fund Account, the Interest
Rate
Swap Agreement and the Pool Policy Reserve Account) subject to this Agreement
as
a REMIC for federal income tax purposes, and such pool of assets will be
designated as REMIC I. The Class R-I Interest will evidence the sole class
of
residual interests in REMIC I for purposes of the REMIC Provisions. The
following table irrevocably sets forth the designation, the REMIC I Remittance
Rate, the initial Uncertificated Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the latest possible maturity
date for each of the REMIC I Regular Interests (as defined herein). None of
the
REMIC I Regular Interests will be certificated.
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
|||||
I
|
Variable(2)
|
$
0.00
|
March
25, 2037
|
|||||
I-1-A
|
Variable(2)
|
$
1,702,000.00
|
March
25, 2037
|
|||||
I-1-B
|
Variable(2)
|
$
1,702,000.00
|
March
25, 2037
|
|||||
I-2-A
|
Variable(2)
|
$
2,106,000.00
|
March
25, 2037
|
|||||
I-2-B
|
Variable(2)
|
$
2,106,000.00
|
March
25, 2037
|
|||||
I-3-A
|
Variable(2)
|
$
2,517,500.00
|
March
25, 2037
|
|||||
I-3-B
|
Variable(2)
|
$
2,517,500.00
|
March
25, 2037
|
|||||
I-4-A
|
Variable(2)
|
$
2,923,500.00
|
March
25, 2037
|
|||||
I-4-B
|
Variable(2)
|
$
2,923,500.00
|
March
25, 2037
|
|||||
I-5-A
|
Variable(2)
|
$
3,324,500.00
|
March
25, 2037
|
|||||
I-5-B
|
Variable(2)
|
$
3,324,500.00
|
March
25, 2037
|
|||||
I-6-A
|
Variable(2)
|
$
3,715,500.00
|
March
25, 2037
|
|||||
I-6-B
|
Variable(2)
|
$
3,715,500.00
|
March
25, 2037
|
|||||
I-7-A
|
Variable(2)
|
$
4,059,500.00
|
March
25, 2037
|
|||||
I-7-B
|
Variable(2)
|
$
4,059,500.00
|
March
25, 2037
|
|||||
I-8-A
|
Variable(2)
|
$
4,421,500.00
|
March
25, 2037
|
|||||
I-8-B
|
Variable(2)
|
$
4,421,500.00
|
March
25, 2037
|
|||||
I-9-A
|
Variable(2)
|
$
4,764,000.00
|
March
25, 2037
|
|||||
I-9-B
|
Variable(2)
|
$
4,764,000.00
|
March
25, 2037
|
|||||
I-10-A
|
Variable(2)
|
$
5,081,000.00
|
March
25, 2037
|
|||||
I-10-B
|
Variable(2)
|
$
5,081,000.00
|
March
25, 2037
|
|||||
I-11-A
|
Variable(2)
|
$
4,948,000.00
|
March
25, 2037
|
|||||
I-11-B
|
Variable(2)
|
$
4,948,000.00
|
March
25, 2037
|
|||||
I-12-A
|
Variable(2)
|
$
6,072,500.00
|
March
25, 2037
|
|||||
I-12-B
|
Variable(2)
|
$
6,072,500.00
|
March
25, 2037
|
|||||
I-13-A
|
Variable(2)
|
$
4,631,000.00
|
March
25, 2037
|
|||||
I-13-B
|
Variable(2)
|
$
4,631,000.00
|
March
25, 2037
|
|||||
I-14-A
|
Variable(2)
|
$
4,506,000.00
|
March
25, 2037
|
|||||
I-14-B
|
Variable(2)
|
$
4,506,000.00
|
March
25, 2037
|
|||||
I-15-A
|
Variable(2)
|
$
4,383,500.00
|
March
25, 2037
|
|||||
I-15-B
|
Variable(2)
|
$
4,383,500.00
|
March
25, 2037
|
|||||
I-16-A
|
Variable(2)
|
$
4,265,500.00
|
March
25, 2037
|
|||||
I-16-B
|
Variable(2)
|
$
4,265,500.00
|
March
25, 2037
|
|||||
I-17-A
|
Variable(2)
|
$
4,150,000.00
|
March
25, 2037
|
|||||
I-17-B
|
Variable(2)
|
$
4,150,000.00
|
March
25, 2037
|
|||||
I-18-A
|
Variable(2)
|
$
5,847,000.00
|
March
25, 2037
|
|||||
I-18-B
|
Variable(2)
|
$
5,847,000.00
|
March
25, 2037
|
|||||
I-19-A
|
Variable(2)
|
$
3,820,500.00
|
March
25, 2037
|
|||||
I-19-B
|
Variable(2)
|
$
3,820,500.00
|
March
25, 2037
|
|||||
I-20-A
|
Variable(2)
|
$
3,717,500.00
|
March
25, 2037
|
|||||
I-20-B
|
Variable(2)
|
$
3,717,500.00
|
March
25, 2037
|
|||||
I-21-A
|
Variable(2)
|
$
3,617,000.00
|
March
25, 2037
|
|||||
I-21-B
|
Variable(2)
|
$
3,617,000.00
|
March
25, 2037
|
|||||
I-22-A
|
Variable(2)
|
$
3,520,000.00
|
March
25, 2037
|
|||||
I-22-B
|
Variable(2)
|
$
3,520,000.00
|
March
25, 2037
|
|||||
I-23-A
|
Variable(2)
|
$
3,425,000.00
|
March
25, 2037
|
|||||
I-23-B
|
Variable(2)
|
$
3,425,000.00
|
March
25, 2037
|
|||||
I-24-A
|
Variable(2)
|
$
5,300,500.00
|
March
25, 2037
|
|||||
I-24-B
|
Variable(2)
|
$
5,300,500.00
|
March
25, 2037
|
|||||
I-25-A
|
Variable(2)
|
$
3,158,000.00
|
March
25, 2037
|
|||||
I-25-B
|
Variable(2)
|
$
3,158,000.00
|
March
25, 2037
|
|||||
I-26-A
|
Variable(2)
|
$
3,073,000.00
|
March
25, 2037
|
|||||
I-26-B
|
Variable(2)
|
$
3,073,000.00
|
March
25, 2037
|
|||||
I-27-A
|
Variable(2)
|
$
2,990,000.00
|
March
25, 2037
|
|||||
I-27-B
|
Variable(2)
|
$
2,990,000.00
|
March
25, 2037
|
|||||
I-28-A
|
Variable(2)
|
$
2,910,500.00
|
March
25, 2037
|
|||||
I-28-B
|
Variable(2)
|
$
2,910,500.00
|
March
25, 2037
|
|||||
I-29-A
|
Variable(2)
|
$
2,833,000.00
|
March
25, 2037
|
|||||
I-29-B
|
Variable(2)
|
$
2,833,000.00
|
March
25, 2037
|
|||||
I-30-A
|
Variable(2)
|
$
6,850,000.00
|
March
25, 2037
|
|||||
I-30-B
|
Variable(2)
|
$
6,850,000.00
|
March
25, 2037
|
|||||
I-31-A
|
Variable(2)
|
$
2,598,500.00
|
March
25, 2037
|
|||||
I-31-B
|
Variable(2)
|
$
2,598,500.00
|
March
25, 2037
|
|||||
I-32-A
|
Variable(2)
|
$
2,530,000.00
|
March
25, 2037
|
|||||
I-32-B
|
Variable(2)
|
$
2,530,000.00
|
March
25, 2037
|
|||||
I-33-A
|
Variable(2)
|
$
2,462,000.00
|
March
25, 2037
|
|||||
I-33-B
|
Variable(2)
|
$
2,462,000.00
|
March
25, 2037
|
|||||
I-34-A
|
Variable(2)
|
$
2,396,500.00
|
March
25, 2037
|
|||||
I-34-B
|
Variable(2)
|
$
2,396,500.00
|
March
25, 2037
|
|||||
I-35-A
|
Variable(2)
|
$
2,332,500.00
|
March
25, 2037
|
|||||
I-35-B
|
Variable(2)
|
$
2,332,500.00
|
March
25, 2037
|
|||||
I-36-A
|
Variable(2)
|
$
5,497,500.00
|
March
25, 2037
|
|||||
I-36-B
|
Variable(2)
|
$
5,497,500.00
|
March
25, 2037
|
|||||
I-37-A
|
Variable(2)
|
$
2,130,500.00
|
March
25, 2037
|
|||||
I-37-B
|
Variable(2)
|
$
2,130,500.00
|
March
25, 2037
|
|||||
I-38-A
|
Variable(2)
|
$
2,073,000.00
|
March
25, 2037
|
|||||
I-38-B
|
Variable(2)
|
$
2,073,000.00
|
March
25, 2037
|
|||||
I-39-A
|
Variable(2)
|
$
2,019,000.00
|
March
25, 2037
|
|||||
I-39-B
|
Variable(2)
|
$
2,019,000.00
|
March
25, 2037
|
|||||
I-40-A
|
Variable(2)
|
$
1,965,000.00
|
March
25, 2037
|
|||||
I-40-B
|
Variable(2)
|
$
1,965,000.00
|
March
25, 2037
|
|||||
I-41-A
|
Variable(2)
|
$
1,913,000.00
|
March
25, 2037
|
|||||
I-41-B
|
Variable(2)
|
$
1,913,000.00
|
March
25, 2037
|
|||||
I-42-A
|
Variable(2)
|
$
5,010,000.00
|
March
25, 2037
|
|||||
I-42-B
|
Variable(2)
|
$
5,010,000.00
|
March
25, 2037
|
|||||
I-43-A
|
Variable(2)
|
$
1,737,500.00
|
March
25, 2037
|
|||||
I-43-B
|
Variable(2)
|
$
1,737,500.00
|
March
25, 2037
|
|||||
I-44-A
|
Variable(2)
|
$
1,691,500.00
|
March
25, 2037
|
|||||
I-44-B
|
Variable(2)
|
$
1,691,500.00
|
March
25, 2037
|
|||||
I-45-A
|
Variable(2)
|
$
1,646,500.00
|
March
25, 2037
|
|||||
I-45-B
|
Variable(2)
|
$
1,646,500.00
|
March
25, 2037
|
|||||
I-46-A
|
Variable(2)
|
$
1,603,000.00
|
March
25, 2037
|
|||||
I-46-B
|
Variable(2)
|
$
1,603,000.00
|
March
25, 2037
|
|||||
I-47-A
|
Variable(2)
|
$
1,561,000.00
|
March
25, 2037
|
|||||
I-47-B
|
Variable(2)
|
$
1,561,000.00
|
March
25, 2037
|
|||||
I-48-A
|
Variable(2)
|
$
4,511,000.00
|
March
25, 2037
|
|||||
I-48-B
|
Variable(2)
|
$
4,511,000.00
|
March
25, 2037
|
|||||
I-49-A
|
Variable(2)
|
$
1,404,000.00
|
March
25, 2037
|
|||||
I-49-B
|
Variable(2)
|
$
1,404,000.00
|
March
25, 2037
|
|||||
I-50-A
|
Variable(2)
|
$
1,366,500.00
|
March
25, 2037
|
|||||
I-50-B
|
Variable(2)
|
$
1,366,500.00
|
March
25, 2037
|
|||||
I-51-A
|
Variable(2)
|
$
1,331,500.00
|
March
25, 2037
|
|||||
I-51-B
|
Variable(2)
|
$
1,331,500.00
|
March
25, 2037
|
|||||
I-52-A
|
Variable(2)
|
$
1,296,500.00
|
March
25, 2037
|
|||||
I-52-B
|
Variable(2)
|
$
1,296,500.00
|
March
25, 2037
|
|||||
I-53-A
|
Variable(2)
|
$
1,262,500.00
|
March
25, 2037
|
|||||
I-53-B
|
Variable(2)
|
$
1,262,500.00
|
March
25, 2037
|
|||||
I-54-A
|
Variable(2)
|
$
4,063,000.00
|
March
25, 2037
|
|||||
I-54-B
|
Variable(2)
|
$
4,063,000.00
|
March
25, 2037
|
|||||
I-55-A
|
Variable(2)
|
$
1,131,500.00
|
March
25, 2037
|
|||||
I-55-B
|
Variable(2)
|
$
1,131,500.00
|
March
25, 2037
|
|||||
I-56-A
|
Variable(2)
|
$
1,102,500.00
|
March
25, 2037
|
|||||
I-56-B
|
Variable(2)
|
$
1,102,500.00
|
March
25, 2037
|
|||||
I-57-A
|
Variable(2)
|
$
1,074,000.00
|
March
25, 2037
|
|||||
I-57-B
|
Variable(2)
|
$
1,074,000.00
|
March
25, 2037
|
|||||
I-58-A
|
Variable(2)
|
$
1,046,000.00
|
March
25, 2037
|
|||||
I-58-B
|
Variable(2)
|
$
1,046,000.00
|
March
25, 2037
|
|||||
I-59-A
|
Variable(2)
|
$
1,018,500.00
|
March
25, 2037
|
|||||
I-59-B
|
Variable(2)
|
$
1,018,500.00
|
March
25, 2037
|
|||||
I-60-A
|
Variable(2)
|
$
3,826,000.00
|
March
25, 2037
|
|||||
I-60-B
|
Variable(2)
|
$
3,826,000.00
|
March
25, 2037
|
|||||
I-61-A
|
Variable(2)
|
$
918,000.00
|
March
25, 2037
|
|||||
I-61-B
|
Variable(2)
|
$
918,000.00
|
March
25, 2037
|
|||||
I-62-A
|
Variable(2)
|
$
893,500.00
|
March
25, 2037
|
|||||
I-62-B
|
Variable(2)
|
$
893,500.00
|
March
25, 2037
|
|||||
I-63-A
|
Variable(2)
|
$
871,500.00
|
March
25, 2037
|
|||||
I-63-B
|
Variable(2)
|
$
871,500.00
|
March
25, 2037
|
|||||
I-64-A
|
Variable(2)
|
$
848,500.00
|
March
25, 2037
|
|||||
I-64-B
|
Variable(2)
|
$
848,500.00
|
March
25, 2037
|
|||||
I-65-A
|
Variable(2)
|
$
826,500.00
|
March
25, 2037
|
|||||
I-65-B
|
Variable(2)
|
$
826,500.00
|
March
25, 2037
|
|||||
I-66-A
|
Variable(2)
|
$
3,245,000.00
|
March
25, 2037
|
|||||
I-66-B
|
Variable(2)
|
$
3,245,000.00
|
March
25, 2037
|
|||||
I-67-A
|
Variable(2)
|
$
738,000.00
|
March
25, 2037
|
|||||
I-67-B
|
Variable(2)
|
$
738,000.00
|
March
25, 2037
|
|||||
I-68-A
|
Variable(2)
|
$
719,500.00
|
March
25, 2037
|
|||||
I-68-B
|
Variable(2)
|
$
719,500.00
|
March
25, 2037
|
|||||
I-69-A
|
Variable(2)
|
$
700,500.00
|
March
25, 2037
|
|||||
I-69-B
|
Variable(2)
|
$
700,500.00
|
March
25, 2037
|
|||||
I-70-A
|
Variable(2)
|
$
683,000.00
|
March
25, 2037
|
|||||
I-70-B
|
Variable(2)
|
$
683,000.00
|
March
25, 2037
|
|||||
I-71-A
|
Variable(2)
|
$
665,500.00
|
March
25, 2037
|
|||||
I-71-B
|
Variable(2)
|
$
665,500.00
|
March
25, 2037
|
|||||
I-72-A
|
Variable(2)
|
$
2,458,500.00
|
March
25, 2037
|
|||||
I-72-B
|
Variable(2)
|
$
2,458,500.00
|
March
25, 2037
|
|||||
I-73-A
|
Variable(2)
|
$
595,500.00
|
March
25, 2037
|
|||||
I-73-B
|
Variable(2)
|
$
595,500.00
|
March
25, 2037
|
|||||
I-74-A
|
Variable(2)
|
$
580,500.00
|
March
25, 2037
|
|||||
I-74-B
|
Variable(2)
|
$
580,500.00
|
March
25, 2037
|
|||||
I-75-A
|
Variable(2)
|
$
566,000.00
|
March
25, 2037
|
|||||
I-75-B
|
Variable(2)
|
$
566,000.00
|
March
25, 2037
|
|||||
I-76-A
|
Variable(2)
|
$
552,000.00
|
March
25, 2037
|
|||||
I-76-B
|
Variable(2)
|
$
552,000.00
|
March
25, 2037
|
|||||
I-77-A
|
Variable(2)
|
$
537,000.00
|
March
25, 2037
|
|||||
I-77-B
|
Variable(2)
|
$
537,000.00
|
March
25, 2037
|
|||||
I-78-A
|
Variable(2)
|
$
2,257,000.00
|
March
25, 2037
|
|||||
I-78-B
|
Variable(2)
|
$
2,257,000.00
|
March
25, 2037
|
|||||
I-79-A
|
Variable(2)
|
$
510,500.00
|
March
25, 2037
|
|||||
I-79-B
|
Variable(2)
|
$
510,500.00
|
March
25, 2037
|
|||||
I-80-A
|
Variable(2)
|
$
498,000.00
|
March
25, 2037
|
|||||
I-80-B
|
Variable(2)
|
$
498,000.00
|
March
25, 2037
|
|||||
I-81-A
|
Variable(2)
|
$
484,500.00
|
March
25, 2037
|
|||||
I-81-B
|
Variable(2)
|
$
484,500.00
|
March
25, 2037
|
|||||
I-82-A
|
Variable(2)
|
$
473,500.00
|
March
25, 2037
|
|||||
I-82-B
|
Variable(2)
|
$
473,500.00
|
March
25, 2037
|
|||||
I-83-A
|
Variable(2)
|
$
461,000.00
|
March
25, 2037
|
|||||
I-83-B
|
Variable(2)
|
$
461,000.00
|
March
25, 2037
|
|||||
I-84-A
|
Variable(2)
|
$
19,682,500.00
|
March
25, 2037
|
|||||
I-84-B
|
Variable(2)
|
$
19,682,500.00
|
March
25, 2037
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations.
(2) Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
REMIC
II
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the REMIC I Regular Interests as a REMIC for federal income tax purposes,
and
such pool of assets will be designated as REMIC II. The Class R-II Interest
will
evidence the sole class of residual interests in REMIC II for purposes of the
REMIC Provisions. The following table irrevocably sets forth the designation,
the REMIC II Remittance Rate, the initial Uncertificated Balance and, for
purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii), the
latest possible maturity date for each of the REMIC II Regular Interests (as
defined herein). None of the REMIC II Regular Interests will be
certificated.
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
LTI-AIO
|
Variable(2)
|
(3)
|
Xxxxx
00, 0000
|
XXX-X
|
Variable(2)
|
$
404,999,588.88
|
Xxxxx
00, 0000
|
XXX-X
|
Variable(2)
|
$ 100.00
|
Xxxxx
00, 0000
|
XXX-XX
|
Variable(2)
|
(3)
|
March
25, 2037
|
_______________
(1) For
purposes of Treasury Regulation Section 1.860G-1(a)(4)(iii).
(2) Calculated
in accordance with the definition of REMIC II Remittance Rate
herein.
(3) REMIC
II
Regular Interest LTI-AIO and REMIC II Regular Interest LTI-IO will not have
an
Uncertificated Balance, but will accrue interest on its Uncertificated Notional
Amount, as defined herein.
REMIC
III
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the REMIC II Regular Interests as a REMIC for federal income tax purposes,
and such pool of assets will be designated as REMIC III. The Class R-III
Interest will evidence the sole class of residual interests in REMIC III for
purposes of the REMIC Provisions. The following table irrevocably sets forth
the
designation, the REMIC III Remittance Rate, the initial Uncertificated Balance
and, for purposes of satisfying Treasury Regulation Section 1.860G-1(a)(4)(iii),
the latest possible maturity date for each of the REMIC III Regular Interests
(as defined herein). None of the REMIC III Regular Interests will be
certificated.
Designation
|
REMIC
III
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
XXXX-XXX
|
Xxxxxxxx(0)
|
(0)
|
Xxxxx
00, 0000
|
XXXX-XX
|
Variable(2)
|
$
440,999,695.10
|
Xxxxx
00, 0000
|
XXXX-X
|
Variable(2)
|
$
4,500,000.00
|
March
25, 2037
|
LTII-ZZ
|
Variable(2)
|
$
4,499,993.78
|
Xxxxx
00, 0000
|
XXXX-X
|
Variable(2)
|
$
100.00
|
March
25, 2037
|
LTII-IO
|
Variable(2)
|
(3)
|
March
25, 2037
|
_______________
(1) For
purposes of Treasury Regulation Section 1.860G-1(a)(4)(iii).
(2) Calculated
in accordance with the definition of REMIC III Remittance Rate
herein.
(3) REMIC
III
Regular Interest LTII-AIO and REMIC III Regular Interest LTII-IO will not have
an Uncertificated Balance, but will accrue interest on its Uncertificated
Notional Amount, as defined herein.
REMIC
IV
As
provided herein, the Trustee will elect to treat the pool of assets consisting
of the REMIC III Regular Interests as a REMIC for federal income tax purposes,
and such pool of assets will be designated as REMIC IV. The Class R-IV Interest
will evidence the sole class of residual interests in REMIC IV for purposes
of
the REMIC Provisions. The following table irrevocably sets forth the
designation, the Pass-Through Rate, the initial aggregate Class Certificate
Balance and, for purposes of satisfying Treasury Regulation Section
1.860G-1(a)(4)(iii), the latest possible maturity date for the indicated Classes
of Certificates. The Class IO Interest shall represent uncertificated regular
interests in REMIC IV.
Each
of
the Class A Certificates generally represents ownership of a regular interest
in
REMIC IV and also represents (i) the right to receive payments with respect
to
the Net WAC Cap Carry Forward Amount and (ii) the obligation to pay the Class
IO
Distribution Amount (as defined herein). The entitlement to principal of each
REMIC IV Regular Interest ownership of which is represented by a regular
interest which corresponds to each Certificate shall be equal in amount and
timing to the entitlement to principal of such Certificate.
Designation
|
Pass-Through
Rate
|
Initial
Aggregate
Certificate
Balance
|
Latest
Possible
Maturity
Date(1)
|
Class
A-IO
|
3.20%(7)
|
(8)
|
March
25, 2037
|
Class
A
|
Variable(2)
|
$
449,999,688.88
|
March
25, 2037
|
Class
C
|
Variable(2)(3)
|
$
0.00
|
March
25, 2037
|
Class
P
|
(6)
|
$
100.00
|
March
25, 2037
|
Class
IO Interest
|
(4)
|
(5)
|
March
25, 2037
|
________________
(1) For
purposes of Treasury Regulation Section 1.860G-1(a)(4)(iii).
(2) Calculated
in accordance with the definition of Pass-Through Rate herein.
(3) The
Class
C Certificates will accrue interest at their variable Pass-Through Rate on
the
Notional Amount of the Class C Certificates outstanding from time to time,
which
shall equal the aggregate Uncertificated Balance of the REMIC III Regular
Interests. The Class C Certificates will not accrue interest on their
Uncertificated Balance.
(4) For
federal income tax purposes, the Class IO Interest will not have a Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC III
Regular Interest LTII-IO.
(5) For
federal income tax purposes, the Class IO Interest will not have an
Uncertificated Balance, but will have a notional amount equal to the
Uncertificated Notional Amount of REMIC III Regular Interest
LTII-IO.
(6) The
Class
P Certificates will not accrue interest.
(7) Calculated
in accordance with the definition of “Pass-Through Rate” herein and subject to
the related Net WAC Cap.
(8) The
Class
X-1 Certificates will accrue interest based on a Notional Amount, as set forth
herein.
Set
forth
below are designations of Classes of Certificates to the categories used
herein:
Book-Entry
Certificates
|
Class
A and Class A-IO Certificates.
|
ERISA-Restricted
Certificates
|
Class
C, Class P and Class R Certificates; and the Certificates of any
Class
that cease to satisfy the rating requirements of the Underwriter’s
Exemption.
|
Offered
Certificates
|
Class
A and Class A-IO Certificates.
|
Definitive
Certificates
|
Class
C, Class P and Class R
Certificates.
|
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 Residual
Certificates.
|
Residual
Certificates
|
Class
R Certificates.
|
ARTICLE
I
Definitions
Section 1.01 |
Definitions.
|
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Class A Certificates shall be made on the basis
of
the actual number of days elapsed and a 360-day year and all calculations in
respect of interest on the Class A-IO Certificates, Class C Certificates, REMIC
I Regular Interests, REMIC II Regular Interests, REMIC III Regular Interests
and
all other calculations of interest described herein shall be made on the basis
of a 360-day year consisting of twelve 30-day months. The Class P and Residual
Certificates are not entitled to distributions in respect of interest and,
accordingly, will not accrue interest.
Accrued
Certificate Interest Distribution Amount:
For any
Distribution Date and the Offered Certificates, the amount of interest accrued
during the related Interest Accrual Period at the Pass-Through Rate on the
Class
Certificate Balance or Notional Amount, as applicable, immediately before the
Distribution Date reduced by any Net Interest Shortfalls for such Distribution
Date allocated to such Class pursuant to Section 4.04.
Adjusted
Mortgage Rate:
As to
each Mortgage Loan and at any time, the per annum rate equal to (x) the Mortgage
Rate less (y) the Servicing Fee Rate.
Adjusted
Premium Rate:
As to
any Distribution Date, a per annum rate equal to the Premium Rate multiplied
by
a fraction, the numerator of which is the Class Certificate Balance of the
Class
A Certificates immediately prior to such Distribution Date and the denominator
of which is the aggregate Stated Principal Balance of the Mortgage Loans as
of
the first day of the related Remittance Period, adjusted to reflect unscheduled
principal payments made thereafter that were included in the Principal
Distribution Amount on the immediately preceding Distribution Date.
Advance:
The
payment required to be made by the Servicer for any Distribution Date pursuant
to Section 4.01 (other than any amounts advanced pursuant to Section 4.01(d)),
the amount of that payment being equal to the aggregate of payments of principal
and interest (net of the Servicing Fee and any net proceeds in the case of
any
REO Properties) on the Mortgage Loans that were due during the related
Remittance Period and not received as of the close of business on the related
Determination Date, plus an amount equivalent to interest on each REO Property
less the aggregate amount of any delinquent payments that the Servicer has
determined would constitute a Nonrecoverable Advance if advanced.
Affected
Party:
As
defined in the Interest Rate Swap Agreement.
Affiliate:
With
respect to any Person, any other Person controlling, controlled or under common
control with such Person. For purposes of this definition, “control” means the
power to direct the management and policies of a Person, directly or indirectly,
whether through ownership of voting securities, by contract, or otherwise and
“controlling” and “controlled” shall have meanings correlative to the foregoing.
Affiliates also include any entities consolidated within the requirements of
generally accepted accounting principles.
Agreement:
This
Pooling and Servicing Agreement and all amendments and supplements
hereto.
Amount
Held for Future Distribution:
For any
Distribution Date, the aggregate amount held in the Certificate Account at
the
close of business on the related Determination Date on account of (i) Principal
Prepayments received after the end of the related Prepayment Period and
Liquidation Proceeds and Subsequent Recoveries on the Mortgage Loans, in each
case, received after the end of the preceding calendar month and (ii) all
Scheduled Payments on the Mortgage Loans due after the end of the related
Remittance Period.
Appraised
Value:
With
respect to any Mortgaged Property, the value thereof as determined by an
independent appraisal made at the time of the origination of the related
Mortgage Loan or the sale price, if the appraisal is not available; except
that,
with respect to any Mortgage Loan that is a purchase money mortgage loan, the
lesser of (i) the value thereof as determined by an independent appraisal made
at the time of the origination of such Mortgage Loan, if any, and (ii) the
sales
price of the related Mortgaged Property.
Available
Funds: For
any
Distribution Date, the sum of (i) all scheduled installments of interest (net
of
the Expense Fees) and principal due on the Due Date on the Mortgage Loans in
the
related Remittance Period (or any prior Remittance Period not covered by an
Advance) and received by the related Determination Date, together with any
related Advances; (ii) all Insurance Proceeds with respect to the Mortgage
Loans
(including those received with respect to the Pool Policy and not reimbursable
to the Seller pursuant to Section 2.03(c), but excluding Insurance Proceeds
included in Liquidation Proceeds), Liquidation Proceeds and Subsequent
Recoveries received during the preceding calendar month with respect to the
Mortgage Loans (in each case, net of unreimbursed expenses incurred in
connection with a liquidation or foreclosure and net of the related Excess
Proceeds); (iii) all partial or full Principal Prepayments on the Mortgage
Loans
received during the related Prepayment Period together with all Compensating
Interest on those Mortgage Loans and interest paid by the Mortgagors (other
than
Prepayment Interest Excess) and (iv) amounts received by the Trustee for such
Distribution Date as the Substitution Adjustment Amount or the Purchase Price
of
a Deleted Mortgage Loan or a Mortgage Loan repurchased by the Seller or the
Servicer as of the Distribution Date including proceeds received with respect
to
the termination of the Trust Fund pursuant to Section 9.01 minus (v) amounts
in
reimbursement for Advances previously made and other expenses reimbursable
to
the Servicer with respect to the Mortgage Loans pursuant to this Agreement
(other than amounts included in clause (vi) below); (vi) amounts reimbursable
or
payable to the Servicer, Depositor or the Seller with respect to the Mortgage
Loans for such Distribution Date pursuant to Section 6.03 and (vii) any Net
Swap
Payment or Swap Termination Payment owed to the Swap Provider (to the extent
not
paid by the Supplemental Interest Trust Trustee from any upfront payment
received pursuant to any replacement interest rate swap agreement that may
be
entered into by the Supplemental Interest Trust Trustee and other than Swap
Termination Payments resulting from a Swap Provider Trigger Event). In addition,
Available Funds for any Distribution Date shall include any amounts paid to
the
Trustee by the Pool Insurer which represent a return of the premium paid to
the
Pool Insurer on the Closing Date for Covered Mortgage Loans that has been
rescinded by the Pool Insurer in accordance with the Pool Policy. For avoidance
of doubt, amounts in deposit in the Pool Policy Reserve Account shall not be
included in the definition of “Available Funds”.
Bankruptcy
Code:
The
United States Bankruptcy Reform Act of 1978, as amended.
Book-Entry
Certificates:
As
specified in the Preliminary Statement.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the City of New York, New York, the State of California or
the
city in which the Corporate Trust Office of the Trustee or the Certificate
Insurer is located are authorized or obligated by law or executive order to
be
closed.
Certificate:
Any one
of the Certificates issued by the Trust Fund and executed by the Trustee, in
substantially the forms attached as exhibits.
Certificate
Account:
The
separate Eligible Account or Accounts created and maintained by the Servicer
pursuant to Section 3.06(d) with a depository institution in the name of the
Servicer for the benefit of the Trustee on behalf of Certificateholders and
designated “IndyMac Bank, F.S.B., in trust for the registered holders of Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS
2007-1.”
Certificate
Balance:
With
respect to the Class A Certificates and the Class P Certificates at any date,
the maximum dollar amount of principal to which the Holder of the Certificate
is
then entitled, such amount being equal to the Certificate’s Denomination minus
all distributions of principal previously made with respect thereto. With
respect to the Class C Certificates as of any date of determination, an amount
equal to the excess, if any, of (A) the then aggregate Uncertificated Balance
of
the REMIC III Regular Interests over (B) the then aggregate Certificate Balance
of the Class A and Class P Certificates then outstanding. The Class A-IO
Certificates and the Residual Certificates have no Certificate
Balance.
Certificate
Insurer:
MBIA
Insurance Corporation, a New York State stock insurance corporation or its
successors in interest.
Certificate
Insurer Default: The
failure by the Certificate Insurer to make a payment required under the Policy
in accordance with its terms.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
the Book-Entry Certificate. For purposes of this Agreement, in order for a
Certificate Owner to enforce any of its rights under this Agreement, it shall
first have to provide evidence of its beneficial ownership interest in a
Certificate that is reasonably satisfactory to the Trustee, the Depositor and/or
the Servicer, as applicable.
Certificate
Register and Certificate Registrar:
The
register maintained and registrar appointed pursuant to Section
5.02.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register,
except that, solely for the purpose of giving any consent pursuant to this
Agreement, any Certificate registered in the name of the Seller, the Depositor
or its Affiliate shall not be eligible to vote or be considered Outstanding
and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary
to
effect a consent has been obtained unless the Seller, the Depositor or its
Affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, in which case the Certificates shall be Outstanding for purposes
of any provision of this Agreement requiring the consent of the Holders of
Certificates of a particular Class as a condition to the taking of any action.
The Trustee 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.
Charge-off
Amount:
On any
Distribution Date, for any Charged-Off Mortgage Loan, the Stated Principal
Balance of that Mortgage Loan that has been written down.
Charged-Off
Mortgage Loan:
A
Mortgage Loan with (i) a Stated Principal Balance that has been written down
on
the Servicer’s servicing system in accordance with its policies and procedures
and (ii) any Mortgage Loan that is more than 120 days past due.
Class:
All
Certificates bearing the same class designation, as specified in the Preliminary
Statement.
Class
A Certificates:
Any one
of the Class A Certificates executed by the Trustee, and authenticated and
delivered by the Certificate Registrar substantially in the form annexed hereto
as Exhibit A and evidencing a REMIC Regular Interest in REMIC II.
Class
A-IO Certificate:
Any one
of the Class A-IO Certificates executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, substantially in the form annexed hereto
as Exhibit B and evidencing a Regular Interest in REMIC III.
Class
Certificate Balance:
For any
Class as of any date of determination, the aggregate of the Certificate Balances
of all Certificates of such Class as of that date.
Class
C Certificates:
Any one
of the Class C Certificates executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, representing the right to distributions
as set forth herein and therein and (i) a REMIC Regular Interest in REMIC IV,
(ii) beneficial ownership of the Excess Reserve Fund Account and (iii)
beneficial ownership of the Supplemental Interest Trust.
Class
C Distributable Amount:
On any
Distribution Date, the amount that has accrued on the Class C Certificates
but
that has not been distributed on the Class C Certificates on prior Distribution
Dates.
Class
IO Distribution Amount:
As
defined in Section 4.05 hereof. For purposes of clarity, the Class IO
Distribution Amount for any Distribution Date shall equal the amount payable
to
the Supplemental Interest Trust on such Distribution Date in excess of the
amount payable on the Class IO Interest on such Distribution Date, all as
further provided in Section 4.05 hereof.
Class
IO Interest:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
REMIC Regular Interest in REMIC IV for purposes of the REMIC
Provisions.
Class
P Certificate:
Any one
of the Class P Certificates executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, representing the right to distributions
as set forth herein and therein and evidencing a regular interest in REMIC
IV.
Class
R Certificate:
A
certificate representing the beneficial ownership of the Class R-I Interest,
the
Class R-II Interest, the Class R-III Interest and the Class R-IV
Interest.
Class
R-I Interest:
The
uncertificated residual interest in REMIC I.
Class
R-II Interest:
The
uncertificated residual interest in REMIC II.
Class
R-III Interest:
The
uncertificated residual interest in REMIC III.
Class
R-IV Interest:
The
uncertificated residual interest in REMIC IV.
Closing
Date:
February 14, 2007.
Code:
The
United States Internal Revenue Code of 1986, including any successor or
amendatory provisions.
Collateral
Value:
For any
Mortgage Loan, the Collateral Value of the related Mortgaged Property shall
be,
other than for Refinance Loans, the lesser of (i) the appraised value determined
in an appraisal obtained by the originator at origination of the Mortgage Loan
and (ii) the sales price for the related Mortgaged Property. In the case of
a
Refinance Loan, the Collateral Value of the related Mortgaged Property is its
appraised value determined in an appraisal obtained at the time of
refinancing.
Commission.
The
United States Securities and Exchange Commission.
Compensating
Interest:
For any
Distribution Date, the lesser of (i) any Prepayment Interest Shortfalls with
respect to such Distribution Date and the Mortgage Loans and (ii) 0.125%
multiplied by one-twelfth multiplied by the aggregate Stated Principal Balance
of the Mortgage Loans , as of the first day of the related Remittance
Period.
Corporate
Trust Office:
The
designated office of the Trustee and the Supplemental Interest Trust Trustee
in
the State of California at which at any particular time its corporate trust
business with respect to this Agreement is administered, which office at the
date of the execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx
Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attn: Corporate Trust Administration IN07G1
(IndyMac ABS, Inc., Home Equity Mortgage Loan Asset-Backed Trust, Series INDS
2007-1), facsimile no. (000) 000-0000 and which is the address to which notices
to and correspondence with the Trustee or the Supplemental Interest Trust
Trustee should be directed or. With respect to the Certificate Registrar, the
designated office for presentment and surrender of Certificates for
registration, transfer or exchange thereof located at DB Services Tennessee,
000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Transfer
Unit.
Corresponding
Certificate: With
respect to each REMIC III Regular Interest, as follows:
REMIC
II Regular Interest
|
Class
|
REMIC
III Regular Interest LTII-A
|
A
|
REMIC
III Regular Interest LTII-AIO
|
A-IO
|
Covered
Mortgage Loan:
Any
Mortgage Loan covered by the Pool Policy as identified on the Mortgage Loan
Schedule.
Credit
Support Annex:
The
credit support annex, dated as of February 14, 2007, between the Supplemental
Interest Trust Trustee and the Swap Provider.
Credit
Support Collateral Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 4.11 in the name of the Trustee for the benefit of the
Certificateholders and designated “Credit Support Collateral Account, Deutsche
Bank National Trust Company, as Supplemental Interest Trust Trustee, in trust
for registered holders of IndyMac Home Equity Mortgage Loan Asset-Backed
Certificates, Series INDS 2007-1.” Funds in the Credit Support Collateral
Account shall be held in trust for the Certificateholders for the uses and
purposes set forth in this Agreement. The Credit Support Collateral Account
will
not be an asset of any REMIC.
Cumulative
Covered Loan Loss:
With
respect to any Distribution Date, the aggregate amount of Loss (as defined
in the Pool Policy but without regard to any references to “the
Company”) from the Cut-off Date through the last day of the related
Remittance Period with respect to the Mortgage Loans identified on the Mortgage
Loan Schedule on the Closing Date as Covered Mortgage Loans that became,
following the Closing Date, four (4) months in Default (as defined in the
Pool Policy).
Cut-off
Date:
February 1, 2007.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, its Stated Principal Balance as of the close of business
on
the related Cut-off Date without giving effect to Principal Prepayments received
after such Cut-off Date.
Debt
Service Reduction:
For any
Mortgage Loan, a reduction by a court of competent jurisdiction, in a proceeding
under the Bankruptcy Code, in the Scheduled Payment for the Mortgage Loan that
became final and non-appealable, but not including a reduction (i) resulting
from a Deficient Valuation or (ii) that results in a permanent forgiveness
of
principal.
Defaulting
Party:
As
defined in the Interest Rate Swap Agreement.
Deferred
Premium Amount: As
defined in Section 4.10 herein.
Deferred
Premium Release Date:
The date
which is three (3) Business Days immediately following the earliest of: (i)
the
date, if any, that the Pool Insurer delivers written notice to the Trustee
(with
a copy to the Certificate Insurer) that the Maximum Aggregate Liability (as
defined in the Pool Policy) has been paid by the Pool Insurer under the terms
of
the Pool Policy, (ii) the date, if any, that the Pool Insurer delivers written
notice to the Trustee (with a copy to the Certificate Insurer), that the
remaining deductible under the Pool Policy exceeds the aggregate outstanding
principal balance of the Covered Mortgage Loans as of such date, (iii) the
date
that the Trust Fund is terminated pursuant to Section 9.01, or (iv) the maturity
or other liquidation of the last Mortgage Loan remaining in the Trust Fund
and
the disposition of all REO Property.
Deficiency
Amount:
As
defined in the Policy.
Deficient
Valuation:
For any
Mortgage Loan, a valuation by a court of competent jurisdiction of the related
Mortgaged Property in an amount less than the then outstanding indebtedness
under such Mortgage Loan, or any reduction in the amount of principal to be
paid
in connection with any Scheduled Payment, that results in a permanent
forgiveness of principal, which valuation or reduction results from an order
of
the court that is final and non-appealable in a proceeding under the Bankruptcy
Code.
Definitive
Certificates:
As
specified in the Preliminary Statement.
Delayed
Delivery Certification:
A
certification substantially in the form of Exhibit G-2.
Delayed
Delivery Mortgage Loans:
The
Mortgage Loans identified as such on the Mortgage Loan Schedule, for which
neither a related Mortgage File nor the Mortgage Note (or lost note affidavit
for a lost Mortgage Note) has been delivered to the Trustee by the Closing
Date.
Deleted
Mortgage Loan:
As
defined in Section 2.03(c).
Denomination:
For
each Certificate, the amount appearing on the face of the Certificate as the
“Initial Certificate Balance of this Certificate” or the Percentage Interest
appearing on the face of the Certificate.
Depositor:
IndyMac
ABS, Inc., a Delaware corporation, or its successor in interest.
Depository:
The
initial Depository shall be The Depository Trust Company, the nominee of which
is Cede & Co., as the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in Section
8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Participant:
A
broker, dealer, bank, or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Determination
Date:
As to
any Distribution Date, the 18th
day of
each month or, if that day is not a Business Day, the next Business Day, except
that if the next Business Day is less than two (2) Business Days before the
related Distribution Date, then the Determination Date shall be the Business
Day
preceding the 18th
day of
the month.
Distribution
Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 3.06(f) in the name of the Trustee for the benefit of the
Certificateholders and designated “Deutsche Bank National Trust Company in trust
for registered holders of IndyMac Home Equity Mortgage Loan Asset-Backed
Certificates, Series INDS 2007-1.” 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, or if that day is not a Business Day, the next Business
Day, commencing in March 2007.
Due
Date:
For any
Mortgage Loan and Distribution Date, the first day of the month in which the
Distribution Date occurs.
Eligible
Account:
Any of
(i) an account 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) 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 (iii) any other account acceptable
to each Rating Agency without reduction or withdrawal of their then current
ratings of the Certificates (without regard to the Policy), as evidenced by
a
letter from each Rating Agency to the Trustee. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying
Underwriting:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
ERISA-Restricted
Certificate:
As
specified in the Preliminary Statement.
Escrow
Account:
The
Eligible Account or Accounts established and maintained pursuant to Section
3.07(a).
Estimated
Swap Termination Payment:
As
defined in the Interest Rate Swap Agreement.
Event
of Default:
As
defined in Section 7.01.
Excess
Proceeds:
For any
Liquidated Mortgage Loan, the excess of (a) all Liquidation Proceeds from the
Mortgage Loan received in the calendar month in which the Mortgage Loan became
a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Servicer as Nonrecoverable Advances with respect to the Mortgage Loan pursuant
to Section 3.09(a)(ii), over (b) the sum of (i) the unpaid principal balance
of
the Liquidated Mortgage Loan as of the Due Date in the month in which the
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued interest
at
the Mortgage Rate from the Due Date for which interest was last paid or advanced
(and not reimbursed) to Certificateholders up to the Due Date applicable to
the
Distribution Date following the calendar month during which the liquidation
occurred.
Excess
Reserve Fund Account:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 3.06(d) in the name of the Trustee for the benefit of the
Certificateholders and designated “Deutsche Bank National Trust Company in trust
for registered holders of IndyMac Home Equity Mortgage Loan Asset-Backed Trust,
Series INDS 2007-1.” Funds in the Excess Reserve Fund Account shall be held in
trust for the Certificateholders of the Class A Certificates for the uses and
purposes set forth in this Agreement. The Excess Reserve Fund Account will
not
be an asset of any REMIC.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Expense
Adjusted Net Mortgage Rate: For
any
Distribution Date and a Mortgage Loan, the per annum rate equal to the Mortgage
Rate of that Mortgage Loan as of the first day of the month preceding the month
in which that Distribution Date occurs minus the Expense Fee Rate.
Expense
Fees:
As to
each Mortgage Loan, the sum of the Servicing Fee and Trustee Fee for such
Mortgage Loan.
Expense
Fee Rate:
The sum
of the Servicing Fee Rate and the Trustee Fee Rate.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC:
The
Federal Home Loan Mortgage Corporation, a corporate instrumentality of the
United States created and existing under Title III of the Emergency Home Finance
Act of 1970, as amended, or any successor thereto..
Final
Distribution Date:
The
Distribution Date in March 2037.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by IndyMac Bank, F.S.B. (on
its own behalf as a seller) pursuant to or as contemplated by Section 2.03(c),
Section 3.12(c) or Section 9.01), a determination made by
the Servicer that all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries which the Servicer, in its reasonable good faith
judgment, expects to be finally recoverable in respect thereof have been so
recovered. The Servicer shall maintain records of each Final Recovery
Determination made thereby.
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.
Indirect
Participant:
A
broker, dealer, bank, or other financial institution or other Person that clears
through or maintains a custodial relationship with a Depository
Participant.
Insurance
Account:
As
defined in Section 4.07(b).
Insurance
Agreement:
The
Insurance and Indemnity Agreement, dated as of the Closing Date, among the
Certificate Insurer, the Trustee, the Servicer, the Seller and the
Depositor.
Insurance
Policy:
For any
Mortgage Loan included in the Trust Fund, any insurance policy, including all
its riders and endorsements in effect, including any replacement policy or
policies for any Insurance Policies.
Insurance
Proceeds:
Proceeds paid by an insurer pursuant to any Insurance Policy, in each case
other
than any amount included in such Insurance Proceeds in respect of Insured
Expenses or released to the Mortgagor.
Insured
Amount: With
respect to any Distribution Date, the Deficiency Amount for such Distribution
Date.
Insured
Expenses:
Expenses covered by an Insurance Policy, including the Pool Policy, or any
other
insurance policy with respect to the Mortgage Loans.
Insured
Payments: As
defined in the Policy.
Interest
Accrual Period:
With
respect to the Class A Certificates and each Distribution Date, the period
commencing on the preceding Distribution Date (or in the case of the first
such
Interest Accrual Period, commencing on the Closing Date) and ending on the
day
preceding such Distribution Date. With respect to the Class C Certificates
and
the Class A-IO Certificates and each Distribution Date, the calendar month
prior
to the month of such Distribution Date.
Interest
Rate Swap Agreement:
The
interest rate swap agreement, dated the Closing Date, between the Supplemental
Interest Trust Trustee, as trustee on behalf of the Supplemental Interest Trust,
and the Swap Provider, which agreement provides for Net Swap Payments and Swap
Termination Payments to be paid, as provided therein, together with any
schedules, confirmations or other agreements relating thereto, attached hereto
as Exhibit Q.
Interest
Remittance Amount:
For any
Distribution Date, the portion of clauses (i) through (iv) of Available Funds
that is attributable to interest minus the sum of the amounts included in
clauses (v) (insofar as such amounts relate to reimbursement for advances of
delinquent interest), (vi) and (vii) of Available Funds.
Late
Payment Rate:
With
respect to the Policy, the lesser of (a) the greater of (i) the per annum rate
of interest published in the Wall
Street Journal
from
time to time as the “prime rate” plus 3%, and (ii) the then applicable highest
rate of interest on the Class A Certificates and (b) the maximum rate
permissible under applicable usury or similar laws limiting interest rates,
as
determined by the Certificate Insurer. The Late Payment Rate shall be computed
on the basis of the actual number of days elapsed over a year of 360
days.
Lender
PMI Loan:
Any
Mortgage Loan with respect to which the related lender rather than the related
borrower acquired primary mortgage guaranty insurance and charged the related
borrower an interest premium.
LIBOR:
For any
Interest Accrual Period for the Class A Certificates, the rate determined by
the
Trustee on the related LIBOR Determination Date on the basis of the offered
rate
for one-month U.S. dollar deposits that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on that
date. If the
rate
does not appear on Telerate Page 3750, the rate for that
date
will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are
offered by the Reference Banks at approximately 11:00 a.m. (London time) on
that
date
to prime
banks in the London interbank market. In that case, the Trustee will request
the
principal London office of each of the Reference Banks to provide a quotation
of
its rate. If at least two quotations are so provided, the rate for that date
will be the arithmetic mean of the quotations (rounded upwards if necessary
to
the nearest whole multiple of 1/16%). If fewer than two quotations are provided
as requested, the rate for that date will be the arithmetic mean of the rates
quoted by major banks in New York City, selected by the Servicer, at
approximately 11:00 a.m. (New York City time) on that
date
for
one-month U.S. dollar loans to leading European banks.
LIBOR
Determination Date: For
any
Interest Accrual Period for the Class A Certificates, the second London Business
Day preceding the commencement of the Interest Accrual Period.
Liquidated
Mortgage Loan:
For any
Distribution Date, a defaulted Mortgage Loan (including any REO Property) that
was liquidated in the calendar month preceding the month of the Distribution
Date and as to which the Servicer has certified (in accordance with this
Agreement) that it has received all amounts it expects to receive in connection
with the liquidation of the Mortgage Loan, including the final disposition
of an
REO Property.
Liquidation
Proceeds:
Amounts, including Insurance Proceeds regardless of when received, received
in
connection with the partial or complete liquidation of defaulted Mortgage Loans,
whether through trustee’s sale, foreclosure sale, or otherwise or amounts
received in connection with any condemnation or partial release of a Mortgaged
Property, and any other proceeds received in connection with an REO Property,
less the sum of related unreimbursed Servicing Fees, Servicing Advances and
Advances.
Loan-to-Value
Ratio:
For any
Mortgage Loan and as of any date of determination, the fraction whose numerator
is the principal balance of the related Mortgage Loan at that
date
of
determination and whose denominator is the Collateral Value of the related
Mortgaged Property.
London
Business Day: Any
day
on which dealings in deposits of United States dollars are transacted in the
London interbank market.
Lost
Mortgage Note:
Any
Mortgage Note the original of which was permanently lost or destroyed and has
not been replaced.
Majority
in Interest:
As to
any Class of Regular Certificates, the Holders of Certificates of such Class
evidencing, in the aggregate, at least 51% of the Percentage Interests evidenced
by all Certificates of such Class.
Marker
Rate:
With
respect to the Class C Certificates and any Distribution Date, a per annum
rate
equal to two (2) times the weighted average of the REMIC III Remittance Rates
for each REMIC III Regular Interest (other than REMIC III Regular Interest
LTII-AA, LTII-IO and LTII-AIO) subject to a cap (for each such REMIC III Regular
Interest other than REMIC III Regular Interest LTII-ZZ) equal to the
Pass-Through Rate for the Corresponding Certificate for the purpose of this
calculation: with the rate on REMIC III Regular Interest LTII-ZZ subject to
a
cap of zero for the purpose of this calculation; provided, however, that solely
for this purpose, calculations of the REMIC III Remittance Rate and the related
caps with respect to each such REMIC III Regular Interest, other than REMIC
III
Regular Interest LTII-ZZ, shall be multiplied by a fraction, the numerator
of
which is the actual number of days in the Interest Accrual Period and the
denominator of which is 30.
Maximum
Insured Amount:
$449,550,000 in respect of principal plus interest thereon calculated at the
applicable Pass-Through Rate for the Class A Certificates plus interest on
the
Notional Amount of the Class A-IO Certificates calculated at the applicable
Pass-Through Rate.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS® System.
MERS®
System:
The
system of recording transfers of mortgages electronically that is maintained
by
MERS.
MIN:
The
mortgage identification number for any MERS Mortgage Loan.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
Monthly
Statement:
The
statement prepared by the Trustee pursuant to Section 4.03.
Moody’s:
Xxxxx’x
Investors Service, Inc., or its successors in interest. If Xxxxx’x is designated
as a Rating Agency in the Preliminary Statement, for purposes of Section
10.05(b) the address for notices to Moody’s shall be Xxxxx’x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Residential Loan
Monitoring Group, or any other address that Moody’s furnishes to the Depositor
and the Servicer.
Mortgage:
The
mortgage, deed of trust, or other instrument creating a 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 (including the Delayed Delivery Mortgage Loans), as from time to
time
are held as a part of the Trust Fund (including any REO Property), the Mortgage
Loans so held being identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other acquisition of title of the related Mortgaged
Property.
Mortgage
Loan Schedule:
As of
any date, the list of Mortgage Loans in Schedule I included in the Trust Fund
on
such
date.
The
Mortgage Loan Schedule shall be prepared by the Seller and shall contain the
following information with respect to each Mortgage Loan:
(i)
|
the
loan number;
|
(ii)
|
the
zip code of the Mortgaged Property;
|
(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 applicable Cut-off
Date;
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
(ix)
|
a
code indicating whether the residential dwelling at the time of
origination was represented to be owner-occupied;
|
(x)
|
a
code indicating whether the residential dwelling is either (a) a
detached
single family dwelling, (b) a townhouse, (c) a dwelling in a PUD,
(d) a
condominium unit or (e) a two- to four-unit residential
property;
|
(xi)
|
the
Mortgage Rate in effect immediately following: (a) the applicable
date of
origination and (b) the applicable Cut-off Date;
|
(xii)
|
the
purpose for the Mortgage Loan;
|
(xiii)
|
the
type of documentation program pursuant to which the Mortgage Loan
was
originated;
|
(xiv)
|
a
code indicating whether the Mortgage Loan is a borrower-paid mortgage
insurance loan;
|
(xv)
|
[reserved];
|
(xvi)
|
a
code indicating whether the Mortgage Loan is a Lender PMI
Loan;
|
(xvii)
|
the
coverage amount of any mortgage insurance;
|
(xviii)
|
with
respect to the Lender PMI Loans, the related interest
premium;
|
(xix)
|
A
code indicating whether the Mortgage Loan is a Delayed Delivery Mortgage
Loan;
|
(xx)
|
A
code indicating whether the Mortgage Loan is a MERS Mortgage Loan;
|
(xxi)
|
A
code indicating the term, if any, of a Prepayment Charge; and
|
(xxii)
|
A
code/notation indicating whether a loan is a Covered Mortgage
Loan
|
The
schedule shall also state the total of amounts described under (v) above for
all
of the Mortgage Loans.
Mortgage
Note:
The
original executed note or other evidence of the indebtedness of a Mortgagor
under a Mortgage Loan.
Mortgage
Rate:
The
annual rate of interest borne by a Mortgage Note from time to time
minus any
interest premium if the applicable Mortgage Note relates to a Lender PMI Loan,
if any.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan.
Mortgagor:
The
obligors on a Mortgage Note.
Net
Interest Shortfalls:
As
defined in Section 4.04 hereof.
Net
Prepayment Interest Shortfall:
For any
Distribution Date, the excess of the Prepayment Interest Shortfalls for such
Distribution Date over the Compensating Interest for such Distribution
Date.
Net
Swap Payment:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Interest Rate Swap Agreement by either the Swap Provider
or
the Supplemental Interest Trust, which net payment shall not take into account
any Swap Termination Payment.
Net
WAC Cap:
With
respect to any distribution date, will be the per annum rate (subject to
adjustment based on the actual number of days elapsed in the related Interest
Accrual Period) equal to the weighted average of the Expense Adjusted Net
Mortgage Rates of the Mortgage Loans (weighted based on the Stated Principal
Balances of the Mortgage Loans as of the first day of the related Remittance
Period, adjusted to reflect unscheduled principal payments made thereafter
that
were included in the Principal Distribution Amount on the immediately preceding
distribution date) minus the sum of (i) the Premium Rate multiplied by a
fraction, the numerator of which is the Class Certificate Balance of the Class
A
Certificates immediately prior to such distribution date and the denominator
of
which is the aggregate Stated Principal Balance of the Mortgage Loans as of
the
first day of the related Remittance Period, adjusted to reflect unscheduled
principal payments made thereafter that were included in the Principal
Distribution Amount on the immediately preceding distribution date, (ii) the
stated Pass-Through Rate on the Class A-IO Certificates multiplied by a
fraction, the numerator of which is the Notional Balance immediately prior
to
such distribution date and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the related
Remittance Period, adjusted to reflect unscheduled principal payments made
thereafter that were included in the Principal Distribution Amount on the
immediately preceding distribution date and (iii) the Swap Expense
Rate. For
federal income tax purposes, the economic equivalent of such rate shall be
expressed as the product of (x) the weighted average of the REMIC III Remittance
Rates on REMIC III Regular Interest LTII-AA, REMIC III Regular Interest LTII-A
and REMIC III Regular Interest LTII-ZZ, weighted on the basis of the
Uncertificated Balance of each such REMIC III Regular Interest for such
Distribution Date and (y) 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.
Net
WAC Cap Carry Forward Amount:
For the
Class A Certificates and any Distribution Date, an amount equal to the aggregate
amount of Net WAC Shortfall for such Distribution Date, plus any unpaid Net
WAC
Shortfall from prior Distribution Dates (and interest accrued thereon at the
then applicable Pass-Through Rate on the Class A Certificates, without giving
effect to the Net WAC Cap).
Net
WAC Shortfall:
For the
Class A Certificates and any Distribution Date on which the Pass-Through Rate
is
the Net WAC Cap, an amount equal to excess of (x) the amount of interest the
Class A Certificates would have accrued for such Distribution Date had such
Pass-Through Rate not been limited by the Net WAC Cap over (y) the amount of
interest the Class A Certificates accrued for such Distribution Date at the
Net
WAC Cap.
Nonrecoverable
Advance:
Any
portion of an Advance previously made or proposed to be made by the Servicer,
that, in the good faith judgment of the Servicer, will not be ultimately
recoverable by the Servicer from the related Mortgagor or related Liquidation
Proceeds or otherwise from collections related to the Mortgage
Loan.
Nonrecoverable
Servicing Advance: Any
portion of a Servicing Advance previously made or proposed to be made by the
Servicer, that, in the good faith judgment of the Servicer, will not be
ultimately recoverable by the Servicer from the related Mortgagor or related
Liquidation Proceeds or otherwise from collections related to the Mortgage
Loan.
Notice
of Final Distribution:
The
notice to be provided pursuant to Section 9.02, to the effect that final
distribution on any of the Certificates shall be made only on its presentation
and surrender.
Notional
Amount:
With
respect to the Class C Certificate and any Distribution Date, the aggregate
Uncertificated Balance of the REMIC III Regular Interests (other than REMIC
III
Regular Interest LTII-P, REMIC Regular Interest LTII-AIO and REMIC Regular
Interest LTII-IO) immediately prior to Distribution Date. With respect to the
Class A-IO Certificates and
the
Interest Accrual Period for any Distribution Date (x) on or prior to the
February 2008 Distribution Date, the lesser of $45,000,000 and the aggregate
principal balance of the Mortgage Loans and (y) after the Distribution Date
occurring in February 2008, zero.
For
federal income tax purposes, the Class A-IO Certificates will not have a
Notional Amount, but will be entitled to 100% of all amounts distributed on
the
REMIC III Regular Interest LTII-AIO.
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, the Certificate
Insurer and the Trustee as required by this Agreement.
Opinion
of Counsel:
For the
interpretation or application of the REMIC Provisions, counsel must (i) in
fact
be independent of the Depositor and the Servicer, (ii) not have any direct
financial interest in the Depositor or the Servicer or in any affiliate of
either, and (iii) not be connected with the Depositor or the Servicer as an
officer, employee, promoter, underwriter, trustee, partner, director, or person
performing similar functions. Otherwise, Opinion of Counsel is a written opinion
of counsel, who may be counsel for the Depositor or the Servicer, including
in-house counsel, reasonably acceptable to the Trustee and the Certificate
Insurer.
Optional
Termination:
The
termination of the Trust Fund created hereunder in connection with the purchase
of the Mortgage Loans pursuant to Section 9.01(a).
Optional
Termination Date:
The
Distribution Date following the last day of the related Remittance Period on
which the aggregate Stated Principal Balance of the Mortgage Loans and any
REO
Property declines to less than 10% of the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Cut-off Date.
OTS:
The
Office of Thrift Supervision.
Outstanding:
For the
Certificates as of any date of determination, all Certificates theretofore
executed and authenticated under this Agreement except (i) Certificates
theretofore canceled by the Trustee or delivered to the Trustee for cancellation
and (ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee pursuant to this
Agreement; provided however, that Certificates which have been paid with
proceeds of the Policy shall continue to remain Outstanding for purposes of
this
Agreement until the Certificate Insurer has been paid as a subrogee under the
Insurance Agreement or the Certificate Insurer has been reimbursed pursuant
to
the Insurance Agreement, as evidenced by a written notice from the Insurer
delivered to the Trustee, and the Certificate Insurer shall be deemed to be
a
Holder thereof to the extent of any payments made by the Certificate
Insurer.
Outstanding
Mortgage Loan:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero
that was not the subject of a Principal Prepayment in Full before the Due Date
or during the Prepayment Period related to that Due Date and that did not become
a Liquidated Mortgage Loan before the Due Date.
Overcollateralization
Amount:
For any
Distribution Date, the excess of (i) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the Distribution Date over (ii) the Class Certificate
Balance of the Class A Certificates and Class P Certificates on such
Distribution Date (assuming 100% of the Principal Remittance Amount is
distributed to the Class A Certificates on such Distribution Date).
Ownership
Interest:
As to
any Residual Certificate, any ownership interest in the Certificate, including
any interest in the Certificate as its Holder and any other interest therein,
whether direct or indirect, legal or beneficial.
Pass-Through
Margin:
With
respect to the Class of Class A Certificates 0.150% for the Interest Accrual
Period for each Distribution Date on or prior to the Optional Termination Date
and 0.300% for each other Interest Accrual Period.
Pass-Through
Rate: With
respect to the Class A Certificates and any Distribution Date, the lesser of
(x)
LIBOR plus the Pass-Through Margin for such Distribution Date and (y) the Net
WAC Cap for such Distribution Date.
With
respect to the Class A-IO Certificates and any Distribution Date (x) on or
prior
to the February 2008 Distribution Date, 3.20% per annum and (y) after the
February 2008 Distribution Date, zero.
With
respect to the Class C Certificates and any Distribution Date, a rate per annum
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of interest on the Uncertificated Balance of each REMIC III Regular
Interest listed in clause (y) at a rate equal to the related REMIC III
Remittance Rate minus the Marker Rate and the denominator of which is (y) the
aggregate Uncertificated Balance of REMIC III Regular Interest LTII-AA, LTII-A
and LII-TZZ.
The
Class
IO Interest will be entitled to 100% of the amounts distributed on REMIC III
Regular Interest LTII-IO.
Percentage
Interest:
As to
any Certificate, the percentage interest evidenced thereby in distributions
required to be made on the related Class, such percentage interest being stated
on its face or equal to the percentage obtained by dividing the Denomination
of
the Certificate by the aggregate of the Denominations of all Certificates of
the
same Class.
Permitted
Investments:
At any
time, any of the following:
(i) obligations
of the United States or any agency thereof backed by the full faith and credit
of the United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or any lower rating that will not result in the downgrading
or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies (determined without regard to the Policy), as evidenced by a signed
writing delivered by each Rating Agency;
(iii) commercial
or finance company paper that is then receiving the highest commercial or
finance company paper rating of each Rating Agency, or any lower rating that
will not result in the downgrading or withdrawal of the ratings then assigned
to
the Certificates by the Rating Agencies (without regard to the Policy), as
evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal or state banking authorities; provided, that the commercial paper
or
long-term unsecured debt obligations of the depository institution or trust
company (or in the case of the principal depository institution in a holding
company system, the commercial paper or long-term unsecured debt obligations
of
the holding company, but only if Xxxxx’x is not a Rating Agency) are then rated
one of the two highest long-term and the highest short-term ratings of each
Rating Agency for the securities, or any lower rating that will not result
in
the downgrading or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies (without regard to the Policy), as evidenced by a signed
writing delivered by each Rating Agency;
(v) demand
or
time deposits or certificates of deposit issued by any bank or trust company
or
savings institution to the extent that the deposits are fully insured by the
FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company, or other
corporation acceptable to the Rating Agencies at the time of the issuance of
the
agreements, as evidenced by a signed writing delivered by each Rating
Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (iv) above; provided, that
such repurchase obligation would be accounted for as a financing arrangement
under generally accepted accounting principles;
(viii) securities
(other than stripped bonds, stripped coupons, or instruments sold at a purchase
price in excess of 115% of their face amount) bearing interest or sold at a
discount, issued by any corporation incorporated under the laws of the United
States or any state thereof, that, at the time of the investment, have one
of
the two highest ratings of each Rating Agency (except that if the Rating Agency
is Moody’s, the rating shall be the highest commercial paper rating of Moody’s
for the securities), or any lower rating that will not result in the downgrading
or withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies (without regard to the Policy), as evidenced by a signed writing
delivered by each Rating Agency;
(ix) units
of
a taxable money-market portfolio having the highest rating assigned by each
Rating Agency and restricted to obligations issued or guaranteed by the United
States of America or entities whose obligations are backed by the full faith
and
credit of the United States of America and repurchase agreements collateralized
by such obligations; and
(x) any
other
investments bearing interest or sold at a discount acceptable to the Rating
Agencies that will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies (without regard to
the
Policy), as evidenced by a signed writing delivered by each Rating
Agency.
No
Permitted Investment may (i) evidence the right to receive interest only
payments with respect to the obligations underlying the instrument, (ii) be
sold
or disposed of before its maturity or (iii) be any obligation of the Seller
or
any of its Affiliates. Any Permitted Investment shall be relatively risk free
and no options or voting rights shall be exercised with respect to any Permitted
Investment. Any Permitted Investment shall be sold or disposed of in accordance
with Statement of Financial Accounting Standards No. 140, paragraph 35c(6),
in
effect as of the Closing Date.
Permitted
Transferee:
Any
Person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing; (ii) a
foreign government, International Organization, or any agency or instrumentality
of either of the foregoing; (iii) an organization (except certain farmers’
cooperatives described in Section 521 of the Code) that is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511
of
the Code on unrelated business taxable income) on any excess inclusions (as
defined in Section 860E(c)(1) of the Code) with respect to any Residual
Certificate; (iv) rural electric and telephone cooperatives described in Section
1381(a)(2)(C) of the Code; (v) an “electing large partnership” as defined in
Section 775 of the Code; (vi) a Person that is not a U.S. Person and (vii)
any
other Person so designated by the Depositor based on an Opinion of Counsel
that
the Transfer of an Ownership Interest in a Residual Certificate to the Person
may cause any REMIC created under this Agreement to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms “United
States,”
“State,”
and
“International
Organization”
have
the meanings in Section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its activities
are
subject to tax and, with the exception of the FHLMC, a majority of its board
of
directors is not selected by such government unit.
Person:
Any
individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
Policy:
The
certificate guaranty insurance policy (policy # 491720) relating to the Offered
Certificates dated the Closing Date and issued by the Certificate
Insurer.
Pool
Insurer:
Radian
Insurance Inc., a Pennsylvania domiciled and licensed insurer, or its successor
in interest.
Pool
Policy:
The
mortgage pool insurance policy (policy # R0150280) with an effective date of
February 14, 2007 and issued by the Pool Insurer.
Pool
Policy Reserve Account: The
separate and Eligible Account created and maintained by the Trustee pursuant
to
Section 4.10 in the name of the Trustee for the benefit of the Pool Insurer
and
designated “Deutsche Bank National Trust Company in trust for Radian Insurance
Inc.” Funds in the Pool Policy Reserve Account shall be held in trust for the
Pool Insurer for the uses and purposes set forth in this Agreement. The Pool
Policy Reserve Account will not be an asset of any REMIC. For the avoidance
of
doubt, funds in the Pool Policy Reserve Account will not be included in
“Available Funds.”
Pool
Stated Principal Balance:
As to
any Distribution Date, the aggregate Stated Principal Balance of the Outstanding
Mortgage Loans on the last day of the related Remittance Period (after giving
effect to Principal Prepayments received in the Prepayment Period related to
that prior Due Date).
Preference
Amount: As
defined in the Policy.
Premium
Rate:
For any
Distribution Date, 0.22% per annum.
Prepayment
Charge:
As to a
Mortgage Loan, any charge paid by a Mortgagor in connection with certain partial
prepayments and all prepayments in full made within the related Prepayment
Charge Period, the Prepayment Charges with respect to each applicable Mortgage
Loan so held by the Trust Fund being identified in the Prepayment Charge
Schedule.
Prepayment
Charge Period:
As to
any Mortgage Loan, the period of time during which a Prepayment Charge may
be
imposed.
Prepayment
Charge Schedule:
As of
any date, the list of Prepayment Charges included in the Trust Fund on
that
date
(including the prepayment charge summary attached thereto). The Prepayment
Charge Schedule shall contain the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan account number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
state
of origination in which the related Mortgaged Property is located;
(iv) the
first
date on which a monthly payment is or was due under the related Mortgage
Note;
(v) the
term
of the Prepayment Charge;
(vi) the
original principal amount of the related Mortgage Loan; and
(vii) the
Cut-off Date Principal Balance of the related Mortgage Loan.
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with this Agreement.
Prepayment
Interest Excess:
As to
any Principal Prepayment received by the Servicer on a Mortgage Loan from the
first day through the fifteenth day of any calendar month other than February
2007, 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 February
1,
2007) and on or before the last day of the month preceding the month of such
Distribution Date, the amount, if any, by which one month’s interest at the
related Mortgage Rate, net of the Servicing Fee Rate, on such Principal
Prepayment exceeds the amount of interest paid in connection with such Principal
Prepayment.
Prepayment
Period:
As to
any Distribution Date, the period from and including the 16th
day of
the month immediately prior to the month of such Distribution Date (or, in
the
case of the first Distribution Date, on February 1, 2007) to and including
the
15th
day of
the month of such Distribution Date.
Primary
Insurance Policy:
Each
policy of primary mortgage guaranty insurance or any replacement policy therefor
with respect to any Mortgage Loan.
Principal
Distribution Amount:
For
each Distribution Date, the Principal Remittance Amount for such Distribution
Date minus the excess, if any, of (x) the sum of any Net Swap Payment owed
to
the Swap Provider on that Distribution Date and any Swap Termination Payment
or
unpaid portion thereof owed to the Swap Provider on that Distribution Date
(to
the extent not paid by the Supplemental Interest Trust Trustee from any upfront
payment received pursuant to any replacement Interest Rate Swap Agreement that
may be entered into by the Supplemental Interest Trust Trustee and other than
a
Swap Termination Payment resulting from a Swap Provider Trigger Event) over
(y)
the Interest Remittance Amount (without taking into account any reduction in
he
definition of “Interest Remittance Amount” for clause (vii) of the definition of
“Available Funds”)
Principal
Prepayment:
Any
payment of principal by a Mortgagor on a Mortgage Loan (including the Purchase
Price of any modified Mortgage Loan purchased pursuant to Section 3.12(c))
that
is received in advance of its scheduled Due Date and is not accompanied by
an
amount representing scheduled interest due on any date in any month after the
month of prepayment. The Servicer shall apply partial Principal Prepayments
in
accordance with the related Mortgage Note.
Principal
Prepayment in Full:
Any
Principal Prepayment made by a Mortgagor of the entire principal balance of
a
Mortgage Loan.
Principal
Remittance Amount:
For any
Distribution Date, the sum of the following amounts (without duplication):
(i)
the principal portion of all Scheduled Payments on the Mortgage Loans due during
the related Remittance Period that were received by the Servicer before the
related Determination Date or were part of the Advance for the related
Determination Date; (ii) each Principal Prepayment on a Mortgage Loan received
by the Servicer during the related Prepayment Period; (iii) the Liquidation
Proceeds on the Mortgage Loans allocable to principal and Subsequent Recoveries
actually collected by the Servicer during the preceding calendar month; (iv)
the
principal portion of any Substitution Adjustment Amounts in connection with
a
substitution of a Mortgage Loan as of the Distribution Date; (v) the principal
portion of the Purchase Price with respect to each Deleted Mortgage Loan, the
repurchase obligation for which arose during the preceding calendar month and
that was repurchased before the related Distribution Account Deposit Date;
(vi)
the principal portion of any proceeds from any Primary Insurance Policies on
the
Mortgage Loans or the Pool Policy (and not reimbursable to the Seller pursuant
to Section 2.03(c)) and received during the preceding calendar month and (vii)
the proceeds received with respect to the termination of the Trust Fund pursuant
to Section 9.01 (to the extent such proceeds relate to principal).
Private
Certificates:
As
specified in the Preliminary Statement.
Prospectus
Supplement:
The
Prospectus Supplement dated February 13, 2007 relating to the Offered
Certificates.
PUD:
Planned
Unit Development.
Purchase
Price:
For any
Mortgage Loan required to be purchased by the Seller pursuant to Section 2.01,
2.02, 2.03 or 2.05 or purchased by the Servicer pursuant to Section 3.12, the
sum of (i) 100% of the unpaid principal balance of the Mortgage Loan on the
date
of the purchase; (ii) accrued interest on the Mortgage Loan at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser
is the Servicer or (y) if the purchaser is the Seller and the Seller is the
Servicer) from the date through which interest was last paid by the Mortgagor
to
the Due Date in the month in which the Purchase Price is to be distributed
to
Certificateholders, net of any unreimbursed Advances made by the Servicer on
the
Mortgage Loan and (iii) any costs and damages incurred by the Trust Fund in
connection with any violation by the Mortgage Loan of any predatory or abusive
lending law.
If
the
Mortgage Loan is a Mortgage Loan to be repurchased pursuant to Section 3.12,
the
interest component of the Purchase Price shall be computed (i) on the basis
of
the applicable Adjusted Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the
date
on which the Mortgage Loan is assigned to the Servicer pursuant to Section
3.12(c).
Qualified
Insurer:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
the insurer in connection with the insurance policy issued by the insurer,
duly
authorized and licensed in such states to transact a mortgage guaranty insurance
business in such states and to write the insurance provided by the insurance
policy issued by it, approved as an FNMA- or FHLMC-approved mortgage insurer
or
having a claims paying ability rating of at least “AA” or an equivalent rating
by a nationally recognized statistical rating organization. Any replacement
insurer with respect to a Mortgage Loan must have at least as high a claims
paying ability rating as the insurer it replaces had on the Closing
Date.
Rating
Agency:
Each of
the Rating Agencies specified in the Preliminary Statement. If any of them
or a
successor is no longer in existence, “Rating
Agency”
shall
be the nationally recognized statistical rating organization, or other
comparable Person, designated by the Depositor (and if rating the Offered
Certificates, consented to in writing by the Certificate Insurer), notice of
which designation shall be given to the Trustee. References to a given rating
or
rating category of a Rating Agency means the rating category without giving
effect to any modifiers.
Realized
Loss:
The
excess of the Stated Principal Balance of a defaulted Mortgage Loan over the
net
Liquidation Proceeds with respect thereto that are allocated to the principal
balance of such Mortgage Loan.
Record
Date:
For any
Distribution Date and the Class A Certificates held in book-entry form, the
close of business on the Business Day before that Distribution Date. For any
Distribution Date and the Class A-IO Certificates and any Definitive
Certificate, the close of business on the last Business Day of the month
preceding the month of that Distribution Date.
Reference
Bank:
As
defined in Section 4.08.
Refinance
Loan:
Any
Mortgage Loan the proceeds of which are used to refinance an existing Mortgage
Loan.
Regular
Certificates:
As
defined in the Preliminary Statement.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be published by the Commission or its staff from time
to
time.
Reimbursement
Amount:
As to
any Distribution Date, the sum of (x) (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 the Trustee received the related Insured
Payments or the date such payments were made, and (y) without duplication (i)
any other amounts then due and owing to the Certificate Insurer under the
Insurance Agreement, as certified to the Trustee by the Certificate Insurer
plus
(ii) interest on such amounts at the Late Payment Rate.
Relief
Act:
The
Servicemembers Civil Relief Act.
Relief
Act Interest Shortfall:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended calendar month as a result of the application of the Relief
Act
or similar state laws, the amount, if any, by which (i) interest collectible
on
such Mortgage Loan for the most recently ended calendar month is less than
(ii)
interest accrued thereon for such month pursuant to the Mortgage
Note.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
I Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a regular interest in REMIC I. Each REMIC I Regular
Interest shall accrue interest at the related REMIC I Remittance Rate in effect
from time to time, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement hereto.
REMIC
I Remittance Rate:
With
respect to REMIC I Regular Interest I, a per annum rate equal to the weighted
average of the Expense Adjusted Net Mortgage Rates of the Mortgage Loans minus
the Adjusted Premium Rate. With respect to each REMIC I Regular Interest ending
with the designation “A”, a per annum rate equal to the weighted average of the
Expense Adjusted Net Mortgage Rates of the Mortgage Loans multiplied by 2,
subject to a maximum rate of 10.90%. With respect to each REMIC I Regular
Interest ending with the designation “B”, the greater of (x) a per annum rate
equal to the excess, if any, of (i) 2 multiplied by the weighted average of
the
Expense Adjusted Net Mortgage Rates of the Mortgage Loans over (ii) 10.90%
and
(y) 0.00%.
REMIC
II Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a regular interest in REMIC II. Each REMIC II
Regular Interest shall accrue interest at the related REMIC II Remittance Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Balance as set forth in the Preliminary
Statement hereto. The REMIC II Regular Interests are as follows: REMIC II
Regular Interest LTI-A, REMIC II Regular Interest LTI-AIO, REMIC II Regular
Interest LTI-P and REMIC II Regular Interest LTI-IO.
REMIC
II Remittance Rate:
With
respect to REMIC II Regular Interest LTI-AIO, REMIC II Regular Interest LTI-A,
REMIC III Regular Interest LTI-AIO and REMIC II Regular Interest LTI-ZZ,
a
per
annum rate (but not less than zero) equal to the weighted average of (w) with
respect to REMIC I Regular Interest I, the REMIC I Remittance Rate for such
REMIC I Regular Interest for each such Distribution Date, (x) with respect
to
REMIC I Regular Interests ending with the designation “B”, the weighted average
of the REMIC I Remittance Rates for such REMIC I Regular Interests, weighted
on
the basis of the Uncertificated Balance of such REMIC I Regular Interests for
each such Distribution Date and (y) with respect to REMIC I Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for each such REMIC I Regular
Interest listed below, weighted on the basis of the Uncertificated Balance
of
each such REMIC I Regular Interest for each such Distribution Date:
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
1
|
I-1-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
2
|
I-2-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
|
REMIC
I Remittance Rate
|
|
3
|
I-3-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
and I-2-A
|
REMIC
I Remittance Rate
|
|
4
|
I-4-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-3-A
|
REMIC
I Remittance Rate
|
|
5
|
I-5-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-4-A
|
REMIC
I Remittance Rate
|
|
6
|
I-6-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-5-A
|
REMIC
I Remittance Rate
|
|
7
|
I-7-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-6-A
|
REMIC
I Remittance Rate
|
|
8
|
I-8-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-7-A
|
REMIC
I Remittance Rate
|
|
9
|
I-9-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-8-A
|
REMIC
I Remittance Rate
|
|
10
|
I-10-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-9-A
|
REMIC
I Remittance Rate
|
|
11
|
I-11-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-10-A
|
REMIC
I Remittance Rate
|
|
12
|
I-12-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-11-A
|
REMIC
I Remittance Rate
|
|
13
|
I-13-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-12-A
|
REMIC
I Remittance Rate
|
|
14
|
I-14-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-13-A
|
REMIC
I Remittance Rate
|
|
15
|
I-15-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-14-A
|
REMIC
I Remittance Rate
|
|
16
|
I-16-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-15-A
|
REMIC
I Remittance Rate
|
|
17
|
I-17-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-16-A
|
REMIC
I Remittance Rate
|
|
18
|
I-18-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-17-A
|
REMIC
I Remittance Rate
|
|
19
|
I-19-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-18-A
|
REMIC
I Remittance Rate
|
|
20
|
I-20-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|
21
|
I-21-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-20-A
|
REMIC
I Remittance Rate
|
|
22
|
I-22-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-21-A
|
REMIC
I Remittance Rate
|
|
23
|
I-23-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-22-A
|
REMIC
I Remittance Rate
|
|
24
|
I-24-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-23-A
|
REMIC
I Remittance Rate
|
|
25
|
I-25-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|
26
|
I-26-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-25-A
|
REMIC
I Remittance Rate
|
|
27
|
I-27-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-26-A
|
REMIC
I Remittance Rate
|
|
28
|
I-28-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-27-A
|
REMIC
I Remittance Rate
|
|
29
|
I-29-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-28-A
|
REMIC
I Remittance Rate
|
|
30
|
I-30-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-29-A
|
REMIC
I Remittance Rate
|
|
31
|
I-31-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-30-A
|
REMIC
I Remittance Rate
|
|
32
|
I-32-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-31-A
|
REMIC
I Remittance Rate
|
|
33
|
I-33-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-32-A
|
REMIC
I Remittance Rate
|
|
34
|
I-34-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-33-A
|
REMIC
I Remittance Rate
|
|
35
|
I-35-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-34-A
|
REMIC
I Remittance Rate
|
|
36
|
I-36-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-35-A
|
REMIC
I Remittance Rate
|
|
37
|
I-37-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-36-A
|
REMIC
I Remittance Rate
|
|
38
|
I-38-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-37-A
|
REMIC
I Remittance Rate
|
|
39
|
I-39-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-38-A
|
REMIC
I Remittance Rate
|
|
40
|
I-40-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|
41
|
I-41-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-40-A
|
REMIC
I Remittance Rate
|
|
42
|
I-42-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-41-A
|
REMIC
I Remittance Rate
|
|
43
|
I-43-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
|
44
|
I-44-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-43-A
|
REMIC
I Remittance Rate
|
|
45
|
I-45-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
|
46
|
I-46-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-45-A
|
REMIC
I Remittance Rate
|
|
47
|
I-47-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-46-A
|
REMIC
I Remittance Rate
|
|
48
|
I-48-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-47-A
|
REMIC
I Remittance Rate
|
|
49
|
I-49-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-48-A
|
REMIC
I Remittance Rate
|
|
50
|
I-50-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-49-A
|
REMIC
I Remittance Rate
|
|
51
|
I-51-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-50-A
|
REMIC
I Remittance Rate
|
|
52
|
I-52-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-51-A
|
REMIC
I Remittance Rate
|
|
53
|
I-53-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-52-A
|
REMIC
I Remittance Rate
|
|
54
|
I-54-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-53-A
|
REMIC
I Remittance Rate
|
|
55
|
I-55-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-54-A
|
REMIC
I Remittance Rate
|
|
56
|
I-56-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-55-A
|
REMIC
I Remittance Rate
|
|
57
|
I-57-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-56-A
|
REMIC
I Remittance Rate
|
|
58
|
I-58-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-57-A
|
REMIC
I Remittance Rate
|
|
59
|
I-59-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-58-A
|
REMIC
I Remittance Rate
|
|
60
|
I-60-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-59-A
|
REMIC
I Remittance Rate
|
|
61
|
I-61-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-60-A
|
REMIC
I Remittance Rate
|
|
62
|
I-62-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-61-A
|
REMIC
I Remittance Rate
|
|
63
|
I-63-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-62-A
|
REMIC
I Remittance Rate
|
|
64
|
I-64-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-63-A
|
REMIC
I Remittance Rate
|
|
65
|
I-65-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-64-A
|
REMIC
I Remittance Rate
|
|
66
|
I-66-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-65-A
|
REMIC
I Remittance Rate
|
|
67
|
I-67-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-66-A
|
REMIC
I Remittance Rate
|
|
68
|
I-68-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-67-A
|
REMIC
I Remittance Rate
|
|
69
|
I-69-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-68-A
|
REMIC
I Remittance Rate
|
|
70
|
I-70-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-69-A
|
REMIC
I Remittance Rate
|
|
71
|
I-71-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-70-A
|
REMIC
I Remittance Rate
|
|
72
|
I-72-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-71-A
|
REMIC
I Remittance Rate
|
|
73
|
I-73-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-72-A
|
REMIC
I Remittance Rate
|
|
74
|
I-74-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-73-A
|
REMIC
I Remittance Rate
|
|
75
|
I-75-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-74-A
|
REMIC
I Remittance Rate
|
|
76
|
I-76-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-75-A
|
REMIC
I Remittance Rate
|
|
77
|
I-77-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-76-A
|
REMIC
I Remittance Rate
|
|
78
|
I-78-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-77-A
|
REMIC
I Remittance Rate
|
|
79
|
I-79-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-78-A
|
REMIC
I Remittance Rate
|
|
80
|
I-80-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-79-A
|
REMIC
I Remittance Rate
|
|
81
|
I-81-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-80-A
|
REMIC
I Remittance Rate
|
|
82
|
I-82-A
through I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-81-A
|
REMIC
I Remittance Rate
|
|
83
|
I-83-A
and I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-82-A
|
REMIC
I Remittance Rate
|
|
84
|
I-84-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
I-1-A
through I-83-A
|
REMIC
I Remittance Rate
|
|
thereafter
|
I-1-A
through I-84-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest LTI-IO and (a) the first 84 Distribution
Dates, the excess of (i) the weighted average of the REMIC I Remittance Rates
for REMIC I Regular Interests ending with the designation “A”, over (ii) 2
multiplied by Swap LIBOR and (b) thereafter, 0.00%.
REMIC
III Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount (subject to adjustment based on
the
actual number of days elapsed in the respective Interest Accrual Periods for
the
indicated Regular Interests for such Distribution Date) equal to (a) the product
of (i) the aggregate Stated Principal Balance of the Mortgage Loans and REO
Properties then outstanding and (ii) the REMIC III Remittance Rate for REMIC
III
Regular Interest LTII-AA minus the Marker Rate, divided by (b) 12.
REMIC
III Overcollateralized Amount:
With
respect to any date of determination, (i) 1% of the aggregate Uncertificated
Balance of the REMIC III Regular Interests minus (ii)
the
Uncertificated Balance of REMIC III Regular Interest LTII-A in each case as
of
such date of determination.
REMIC
III Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) one (1) minus a fraction, the numerator of which is two
(2)
times the Uncertificated Balance of REMIC III Regular Interest LTII-A, and
the
denominator of which is the aggregate Uncertificated Balance of REMIC III
Regular Interest LTII-A and REMIC II Regular Interest LTII-ZZ.
REMIC
III Regular Interest:
Any of
the separate non-certificated beneficial ownership interests in REMIC III issued
hereunder and designated as a regular interest in REMIC III. Each REMIC III
Regular Interest shall accrue interest at the related REMIC III Remittance
Rate
in effect from time to time, and shall be entitled to distributions of
principal, subject to the terms and conditions hereof, in an aggregate amount
equal to its initial Uncertificated Balance as set forth in the Preliminary
Statement hereto. The REMIC III Regular Interests are as follows: REMIC III
Regular Interest LTII-AA, REMIC III Regular Interest LTII-A, REMIC III Regular
Interest LTII-AIO, REMIC III Regular Interest LTII-ZZ and REMIC III Regular
Interest LTII-IO.
REMIC
IV Regular Interest:
Any of
the separate beneficial ownership interests in REMIC IV issued hereunder and
designated as a regular interest in REMIC IV. Each REMIC IV Regular Interest
shall accrue interest at the related Pass-Through Rate in effect from time
to
time, and shall be entitled to distributions of principal, subject to the terms
and conditions hereof, in an aggregate amount equal to its initial Certificate
Balance as set forth in the Preliminary Statement hereto. The Class A
Certificates, the Class A-IO Certificates, the Class C Certificates, the Class
P
Certificates and the Class IO Interest represent beneficial ownership interests
in REMIC IV issued hereunder and are designated as regular interests in REMIC
IV.
REMIC
Provisions:
Provisions of the federal income tax law relating to REMICs, which appear at
Sections 860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations promulgated thereunder, as the foregoing may be
in
effect from time to time as well as provisions of applicable state
laws.
REMIC
III Remittance Rate: With
respect to REMIC III Regular Interest LTII-P, a per annum rate equal to the
Uncertificated REMIC II Remittance Rate on REMIC II Regular Interest LTI-P.
With
respect to REMIC III Regular Interest LTII-AA, REMIC III Regular Interest
LTII-A, and REMIC III Regular Interest LTII-ZZ, a per annum rate (but not less
than zero) equal to the weighted average of: (x) with respect to REMIC II
Regular Interest LTI-A, the Uncertificated REMIC II Remittance Rate for such
REMIC II Regular Interest for each such Distribution Date, and (y) with respect
to REMIC II Regular Interest LTI-AIO for each Distribution Date listed below,
the rates listed below:
Distribution
Date
|
REMIC
2 Regular Interests
|
Rate
|
1-12
|
LTI-AIO
|
(a)
Uncertificated REMIC II Remittance Rate over (b) 3.20%
|
13
and thereafter
|
LTI-AIO
|
Uncertificated
REMIC II Remittance Rate
|
With
respect to REMIC III Regular Interest LTII-AIO, (i) for the first twelve
distribution dates, 3.20% and (ii) thereafter, 0.00%.
With
respect to REMIC III Regular Interest LTII-IO, 100% of the amounts distributed
on REMIC II Regular Interest LTI-IO.
REMIC
Regular Interest:
A REMIC
I Regular Interest, REMIC II Regular Interest or REMIC III Regular
Interest.
REMIC
Remittance Rate:
The
REMIC I Remittance Rate, REMIC II Remittance Rate or REMIC III Remittance
Rate.
Remittance
Period:
For any
Distribution Date, the period commencing on the second day of the month
preceding the month in which the Distribution Date occurs and ending on the
first day of the month in which the Distribution Date occurs.
REO
Property:
A
Mortgaged Property acquired by the Trust Fund through foreclosure or
deed-in-lieu of foreclosure in connection with a defaulted Mortgage
Loan.
Request
for Release:
The
Request for Release submitted by the Servicer to the Trustee, substantially
in
the form of Exhibits M and N, as appropriate.
Required
Insurance Policy:
For any
Mortgage Loan, any insurance policy that is required to be maintained from
time
to time under this Agreement, including, for any Covered Mortgage Loan, the
Pool
Policy.
Residual
Certificates:
As
specified in the Preliminary Statement.
Responsible
Officer:
When
used with respect to the Trustee or the Supplemental Interest Trust Trustee,
any
Vice President (however denominated), any Assistant Vice President, any
Assistant Secretary, any Assistant Treasurer, any Trust Officer or any other
officer of the Trustee or the Supplemental Interest Trust Trustee, customarily
performing functions similar to those performed by any of the above designated
officers who at such time shall be officers to whom, with respect to a
particular matter, the matter is referred because of the officer’s knowledge of
and familiarity with the particular subject and who has direct responsibility
for the administration of this Agreement.
S&P:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. If S&P is designated as a Rating Agency in the Preliminary Statement,
for purposes of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage
Surveillance Monitoring, or any other address that S&P furnishes to the
Depositor and the Servicer.
Scheduled
Payment:
The
scheduled monthly payment due on a Mortgage Loan allocable to principal and/or
interest on the Mortgage Loan that, unless otherwise specified herein, shall
give effect to any related Debt Service Reduction and any Deficient Valuation
that affects the amount of the monthly payment due on the Mortgage
Loan.
Securities
Act:
The
Securities Act of 1933, as amended.
Seller:
IndyMac
Bank, F.S.B., a federal savings bank, and its successors and assigns, in its
capacity as seller of the Mortgage Loans to the Depositor.
Servicer:
IndyMac
Bank, F.S.B., a federal savings bank, and its successors and assigns, in its
capacity as servicer under this Agreement.
Servicer
Advance Date:
As to
any Distribution Date, 12:30 p.m. (Pacific time) on the Business Day preceding
the Distribution Date.
Servicing
Advances:
All
customary, reasonable, and necessary “out of pocket” costs and expenses incurred
in the performance by the Servicer of its servicing obligations, including
the
cost of (i)(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 and (d) compliance with the
obligations under Section 3.10; and (ii) reasonable compensation to the Servicer
or its affiliates for acting as broker in connection with the sale of foreclosed
Mortgaged Properties and for performing certain default management and other
similar services (including appraisal services) in connection with the servicing
of defaulted Mortgage Loans. For purposes of clause (ii), only costs and
expenses incurred in connection with the performance of activities generally
considered to be outside the scope of customary servicing or servicing duties
shall be treated as Servicing Advances. The Servicer shall not be required
to
make any Nonrecoverable Servicing Advance in respect of a Mortgage Loan or
REO
Property.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time, or those Servicing Criteria otherwise mutually agreed
to by IndyMac and the applicable Servicer in response to evolving
interpretations of Regulation AB and incorporated into a revised Exhibit
R.
Servicing
Fee:
As to
each Mortgage Loan and any Distribution Date, one month’s interest at the
related Servicing Fee Rate on the Stated Principal Balance of the Mortgage
Loan
as of the Due Date in the prior calendar month or, in the event of any payment
of interest that accompanies a Principal Prepayment in Full made by the
Mortgagor, interest at the Servicing Fee Rate on the Stated Principal Balance
of
the Mortgage Loan for the period covered by the payment of interest, subject
to
reduction as provided in Section 3.15.
Servicing
Fee Rate:
For
each Mortgage Loan, 0.50% 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 and the Certificate Insurer
by the Servicer on the Closing Date pursuant to this Agreement, as the list
may
from time to time be amended.
Servicer
Remittance Amount: For
any
Distribution Date, is the sum of (i) all scheduled installments of interest
(net
of the related Servicing Fees) and principal due on the Due Date on the Mortgage
Loans in the related Remittance Period and received by the related Determination
Date, together with any related Advances; (ii) all Insurance Proceeds (including
those received with respect to the Pool Policy and not reimbursable to the
Seller pursuant to Section 2.03(c), but excluding those included in Liquidation
Proceeds), Liquidation Proceeds and Subsequent Recoveries received during the
preceding calendar month (in each case, net of unreimbursed expenses incurred
in
connection with a liquidation or foreclosure and net of the related Excess
Proceeds), (iii) any premium amounts reimbursed by the Pool Insurer and (iii)
all partial or full Principal Prepayments on the Mortgage Loans received during
the related Prepayment Period together with all Compensating Interest on those
Mortgage Loans and interest paid by the Mortgagors (other than Prepayment
Interest Excess); minus (iv) amounts in reimbursement for Advances and Servicing
Advances previously made with respect to the Mortgage Loans, and other expenses
reimbursable to the Servicer with respect to the Mortgage Loans pursuant to
this
Agreement.
Servicing
Standard:
That
degree of skill and care exercised by the Servicer with respect to mortgage
loans comparable to the Mortgage Loans serviced by the Servicer for itself
or
others, including loans subject to a pool policy similar to the Pool
Policy.
Startup
Day:
The
Closing Date.
Stated
Principal Balance:
As to
any Mortgage Loan and any date of determination, the unpaid principal balance
of
such Mortgage Loan as of the immediately preceding Due Date (or such Due Date
if
the date of determination is a Due Date), as specified in the amortization
schedule for such Due Date (before any adjustment to such amortization schedule
by reason of any moratorium or similar waiver or grace period) after giving
effect to the sum of: (i) the payment of principal due on such Due Date and
irrespective of any delinquency in payment by the related Mortgagor, (ii) any
Liquidation Proceeds allocable to principal received in the prior calendar
month
with respect to such Mortgage Loan and (iii) any Principal Prepayments received
through the last day of the Prepayment Period that includes such Due Date with
respect to such Mortgage Loan. The Stated Principal Balance as to any Mortgage
Loan and any date on or following the date on which such Mortgage Loan is a
Liquidated Mortgage Loan or Charged-off Mortgage Loan will be zero.
Subordinated
Certificates:
As
specified in the Preliminary Statement.
Subsequent
Recoveries:
As to
any Distribution Date, with respect to a Liquidated Mortgage Loan that resulted
in a Realized Loss in a prior calendar month, unexpected amounts received by
the
Servicer (net of any related expenses permitted to be reimbursed pursuant to
Section 3.09) specifically related to such Liquidated Mortgage
Loan.
Substitute
Mortgage Loan:
A
Mortgage Loan substituted by the Seller for a Deleted Mortgage Loan that must,
on the date of substitution, as confirmed in a Request for Release,
substantially in the form of Exhibit M, (i) have a Stated Principal Balance,
after deduction of the principal portion of the Scheduled Payment due in the
month of substitution, not in excess of, and not more than 10% less than, the
Stated Principal Balance of the Deleted Mortgage Loan; (ii) be accruing interest
at a rate no lower than and not more than 1% per annum higher than, that of
the
Deleted Mortgage Loan; (iii) have a Loan-to-Value Ratio no higher than that
of
the Deleted Mortgage Loan; (iv) have a remaining term to maturity no greater
than (and not more than one year less than that of) the Deleted Mortgage Loan;
(v) not be a cooperative loan and (vi) comply with each representation and
warranty in Section 2.03.
Substitution
Adjustment Amount:
As
defined in Section 2.03.
Supplemental
Interest Trust:
The
corpus of a trust created pursuant to Section 4.05 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Interest Rate
Swap Agreement, the Class IO Interest and the right to receive payments in
respect of the Class IO Distribution Amount. For the avoidance of doubt, the
Supplemental Interest Trust does not constitute a part of the Trust
Fund.
Supplemental
Interest Trust Trustee:
The
trustee on behalf of the Supplemental Interest Trust. Initially, the
Supplemental Interest Trust Trustee shall be the Trustee.
Swap
Expense Fee Rate:
For any
Distribution Date, a fraction expressed as a percentage, (i) the numerator
of
which is equal to the product of twelve multiplied by any Net Swap Payment
and
Swap Termination Payment (to the extent not paid by the Supplemental Interest
Trust Trustee from any upfront payment received pursuant to any replacement
interest rate swap agreement that may be entered into by the Supplemental
Interest Trust Trustee and only if such Swap Termination Payment was not due
to
a Swap Provider Trigger Event with respect to the Swap Provider) made to the
Swap Provider and (ii) the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans as of the first day of the related
Remittance Period, adjusted to reflect unscheduled principal payments made
thereafter that were included in the Principal Distribution Amount on the
immediately preceding Distribution Date.
Swap
LIBOR:
One-Month LIBOR as determined pursuant to the Interest Rate Swap
Agreement.
Swap
Provider:
The
party to the Interest Rate Swap Agreement either (a) entitled to receive
payments from the Supplemental Interest Trust or (b) required to make payments
to the Supplemental Interest Trust, in either case pursuant to the terms of
the
Interest Rate Swap Agreement, and any successor in interest or assign.
Initially, the Swap Provider shall be Bear Xxxxxxx Financial Products,
Inc.
Swap
Provider Trigger Event:
A Swap
Provider Trigger Event shall have occurred if any of an Event of Default (under
the Interest Rate Swap Agreement) with respect to which the Swap Provider is
a
Defaulting Party, a Termination Event (under the Interest Rate Swap Agreement)
with respect to which the Swap Provider is the sole Affected Party or an
Additional Termination Event (under the Interest Rate Swap Agreement) with
respect to which the Swap Provider is the sole Affected Party has
occurred.
Swap
Termination Payment:
Upon
the designation of an “Early Termination Date” as defined in the Interest Rate
Swap Agreement, the payment to be made by the Supplemental Interest Trust to
the
Swap Provider, or by the Swap Provider to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Interest Rate Swap
Agreement.
Telerate
Page 3750:
The
display page currently so designated by Moneyline Telerate Information Services,
Inc. (or on any page replacing that page on that service for the purpose of
displaying London inter-bank offered rates of major banks).
Termination
Price:
As
defined in the Interest Rate Swap Agreement.
Total
Monthly Excess Spread:
For any
Distribution Date, Available Funds for such Distribution Date minus amounts
paid
on such Distribution Date pursuant to Section 4.02(A) through (D).
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
Trust: The
trust
created under this Agreement.
Trust
Fund:
The
corpus of the Trust consisting of REMIC I, REMIC II, REMIC III, REMIC IV and
the
Excess Reserve Fund Account.
Trust
REMIC:
Any of
REMIC I, REMIC II, REMIC III or REMIC IV.
Trustee:
Deutsche Bank National Trust Company and its successors and, if a successor
trustee is appointed under this Agreement, such successor.
Trustee
Fee:
As
to
each Mortgage Loan and any Distribution Date, one month’s interest at the
Trustee Fee Rate on the Stated Principal Balance of the Mortgage Loan as of
the
Due Date occurring in the preceding calendar month (or, whenever a payment
of
interest accompanies a Principal Prepayment in Full made by the Mortgagor during
the preceding calendar month, interest at the Trustee Fee Rate on the Stated
Principal Balance of the Mortgage Loan for the period covered by the payment
of
interest).
Trustee
Fee Rate:
0.0075%
per annum.
Uncertificated
Balance:
The
amount of any REMIC Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Balance of each REMIC
Regular Interest shall equal the amount set forth in the Preliminary Statement
hereto as its initial uncertificated balance. On each Distribution Date, the
Uncertificated Balance of each REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 4.09 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.09. The Uncertificated Balance of REMIC III
Regular Interest LTII-ZZ shall be increased by interest deferrals as provided
in
Section 4.09. The Uncertificated Balance of each REMIC Regular Interest shall
never be less than zero.
Uncertificated
Interest:
With
respect to any REMIC Regular Interest for any Distribution Date, one month’s
interest at the REMIC Remittance Rate applicable to such REMIC Regular Interest
for such Distribution Date, accrued on the Uncertificated Balance or
Uncertificated Notional Amount thereof immediately prior to such Distribution
Date. Uncertificated Interest in respect of any REMIC Regular Interest shall
accrue on the basis of a 360-day year consisting of twelve 30-day months.
Uncertificated Interest with respect to each Distribution Date, as to any REMIC
Regular Interest, shall be reduced by an amount equal to the sum of (a) the
aggregate Prepayment Interest Shortfalls, if any, for such Distribution Date
to
the extent not covered pursuant to Section 3.15 and (b) the aggregate amount
of
any Relief Act Interest Shortfalls, if any, in each case in the manner and
priority described below.
In
addition, Uncertificated Interest with respect to each Distribution Date, as
to
any REMIC Regular Interest, shall be reduced by Realized Losses, if any,
allocated to such REMIC Regular Interest as described above and pursuant to
Section 4.04.
Uncertificated
Notional Amount:
With
respect to REMIC II Regular Interest LTI-IO and each Distribution Date listed
below, the aggregate Uncertificated Balance of the REMIC I Regular Interests
ending with the designation “A” listed below:
Distribution
Date
|
REMIC
I Regular Interests
|
1
|
I-1-A
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through X-00-X
|
0
|
X-0-X
xxxxxxx X-00-X
|
0
|
X-0-X
through I-84-A
|
10
|
I-10-A
through I-84-A
|
11
|
I-11-A
through I-84-A
|
12
|
I-12-A
through I-84-A
|
13
|
I-13-A
through I-84-A
|
14
|
I-14-A
through I-84-A
|
15
|
I-15-A
through I-84-A
|
16
|
I-16-A
through I-84-A
|
17
|
I-17-A
through I-84-A
|
18
|
I-18-A
through I-84-A
|
19
|
I-19-A
through I-84-A
|
20
|
I-20-A
through I-84-A
|
21
|
I-21-A
through I-84-A
|
22
|
I-22-A
through I-84-A
|
23
|
I-23-A
through I-84-A
|
24
|
I-24-A
through I-84-A
|
25
|
I-25-A
through I-84-A
|
26
|
I-26-A
through I-84-A
|
27
|
I-27-A
through I-84-A
|
28
|
I-28-A
through I-84-A
|
29
|
I-29-A
through I-84-A
|
30
|
I-30-A
through I-84-A
|
31
|
I-31-A
through I-84-A
|
32
|
I-32-A
through I-84-A
|
33
|
I-33-A
through I-84-A
|
34
|
I-34-A
through I-84-A
|
35
|
I-35-A
through I-84-A
|
36
|
I-36-A
through I-84-A
|
37
|
I-37-A
through I-84-A
|
38
|
I-38-A
through I-84-A
|
39
|
I-39-A
through I-84-A
|
40
|
I-40-A
through I-84-A
|
41
|
I-41-A
through I-84-A
|
42
|
I-42-A
through I-84-A
|
43
|
I-43-A
through I-84-A
|
44
|
I-44-A
through I-84-A
|
45
|
I-45-A
through I-84-A
|
46
|
I-46-A
through I-84-A
|
47
|
I-47-A
through I-84-A
|
48
|
I-48-A
through I-84-A
|
49
|
I-49-A
through I-84-A
|
50
|
I-50-A
through I-84-A
|
51
|
I-51-A
through I-84-A
|
52
|
I-52-A
through I-84-A
|
53
|
I-53-A
through I-84-A
|
54
|
I-54-A
through I-84-A
|
55
|
I-55-A
through I-84-A
|
56
|
I-56-A
through I-84-A
|
57
|
I-57-A
through I-84-A
|
58
|
I-58-A
through I-84-A
|
59
|
I-59-A
through I-84-A
|
60
|
I-60-A
through I-84-A
|
61
|
I-61-A
through I-84-A
|
62
|
I-62-A
through I-84-A
|
63
|
I-63-A
through I-84-A
|
64
|
I-64-A
through I-84-A
|
65
|
I-65-A
through I-84-A
|
66
|
I-66-A
through I-84-A
|
67
|
I-67-A
through I-84-A
|
68
|
I-68-A
through I-84-A
|
69
|
I-69-A
through I-84-A
|
70
|
I-70-A
through I-84-A
|
71
|
I-71-A
through I-84-A
|
72
|
I-72-A
through I-84-A
|
73
|
I-73-A
through I-84-A
|
74
|
I-74-A
through I-84-A
|
75
|
I-75-A
through I-84-A
|
76
|
I-76-A
through I-84-A
|
77
|
I-77-A
through I-84-A
|
78
|
I-78-A
through I-84-A
|
79
|
I-79-A
through I-84-A
|
80
|
I-80-A
through I-84-A
|
81
|
I-81-A
through I-84-A
|
82
|
I-82-A
through I-84-A
|
83
|
I-83-A
and I-84-A
|
84
|
I-84-A
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC III Regular Interest
LTI-IO.
Underwriter’s
Exemption:
Prohibited Transaction Exemption 2002-41, 67 Fed.Reg. 54487 (2002) (or any
successor thereto), or any substantially similar administrative exemption
granted by the U.S. Department of Labor.
United
States Person or U.S. Person: Any
of
(i) A
citizen
or resident of the United States; (ii) a corporation (or entity treated as
a
corporation for tax purposes) created or organized in the United States or
under
the laws of the United States or of any state thereof, including, for this
purpose, the District of Columbia; (iii) a partnership (or entity treated as
a
partnership for tax purposes) organized in the United States or under the laws
of the United States or of any state thereof, including, for this purpose,
the
District of Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; or (v) a trust, if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more U.S. Persons have authority to
control all substantial decisions of the trust. Notwithstanding the last clause
of the preceding sentence, to the extent provided in Treasury regulations,
certain trusts in existence on September 20, 1996, and treated as U.S. Persons
before that date, may elect to continue to be U.S. Persons.
Unpaid
Interest Amounts:
As of
any Distribution Date and any Class of Certificates, the sum of (a) the excess
of (i) the sum of the Accrued Certificate Interest Distribution Amount for
the
Distribution Date over (ii) the amount in respect of such Accrued Certificate
Interest actually distributed from Available Funds on such Distribution Date,
(b) the excess of (i) any portion of the Accrued Certificate Interest
Distribution Amount from prior Distribution Dates remaining unpaid over (ii)
the
amount in respect of interest on the Class of Certificates actually distributed
on the preceding Distribution Date and (c) interest on the excess described
in
clause (b) for the related Interest Accrual Period at the applicable
Pass-Through Rate (to the extent permitted by applicable law).
Voting
Rights:
The
portion of the voting rights of all of the Certificates that is allocated to
any
Certificate. As of any date of determination, (a) 1% of all Voting Rights shall
be allocated to any Class
R
Certificates, (b) 1%
of all
Voting Rights shall be allocated to any Class A-IO Certificates and (c) the
remaining Voting Rights shall be allocated among Holders of the remaining
Classes of Certificates in proportion to the Certificate Balances of their
respective Certificates on the date (the Voting Rights to be allocated among
the
holders of Certificates of each Class in accordance with their respective
Percentage Interests); provided that, except as set forth in Section 10.01,
any
Certificate registered in the name of the Seller or its Affiliates shall be
deemed not to be outstanding and the Voting Rights to which it is entitled
shall
not be taken into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent has been obtained.
Notwithstanding the foregoing, the Voting Rights of the Offered Certificates
shall be held by the Certificate Insurer (so long as no Certificate Insurer
Default exists) and the Holders of the Offered Certificates may not exercise
such Voting Rights without the prior written consent of the Certificate
Insurer.
Section 1.02 |
Rules
of Construction.
|
Except
as
otherwise expressly provided in this Agreement or unless the context clearly
requires otherwise:
(a) References
to designated articles, sections, subsections, exhibits, and other subdivisions
of this Agreement, such as “Section 6.12 (a),” refer to the designated article,
section, subsection, exhibit, or other subdivision of this Agreement as a whole
and to all subdivisions of the designated article, section, subsection, exhibit,
or other subdivision. The words “herein,” “hereof,” “hereto,” “hereunder,” and
other words of similar import refer to this Agreement as a whole and not to
any
particular article, section, exhibit, or other subdivision of this
Agreement.
(b) Any
term
that relates to a document or a statute, rule, or regulation includes any
amendments, modifications, supplements, or any other changes that may have
occurred since the document, statute, rule, or regulation came into being,
including changes that occur after the date of this Agreement.
(c) Any
party
may execute any of the requirements under this Agreement either directly or
through others, and the right to cause something to be done rather than doing
it
directly shall be implicit in every requirement under this Agreement. Unless
a
provision is restricted as to time or limited as to frequency, all provisions
under this Agreement are implicitly available and things may happen from time
to
time.
(d) The
term
“including” and all its variations mean “including but not limited to.” Except
when used in conjunction with the word “either,” the word “or” is always used
inclusively (for example, the phrase “A or B” means “A or B or both,” not
“either A or B but not both”).
(e) A
reference to “a [thing]” or “any [of a thing]” does not imply the existence or
occurrence of the thing referred to even though not followed by “if any,” and
“any [of a thing]” is any of it. A reference to the plural of anything as to
which there could be either one or more than one does not imply the existence
of
more than one (for instance, the phrase “the obligors on a note” means “the
obligor or obligors on a note”). “Until [something occurs]” does not imply that
it must occur, and will not be modified by the word “unless.” The word “due” and
the word “payable” are each used in the sense that the stated time for payment
has passed. The word “accrued” is used in its accounting sense, i.e., an amount
paid is no longer accrued. In the calculation of amounts of things, differences
and sums may generally result in negative numbers, but when the calculation
of
the excess of one thing over another results in zero or a negative number,
the
calculation is disregarded and an “excess” does not exist. Portions of things
may be expressed as fractions or percentages interchangeably.
(f) All
accounting terms used in an accounting context and not otherwise defined, and
accounting terms partly defined in this Agreement, to the extent not completely
defined, shall be construed in accordance with generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Agreement shall
control. Capitalized terms used in this Agreement without definition that are
defined in the Uniform Commercial Code are used in this Agreement as defined
in
the Uniform Commercial Code.
(g) In
the
computation of a period of time from a specified date to a later specified
date
or an open-ended period, the words “from” and “beginning” mean “from and
including,” the word “after” means “from but excluding,” the words “to” and
“until” mean “to but excluding,” and the word “through” means “to and
including.” Likewise, in setting deadlines or other periods, “by” means “on or
before.” The words “preceding,” “following,” and words of similar import, mean
immediately preceding or following. References to a month or a year refer to
calendar months and calendar years.
(h) Any
reference to the enforceability of any agreement against a party means that
it
is enforceable, subject as to enforcement against the party, to applicable
bankruptcy, insolvency, reorganization, and other similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles.
ARTICLE
II
Conveyance
of Mortgage Loans; Representations
and Warranties
Section 2.01 |
Conveyance
of Mortgage Loans.
|
(a) The
Seller, concurrently with the execution and delivery of this Agreement, hereby
transfers to the Depositor, without recourse, all the interest of the Seller
in
each Mortgage Loan, including all interest and principal due to the Seller
on
each Mortgage Loan after the applicable Cut-off Date and all interest and
principal payments on each Mortgage Loan received by the applicable Cut-off
Date
for installments of interest and principal due after the applicable Cut-off
Date
but not including payments of principal and interest due on each Mortgage Loan
by the applicable Cut-off Date. By the Closing Date, the Seller shall deliver
to
the Depositor or, at the Depositor’s direction, to the Trustee or other designee
of the Depositor, the Mortgage File for each Mortgage Loan listed in the
Mortgage Loan Schedule as of the Closing Date (except that, in the case of
Mortgage Loans that are Delayed Delivery Mortgage Loans, such delivery may
take
place within five (5) Business Days of the Closing Date). The delivery of the
Mortgage Files shall be made against payment by the Depositor of the purchase
price, previously agreed to by the Seller and Depositor, for the Mortgage Loans.
(b) The
Depositor, concurrently with the execution and delivery of this Agreement,
hereby transfers to the Trustee for the benefit of the Certificateholders 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.
(c) The
Depositor shall have delivered the Mortgage Files to the Trustee (i)for
at
least 90% of the Mortgage Loans, not later than the Closing Date; and (ii)
for
the remaining 10% of the Mortgage Loans, not later than five (5) Business Days
following the Closing Date.
To
the
extent that the Seller is in possession of any Mortgage File for any Delayed
Delivery Mortgage Loan, until delivery of the Mortgage File to the Trustee,
the
Seller shall hold the files as Servicer, as agent and in trust for the
Trustee.
The
Depositor hereby directs the Supplemental Interest Trust Trustee to execute
the
Interest Rate Swap Agreement on behalf of Party B (as defined therein) and
to
perform the obligations of Party B thereunder on the Closing Date and thereafter
on behalf of the Holders of the Certificates. The Seller, the Servicer, the
Depositor and the Certificateholders by acceptance of their Certificates
acknowledge and agree that the Supplemental Interest Trust Trustee shall execute
and deliver the Interest Rate Swap Agreement on behalf of Party B (as defined
therein) and to perform the obligations of Party B thereunder and shall do
so
solely in its capacity as Supplemental Interest Trust Trustee and not in its
individual capacity.
(d) In
connection with the transfer and assignment of each Mortgage Loan, the Depositor
has delivered (or in the case of Delayed Delivery Mortgage Loans, will deliver
within the time period specified above) to the Trustee for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The
original Mortgage Note, endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of _______________ ______________without
recourse,” with all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing the Mortgage Note (each
endorsement being sufficient to transfer all interest of the party so endorsing,
as noteholder or assignee thereof, in that Mortgage Note) or a lost note
affidavit for any Lost Mortgage Note from the Seller stating that the original
Mortgage Note was lost or destroyed, together with a copy of the Mortgage
Note.
(ii) Except
as
provided below, for each Mortgage Loan that is not a MERS Mortgage Loan, the
original recorded Mortgage or a copy of such Mortgage certified by the Seller
as
being a true and complete copy of the Mortgage (or, in the case of a Mortgage
for which the related Mortgaged Property is located in the Commonwealth of
Puerto Rico, a true copy of the Mortgage certified as such by an applicable
notary) and in the case of each MERS Mortgage Loan, the original Mortgage,
noting the presence of the MIN of the Mortgage Loans and either language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM
Loan or if the Mortgage Loan was not a MOM Loan at origination, the original
Mortgage and the assignment thereof to MERS, with evidence of recording
indicated thereon, or a copy of the Mortgage certified by the public recording
office in which such Mortgage has been recorded.
(iii) In
the
case of each Mortgage Loan that is not a MERS Mortgage Loan, a duly executed
assignment of the Mortgage (which may be included in a blanket assignment or
assignments), together with, except as provided below, all interim recorded
assignments of such mortgage (each such assignment, when duly and validly
completed, to be in recordable form and sufficient to effect the assignment
of
and transfer to the assignee thereof, under the Mortgage to which the assignment
relates); provided, that if the related Mortgage has not been returned from
the
applicable public recording office, such assignment of the Mortgage may exclude
the information to be provided by the recording office; provided, further,
that
such assignment of Mortgage need not be delivered in the case of a Mortgage
for
which the related Mortgaged Property is located in the Commonwealth of Puerto
Rico.
(iv) The
original or copies of each assumption, modification, written assurance, or
substitution agreement.
(v) Except
as
provided below, the original or duplicate original lender’s title policy and all
its riders.
In
addition, in connection with the assignment of any MERS Mortgage Loan, the
Seller agrees that it will cause, at the Seller’s expense, the MERS® System to
indicate that the Mortgage Loans sold by the Seller to the Depositor have been
assigned by the Seller to the Trustee in accordance with this Agreement for
the
benefit of the Certificateholders by including (or deleting, in the case of
Mortgage Loans which are repurchased in accordance with this Agreement) in
such
computer files the information required by the MERS® System to identify the
series of the Certificates issued in connection with such Mortgage Loans. The
Seller further agrees that it will not, and will not permit the Servicer to,
and
the Servicer agrees that it will not, alter the information referenced in this
paragraph with respect to any Mortgage Loan sold by the Seller to the Depositor
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
In
the
event that in connection with any Mortgage Loan that is not a MERS Mortgage
Loan
the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim
recorded assignments or (c) the lender’s title policy (together with all riders
thereto) satisfying the requirements of clause (ii), (iii) or (v) above,
respectively, concurrently with the execution and delivery hereof because such
document or documents have not been returned from the applicable public
recording office in the case of clause (ii) or (iii) above, or because the
title
policy has not been delivered to either the Servicer or the Depositor by the
applicable title insurer in the case of clause (v) above, the Depositor shall
promptly deliver to the Trustee, in the case of clause (ii) or (iii) above,
such
original Mortgage or such interim assignment, as the case may be, with evidence
of recording indicated thereon upon receipt thereof from the public recording
office, or a copy thereof, certified, if appropriate, by the relevant recording
office, but in no event shall any such delivery of the original Mortgage and
each such interim assignment or a copy thereof, certified, if appropriate,
by
the relevant recording office, be made later than one year following the Closing
Date, or, in the case of clause (v) above, no later than 120 days following
the
Closing Date; provided, however, that in the event the Depositor is unable
to
deliver by such date each Mortgage and each such interim assignment by reason
of
the fact that any such documents have not been returned by the appropriate
recording office, or, in the case of each such interim assignment, because
the
related Mortgage has not been returned by the appropriate recording office,
the
Depositor shall deliver such documents to the Trustee as promptly as possible
upon receipt thereof and, in any event, within 720 days following the Closing
Date.
The
Depositor shall forward to the Trustee (a) from time to time additional original
documents evidencing an assumption or modification of a Mortgage Loan and (b)
any other documents required to be delivered by the Depositor or the Servicer
to
the Trustee. If the original Mortgage is not delivered and in connection with
the payment in full of the related Mortgage Loan the public recording office
requires the presentation of a “lost instruments affidavit and indemnity” or any
equivalent document, because only a copy of the Mortgage can be delivered with
the instrument of satisfaction or reconveyance, the Servicer shall execute
and
deliver the required document to the public recording office. If a public
recording office retains the original recorded Mortgage or if a Mortgage is
lost
after recordation in a public recording office, the Seller shall deliver to
the
Trustee a copy of the Mortgage certified by the public recording office to
be a
true and complete copy of the original recorded Mortgage.
As
promptly as practicable after any transfer of a Mortgage Loan under this
Agreement, and in any event within thirty days after the transfer, the Trustee
shall (i) affix the Trustee’s name to each assignment of Mortgage, as its
assignee, and (ii) cause to be delivered for recording in the appropriate public
office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the assignments of Mortgage shall not
be
required to be submitted for recording (except with respect to any Mortgage
Loan
located in Maryland) unless such failure to record would result in a withdrawal
or a downgrading by any Rating Agency of the rating on any Class of Certificates
(without regard to the Policy); provided, however, that each assignment of
Mortgage shall be submitted for recording by the Seller (at the direction of
the
Servicer) in the manner described above, at no expense to the Trust Fund or
the
Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders
of Certificates entitled to at least 25% of the Voting Rights or by the NIM
Insurer, if any, (ii) [reserved], (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller, (iv) the occurrence of a
servicing transfer as described in Section 7.02 hereof and (v) if the Seller
is
not the Servicer and with respect to any one assignment or Mortgage, the
occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage. Notwithstanding the foregoing, if the Servicer
is
unable to pay the cost of recording the assignments of Mortgage, such expense
shall be paid by the Trustee and shall be reimbursable out of the Distribution
Account.
If
any
Mortgage Loans have been prepaid in full as of the Closing Date, the Depositor,
in lieu of delivering the above documents to the Trustee, will deposit in the
Certificate Account the portion of the prepayment that is required to be
deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding
anything to the contrary in this Agreement, within five (5) Business Days after
the Closing Date, the Depositor shall either:
(ii) deliver
to the Trustee the Mortgage File as required pursuant to this Section 2.01
for
each Delayed Delivery Mortgage Loan; or
(iii) (A)
repurchase the Delayed Delivery Mortgage Loan or (B) substitute the Delayed
Delivery Mortgage Loan for a Substitute Mortgage Loan, which repurchase or
substitution shall be accomplished in the manner and subject to the conditions
in Section 2.03.
The
Trustee shall, in accordance with Section 2.02, send a Delayed Delivery
Certification substantially in the form of Exhibit G-2 (with any applicable
exceptions noted thereon) for all Delayed Delivery Mortgage Loans delivered
within 30 days of receipt of the related Mortgage Files. The Trustee will
promptly send a copy of such Delayed Delivery Certification to each Rating
Agency and the Certificate Insurer. If the Seller fails to deliver a Mortgage
File for any Delayed Delivery Mortgage Loan within the period specified herein,
the Seller shall use its best reasonable efforts to effect a substitution,
rather than a repurchase of, any Deleted Mortgage Loan. The cure period provided
for in Section 2.02 or in Section 2.03 shall not apply to the initial delivery
of the Mortgage File for such Delayed Delivery Mortgage Loan, but rather the
Seller shall have five (5) Business Days to cure such failure to deliver. At
the
end of such period, the Trustee shall send a Delayed Delivery Certification
for
the Delayed Delivery Mortgage Loans delivered during such period in accordance
with the provisions of Section 2.02.
The
Seller agrees to treat the transfer of the Mortgage Loans to the Depositor
as a
sale for all tax, accounting, and regulatory purposes.
It
is
agreed and understood by the parties hereto that it is not intended that any
Mortgage Loan be included in the Trust Fund that is a “High-Cost Home Loan”
(or
any
other similarly designated loan)
as
defined in the New Jersey Home Ownership Act effective November 27, 2003, The
Home Loan Protection Act of New Mexico effective January 1, 2004, The
Massachusetts Predatory Home Loan Practices Act effective November 7, 2004
or
The Indiana Home Loan Practices Act effective January 1, 2005.
Section 2.02 |
Acceptance
by the Trustee of the Mortgage
Loans.
|
The
Trustee acknowledges receipt of the documents identified in the Initial
Certification in the form of Exhibit G-1 and declares that it holds and will
hold such documents and the other documents delivered to it constituting the
Mortgage Files for the Mortgage Loans, and that it holds or will hold such
other
assets as are included in the Trust Fund, in trust for the exclusive use and
benefit of all present and future Certificateholders and the Certificate
Insurer. 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 and the Certificate Insurer.
The
Trustee agrees to execute and deliver on the Closing Date to the Depositor,
the
Servicer, the Certificate Insurer and the Seller an Initial Certification in
the
form of Exhibit G-1. Based
on
its review and examination, and only as to the documents identified in the
Initial Certification, the Trustee acknowledges that the documents appear
regular on their face and relate to the Mortgage Loans. The
Trustee shall be under no duty to inspect, review, or examine said documents,
instruments, certificates, or other papers to determine that the same are
genuine, enforceable, or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they are other
than what they purport to be on their face.
By
the
thirtieth day after the Closing Date (or if that day is not a Business Day,
the
succeeding Business Day), the Trustee shall deliver to the Depositor, the
Servicer and the Seller (and a copy to each Rating Agency and the Certificate
Insurer) a Delayed Delivery Certification with respect to the Mortgage Loans,
substantially in the form of Exhibit G-2, with any applicable exceptions noted
thereon.
Not
later
than ninety (90) days after the Closing Date, the Trustee shall deliver to
the
Depositor, the Servicer, the Certificate Insurer and the Seller a Final
Certification in the form of Exhibit H, with any applicable exceptions noted
thereon.
If,
in
the course of its review, the Trustee finds any document constituting a part
of
a Mortgage File that does not meet the requirements of Section 2.01, the Trustee
shall list such as an exception in the Final Certification. The Trustee shall
not make any determination as to whether (i) any endorsement is sufficient
to
transfer all interest of the party so endorsing, as noteholder or assignee
thereof, in that Mortgage Note or (ii) any assignment is in recordable form
or
is sufficient to effect the assignment of and transfer to the assignee thereof
under the mortgage to which the assignment relates. The
Seller shall promptly correct any such defect within ninety (90) days from
the
date it was so notified of the defect and, with respect to any Mortgage Loan
for
which such defect is materially adverse to the Certificateholders or the
Certificate Insurer, if the Seller does not correct such defect within that
period, the Seller shall either (a) substitute for the related Mortgage Loan
a
Substitute Mortgage Loan, which substitution shall be accomplished pursuant
to
Section 2.03, or (b) purchase the Mortgage Loan at its Purchase Price from
the
Trustee within ninety (90) days from the date the Seller was notified of the
defect in writing.
If
a
substitution or purchase of a Mortgage Loan pursuant to this provision is
required because of a delay in delivery of any documents by the appropriate
recording office, or there is a dispute between either the Servicer or the
Seller and the Trustee over the location or status of the recorded document,
then the substitution or purchase shall occur within 270 days from the Closing
Date. In the event that the Servicer cannot provide a copy of such document
certified by the public recording office within such 270 day period, the
Servicer shall deliver to the Custodian, the Trustee and the Certificate
Insurer within such 270 day period, an Officer’s Certificate of the
Servicer which shall (A) identify the recorded document, (B) state that the
recorded document has not been delivered to the Custodian due solely to a delay
caused by the public recording office, (C) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, if known, and (D) specify the date the applicable
recorded document is expected to be delivered to the Custodian, and, upon
receipt of a copy of such document certified by the public recording office,
the
Servicer shall immediately deliver such document to the
Custodian , the Trustee and the Certificate Insurer. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month.
The
Purchase Price for any Mortgage Loan shall be deposited by the Seller in the
Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller
and
shall execute and deliver at the Seller’s request any instruments of transfer or
assignment prepared by the Seller, in each case without recourse, necessary
to
vest in the Seller, or a designee, the Trustee’s interest in any Mortgage Loan
released pursuant hereto.
If
pursuant to the foregoing provisions the Seller repurchases a Mortgage Loan
that
is a MERS Mortgage Loan, the Servicer shall either (i) cause MERS to execute
and
deliver an assignment of the Mortgage in recordable form to transfer the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller as
the beneficial holder of such Mortgage Loan.
The
Trustee shall retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of such other documents or instruments constituting
the
Mortgage File as come into the possession of the Servicer from time to
time.
The
obligation of the Seller to substitute for or to purchase any Mortgage Loan
that
does not meet the requirements of Section 2.01 shall constitute the sole remedy
respecting the defect available to the Trustee, the Depositor, and any
Certificateholder against the Seller.
Section 2.03 |
Representations,
Warranties, and Covenants of the
|
Seller
and the Servicer.
(a) IndyMac,
in its capacities as Seller and Servicer, hereby makes the representations
and
warranties in Schedule II, and by this reference incorporated herein, to the
Depositor, the Trustee, the Supplemental Interest Trust Trustee and the
Certificate Insurer, as of the Closing Date. The Servicer will fully furnish,
in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (i.e., favorable and unfavorable) on its
credit files for the related Mortgagor for each Mortgage Loan to Equifax,
Experian and Trans Union Credit Information Company on a monthly
basis.
(b) The
Seller, in its capacity as Seller, hereby makes the representations and
warranties in Schedule III, and by this reference incorporated herein, to the
Depositor, the Trustee, the Supplemental Interest Trust Trustee and the
Certificate Insurer, as of the Closing Date, or if so specified therein, as
of
the applicable Cut-off Date.
(c) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty made pursuant to Section 2.03(b) that materially and adversely affects
the interests of the Certificateholders or the Certificate Insurer in any
Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. A breach of the representation or warranty made
pursuant to clauses (cc), (dd), (hh), (ii), (kk), (ll) and (mm) of Schedule
III,
a breach of the covenant of the Servicer made pursuant to clause (a) above
or
the
fact
that any Covered Mortgage Loan is not eligible for coverage under the Pool
Policy (including, but not limited to, Covered Mortgage Loans for which coverage
was rescinded or a claim for payment under the Pool Policy was
denied)
will be
deemed to materially and adversely affect the interests of the
Certificateholders in the related Mortgage Loan. The Seller hereby covenants
that within ninety (90) days of the earlier of its discovery or its receipt
of
written notice from any party of a breach of any representation or warranty
made
pursuant to Section 2.03(b) or 2.03(d) that 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; (ii) repurchase the affected Mortgage Loan
or
Mortgage Loans from the Trustee at the Purchase Price in the manner stated
below; or (iii) with respect to a breach of the representation or warranty
made
pursuant to Section 2.03(d) and following the Distribution Date on which
the Cumulative Covered Loan Loss equals or exceeds10.50% of the Total Insured
Loan Amount (as defined under the Pool Policy), pay to the Trustee an
amount equal to the amount of the Loss as defined under the Pool Policy that
would otherwise have been paid by the Pool Insurer but for such breach (assuming
for this purpose that the Deductible (as defined under the Pool Policy) has
been
met); provided however that the Seller shall not be required to pay pursuant
to
this clause (iii) an amount, in the aggregate, in excess of 4.75% of the Total
Insured Loan Amount; and provided further that on any date on and after the
date on which the aggregate amounts paid by the Seller pursuant to this clause
(iii) and amounts paid by the Pool Insurer equals 4.75% of the Total Insured
Loan Amount, any additional amounts received from the Pool
Insurer shall be distributed to the Seller. Any substitution pursuant to
(i) above shall not be effected before (i) the delivery to the Trustee and
the
Certificate Insurer of the Opinion of Counsel, if required by Section 2.05,
a
Request for Release substantially in the form of Exhibit N and the Mortgage
File
for any Substitute Mortgage Loan and (ii) with respect to the substitution
of a
Covered Mortgage Loan, the Pool Insurer provides consent to such 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 and the Certificate
Insurer the Mortgage Note, the Mortgage, the related assignment of the Mortgage,
and any other documents and agreements required by Section 2.01, with the
Mortgage Note endorsed and the Mortgage assigned as required by Section
2.01. No
substitution is permitted to be made in any calendar month after the
Determination Date for the month. Scheduled
Payments due with respect to Substitute Mortgage Loans in the Remittance Period
of substitution shall not be part of the Trust Fund and will be retained by
the
Seller on the next Distribution Date. For
the
Remittance Period of substitution, distributions to Certificateholders will
include the monthly payment due on any Deleted Mortgage Loan for the Remittance
Period and thereafter the Seller shall be entitled to retain all amounts
received with respect to the Deleted Mortgage Loan.
The
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders and the Certificate Insurer to reflect the removal of the
Deleted Mortgage Loan and the substitution of the Substitute Mortgage Loans
and
the Servicer shall deliver the amended Mortgage Loan Schedule to the
Trustee. Upon
the
substitution, the Substitute Mortgage Loans shall be subject to this Agreement
in all respects, and the Seller shall be deemed to have made with respect to
the
Substitute Mortgage Loans, as of the date of substitution, the representations
and warranties made pursuant to Section 2.03(b) with respect to the Mortgage
Loan. Upon
any
substitution and the deposit to the Certificate Account of the amount required
to be deposited therein in connection with the substitution as described in
the
following paragraph, the Trustee shall release the Mortgage File held for the
benefit of the Certificateholders relating to the Deleted Mortgage Loan to
the
Seller and shall execute and deliver at the Seller’s direction such instruments
of transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest title in the Seller, or its designee, the
Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03.
For
any
month in which the Seller substitutes one or more Substitute Mortgage Loans
for
one or more Deleted Mortgage Loans, the Servicer will determine the amount
by
which the aggregate principal balance of all such Substitute Mortgage Loans
as
of the date of substitution is less than the aggregate Stated Principal Balance
of all the Deleted Mortgage Loans (after application of the scheduled principal
portion of the monthly payments due in the Remittance Period of substitution
and
any adjustments due to any costs or damages incurred by the Trust Fund in
connection with any violation of the Mortgage Loan of any predatory or abusive
lending law). The
amount of the shortage (the “Substitution
Adjustment Amount”)
plus,
if the
Seller is not the Servicer, the aggregate of any unreimbursed Advances and
Servicing Advances with respect to the Deleted Mortgage Loans, shall be
deposited into the Certificate Account by the Seller by the Distribution Account
Deposit Date for the Distribution Date in the month succeeding the calendar
month during which the related Mortgage Loan became required to be purchased
or
replaced hereunder.
If
the
Seller repurchases a Mortgage Loan, the Purchase Price therefor shall be
deposited in the Certificate Account pursuant to Section 3.06 by the
Distribution Account Deposit Date for the Distribution Date in the month
following the month during which the Seller became obligated hereunder to
repurchase or replace the Mortgage Loan and upon such deposit of the Purchase
Price, the delivery of the Opinion of Counsel required by Section 2.05 and
receipt of a Request for Release in the form of Exhibit N, the Trustee shall
release the related Mortgage File held for the benefit of the Certificateholders
to such Person, and the Trustee shall execute and deliver at such Person’s
direction such instruments of transfer or assignment prepared by such Person,
in
each case without recourse, as shall be necessary to transfer title from the
Trustee. The
obligation under this Agreement of any Person to cure, repurchase, or replace
any Mortgage Loan as to which a breach has occurred and is continuing shall
constitute the sole remedy against the Person respecting the breach available
to
Certificateholders, the Depositor, the Trustee or the Supplemental Interest
Trust Trustee on their behalf.
The
representations and warranties made pursuant to this Section 2.03 shall survive
delivery of the respective Mortgage Files to the Trustee for the benefit of
the
Certificateholders and the Certificate Insurer.
The
Seller assigns to the Depositor and the Depositor assigns to the Trustee all
rights the Seller might have under contracts with third parties relating to
early payment defaults on the Mortgage Loans (“EPD
Rights”)
and
the
Servicer assumes any related duties as part of it servicing obligations.
Consistent with the Servicing Standard, the Servicer shall attempt to enforce
the EPD rights. If the Servicer’s enforcement of the EPD Rights obligates the
Servicer to sell a Mortgage Loan to a third party, the Servicer shall repurchase
the Mortgage Loan at the Purchase Price and sell the Mortgage Loan to the third
party. The Servicer shall deposit into the Certificate Account all amounts
received in connection with the enforcement of EPD Rights, not exceeding the
Purchase Price, with respect to any Mortgage Loan. Any amounts received by
the
Servicer with respect a Mortgage Loan in excess of the Purchase Price shall
be
retained by the Servicer as additional servicing compensation. The Trustee,
upon
receipt of certification from the Servicer of the deposit of the Purchase Price
in connection with a repurchase of a Mortgage Loan and a Request for File
Release from the Servicer, shall release or cause to be released to the
purchaser of such Mortgage Loan the related Mortgage File and shall execute
and
deliver such instruments of transfer or assignment prepared by the purchaser
of
such Mortgage Loan, in each case without recourse, as shall be necessary to
vest
in the purchaser of such Mortgage Loan any Mortgage Loan released pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all the
Trustee’s right, title and interest in and to such Mortgage Loan and all
security and documents related thereto. Such assignment shall be an assignment
outright and not for security. The purchaser of such Mortgage Loan shall
thereupon own such Mortgage Loan, and all security and documents, free of any
further obligation to the Trustee or the Certificateholders with respect
thereto.
(d)
IndyMac
Bank, F.S.B. represents and warrants that each of the Covered Mortgage Loans
is
eligible for coverage under the Pool Policy. Each of the representations and
warranties set forth in Exhibit A to the Pool Policy and all representations
and
warranties made by IndyMac Bank, F.S.B. to the Pool Insurer under the Pool
Policy are true and correct as of the Closing Date.
Section 2.04 |
Representations
and Warranties of the Depositor as
to
|
the
Mortgage Loans.
The
Depositor hereby represents and warrants to the Trustee, the Supplemental
Interest Trust Trustee and the Certificate Insurer with respect to each Mortgage
Loan as of the date hereof or such other date set forth herein that as of the
Closing Date, and following the transfer of the Mortgage Loans to it by the
Seller, the Depositor had good title to the Mortgage Loans and the Mortgage
Notes were subject to no offsets, defenses, or counterclaims.
The
Depositor hereby transfers to the Trustee all of its rights with respect to
the
Mortgage Loans, including the representations and warranties of the Seller
made
above and pursuant to Section 2.03(b), together with all rights of the Depositor
to require the Seller to cure any breach thereof or to repurchase or substitute
for any affected Mortgage Loan in accordance with this Agreement.
The
representations and warranties in this Section 2.04 shall survive delivery
of
the Mortgage Files to the Trustee. Upon
discovery by the Depositor, the Trustee or the Supplemental Interest Trust
Trustee of any breach of any of the representations and warranties in this
Section that materially and adversely affects the interest of the
Certificateholders or the Certificate Insurer, the party discovering the breach
shall give prompt written notice to the others, the Certificate Insurer and
to
each Rating Agency.
Section 2.05 |
Delivery
of Opinion of Counsel in Connection
with
|
Substitutions
and Repurchases.
(a) Notwithstanding
any contrary provision of this Agreement, no substitution pursuant to Section
2.01, 2.02, 2.03 or 2.05 shall be made more than ninety (90) days after the
Closing Date unless the Seller delivers to the Trustee and the Certificate
Insurer an Opinion of Counsel, which Opinion of Counsel shall not be at the
expense of any of the Trustee, the Certificate Insurer or the Trust Fund,
addressed to the Trustee and the Certificate Insurer, to the effect that such
substitution will not (i) result in the imposition of the tax on “prohibited
transactions” on the Trust Fund or contributions after the Startup Date, as
defined in Sections 860F(a)(2) and 860G(d) of the Code, respectively, or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC
at
any time that any Certificates are outstanding. A substitution pursuant to
Section 2.01, 2.02, 2.03 or 2.05 that is made within ninety (90) days after
the
Closing Date shall not require the Seller to deliver to the Trustee an Opinion
of Counsel.
(b) Upon
discovery by the Depositor, the Seller, the Servicer, the Certificate Insurer
or
the Trustee that any Mortgage Loan does not constitute a “qualified mortgage”
within the meaning of Section 860G(a)(3) of the Code, the party discovering
such
fact shall promptly (and in any event within five (5) Business Days of
discovery) give written notice thereof to the other parties. In connection
therewith, the Trustee shall require the Seller, at the Seller’s option, to
either (i) substitute, if the conditions in Section 2.03(c) with respect to
substitutions are satisfied, a Substitute Mortgage Loan for the affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within ninety
(90)
days of such discovery in the same manner as it would a Mortgage Loan for a
breach of representation or warranty made pursuant to Section 2.03. The
Trustee shall reconvey to the Seller the Mortgage Loan to be released pursuant
hereto in the same manner, and on the same terms, as it would a Mortgage Loan
repurchased for breach of a representation or warranty contained in Section
2.03.
Section 2.06 |
Execution
and Delivery of
Certificates.
|
The
Trustee acknowledges the transfer and assignment to it of the Trust Fund and,
concurrently with the transfer and assignment, has executed and delivered to
or
upon the order of the Depositor, the Certificates in authorized denominations
evidencing directly or indirectly the entire ownership of the Trust
Fund. The
Trustee agrees to hold the Trust Fund and exercise the rights referred to above
for the benefit of all present and future Holders of the
Certificates.
Section 2.07 |
[Reserved].
|
Section 2.08 |
REMIC
Matters.
|
The
Preliminary Statement sets forth the designations and “latest possible maturity
date” for federal income tax purposes of all interests created
hereby.
(i) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC I for the benefit of the holders of the
REMIC I Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-I Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC I and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC I Regular Interests and the Class R Certificates (in
respect of the Class R-I Interest). The interests evidenced by the Class R-I
Interest, together with the REMIC I Regular Interests, constitute the entire
beneficial ownership interest in REMIC I.
(ii) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests (which are uncertificated) for the benefit of the Holders
of
the REMIC II Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-II Interest). The Trustee acknowledges
receipt of the REMIC I Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the Holders of
the
REMIC II Regular Interests and the Class R Certificates (in respect of the
Class
R-II Interest). The interests evidenced by the Class R-II Interest, together
with the REMIC II Regular Interests, constitute the entire beneficial ownership
interest in REMIC II.
(iii) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
II Regular Interests (which are uncertificated) for the benefit of the Holders
of the REMIC III Regular Interests (which are uncertificated) and the Class
R
Certificates (in respect of the Class R-III Interest). The Trustee acknowledges
receipt of the REMIC II Regular Interests and declares that it holds and will
hold the same in trust for the exclusive use and benefit of the Holders of
the
REMIC III Regular Interests and the Class R Certificates (in respect of the
Class R-III Interest). The interests evidenced by the Class R Certificates,
together with the REMIC III Regular Interests, constitute the entire beneficial
ownership interest in REMIC III.
(iv) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
III Regular Interests (which are uncertificated) for the benefit of the Holders
of the Regular Certificates and the Class R Certificates (in respect of the
Class R-IV Interest). The Trustee acknowledges receipt of the REMIC III Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of the Holders of the Regular Certificates, the Class
IO Interest and the Class R Certificates (in respect of the Class R-IV
Interest). The interests evidenced by the Class R-IV Interest, together with
the
Regular Certificates and the Class IO Interest, constitute the entire beneficial
ownership interest in REMIC IV.
The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests,
REMIC II Regular Interests and REMIC III Regular Interests and, concurrently
therewith and in exchange therefor, pursuant to the written request of the
Depositor executed by an officer of the Depositor or the Trustee has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
R
Certificates in authorized denominations. The interests evidenced by the Class
R
Certificates, together with the REMIC I Regular Interests, the REMIC II Regular
Interests, the REMIC III Regular Interests, the Regular Certificates and the
Class IO Interest constitute the entire beneficial ownership interest in REMIC
I, REMIC II, REMIC III and REMIC IV.
Section 2.09 |
Covenants
of the Servicer.
|
The
Servicer hereby covenants to the Depositor, the Certificate Insurer and the
Trustee as follows:
(a) the
Servicer shall comply in the performance of its obligations under each Required
Insurance Policy; and
(b) no
written information, certificate of an officer, statement furnished in writing
or written report delivered to the Depositor, any affiliate of the Depositor
or
the Trustee and prepared by the Servicer pursuant to this Agreement will contain
any untrue statement of a material fact or omit to state a material fact
necessary to make such information, certificate, statement, or report not
misleading.
Section 2.10 |
Purposes
and Powers of the
Trust
|
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) to
acquire and hold the Mortgage Loans and the other assets of the Trust Fund
and
the proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders and the Certificate
Insurer.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trustee and
the
Servicer shall not cause the Trust to engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement while any Certificate is outstanding, and this Section
2.10 may not be amended, without the consent of the Certificateholders
evidencing 66 2/3% or more of the aggregate Voting Rights of the
Certificates.
ARTICLE
III
Administration
and Servicing of
Mortgage Loans
Section 3.01 |
Servicer
to Service Mortgage
Loans.
|
For
and
on behalf of the Certificateholders 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 the Trust Fund to fail to qualify
as
a REMIC or result in the imposition of any tax under Section 860F(a) or Section
860G(d) of the Code.
Without
limiting the generality of the foregoing, the Servicer, in its own name or
in
the name of the Depositor and the Trustee, is hereby authorized and empowered
by
the Depositor and the Trustee, when the Servicer believes it appropriate in
its
reasonable judgment, to execute and deliver, on behalf of the Trustee, the
Depositor, the Certificateholders, or any of them, any instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor
or
the Trustee any documents requiring execution and delivery by either or both
of
them appropriate to enable the Servicer to service and administer the Mortgage
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of the
documents, the Depositor or the Trustee shall execute the documents and deliver
them to the Servicer.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name, when the Servicer believes
it appropriate in its best judgment to register any Mortgage Loan on the MERS®
System, or cause the removal from the registration of any Mortgage Loan on
the
MERS® System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In
accordance with and to the extent of the Servicing Standard, the Servicer shall
advance funds necessary to effect the payment of taxes and assessments on the
Mortgaged Properties, which advances shall be reimbursable in the first instance
from related collections from the Mortgagors pursuant to Section 3.07, and
further as provided in Section 3.09. The costs incurred by the Servicer in
effecting the timely payments of taxes and assessments on the Mortgaged
Properties and related insurance premiums shall not, for the purpose of
calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit. The Servicer is obligated to make required
Advances on the Mortgage Loans only until each related Mortgage Loan becomes
120
days delinquent.
Section 3.02 |
[Reserved].
|
Section 3.03 |
[Reserved].
|
Section 3.04 |
The
Pool Policy.
|
The
Servicer shall prepare and file on a timely basis with the Pool Insurer, all
claims which may be made under the Pool Policy with respect to the Covered
Mortgage Loans. Within fifteen (15) days of the end of each calendar month
(or
such other day mutually agreed to by the Servicer and the Pool Insurer), the
Servicer shall provide written notice to the Pool Insurer of (i) any Covered
Mortgage Loan that is two (2) months in Default (as defined under the Pool
Policy) or (ii) each
Covered Mortgage Loan with respect to which
the
Trustee (or the Servicer acting on its behalf) becomes aware of any proceedings
which affect the Covered Mortgage Loan or the Mortgaged Property or the Trust
Fund’s interest therein have been started. The Servicer shall
file a claim under the Pool Policy when any Covered Mortgage Loans becomes
four
(4) months in Default (as defined in the Pool Policy). The Servicer shall take
all actions required under the Pool Policy as a condition to the payment of
any
such claim and shall service the Covered Mortgage Loans in accordance with
the
requirements of the Pool Policy, including, but not limited to, the obligations
of the Servicer to comply with all reporting, notice, inspection and access
requirements set forth in the Pool Policy, obtaining the Pool Insurer’s advance
written approval of modifications to any Covered Mortgage Loan as set forth
in
the Pool Policy and submitting to the Pool Insurer for prior approval any change
to the Servicing Guidelines. The Servicer shall remit to the Seller such amounts
received under the Pool Policy and reimbursable to the Seller pursuant to
Section 2.03(c). The Servicer shall indemnify the Trust Fund, the Trustee,
the
Seller and the Certificate Insurer for any costs, expenses or liabilities
incurred by either of them if a claim made under the Pool Policy is denied
as a
result of an action or inaction on the part of the Servicer. The Trustee agrees
to hold the Pool Policy.
Section 3.05 |
Trustee
to Act as Servicer.
|
If
the
Servicer for any reason is no longer the Servicer hereunder (including because
of an Event of Default), the Trustee or its successor shall thereupon assume
all
of the rights and obligations of the Servicer hereunder arising thereafter,
except that the Trustee shall not be:
(i) liable
for losses of the Servicer pursuant to Section 3.10 or any acts or omissions
of
the predecessor Servicer hereunder,
(ii) obligated
to make Advances if it is prohibited from doing so by applicable
law,
(iii) obligated
to effectuate repurchases or substitutions of Mortgage Loans hereunder,
including repurchases or substitutions pursuant to Section 2.01, 2.02, 2.03
or
2.05,
(iv) responsible
for expenses of the Servicer pursuant to Section 2.03, or
(v) deemed
to
have made any representations and warranties of the Servicer hereunder. Any
assumption shall be subject to Section 7.02.
Notwithstanding
anything else in this Agreement to the contrary, in no event shall the Trustee
be liable for any servicing fee or for any differential in the amount of the
servicing fee paid under this Agreement and the amount necessary to induce
any
successor Servicer to act as successor Servicer under this Agreement and the
transactions provided for in this Agreement.
Section 3.06 |
Collection
of Mortgage Loan Payments; Certificate
Account;
|
Distribution
Account; Excess Reserve Fund Account.
(a) In
accordance with and to the extent of the Servicing Standard, the Servicer shall
make reasonable efforts in accordance with the customary and usual standards
of
practice of prudent mortgage servicers to collect all payments called for under
the Mortgage Loans to the extent the procedures are consistent with this
Agreement and any related Required Insurance Policy. Consistent with the
foregoing, the Servicer may in its discretion (and with the prior consent of
the
Pool Insurer with respect to a Covered Mortgage Loan if such consent is required
under the Pool Policy) (i) waive any late payment charge or, subject to Section
3.21, any Prepayment Charge or penalty interest in connection with the
prepayment of a Mortgage Loan, (ii) modify any delinquent or defaulted Mortgage
Loan (including modifications that change the Mortgage Rate, forgive the payment
of principal or interest or extend the final maturity date of that Mortgage
Loan); provided, that such modification is consistent with the Servicing
Standard and if in the Servicer’s determination such modification is not
materially adverse to the interests of the Certificateholders or the Certificate
Insurer (taking into account any estimated loss that might result absent such
action) and is expected to minimize the loss of such Mortgage Loan; provided,
however, that the Servicer shall not initiate new lending to such Mortgagor
through the Trust, and (iii) extend the due dates for payments due on a Mortgage
Note for a period not greater than 125 days. However, the Servicer cannot extend
the maturity of any Mortgage Loan past the date on which the final payment
is
due on the latest maturing Mortgage Loan as of the Cut-off Date. In the event
of
any such arrangement, the Servicer shall make Advances on the related Mortgage
Loan in accordance with Section 4.01 during the scheduled period in accordance
with the amortization schedule of the Mortgage Loan without modification thereof
because of the arrangements. The Servicer shall not be required to institute
or
join in litigation with respect to collection of any payment (whether under
a
Mortgage, Mortgage Note, or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which the payment is required is prohibited by applicable law. The Servicer
shall not sell any delinquent or defaulted Mortgage Loan.
(b) [Reserved].
(c) [Reserved].
(d) The
Servicer shall establish and maintain a segregated Certificate Account into
which the Servicer shall deposit on a daily basis (i) within one (1) Business
Day of receipt (in the case of items (i) through (iii) below) and (2) within
one
(1) Business Day of receipt (in the case of all other items), except as
otherwise specified herein, the following payments and collections received
by
it in respect of Mortgage Loans after the Cut-off Date (other than in respect
of
principal and interest due on the Mortgage Loans by the Cut-off Date) and the
following amounts required to be deposited hereunder:
(i) all
payments on account of principal on the Mortgage Loans, including Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans, net of the related
Servicing Fee;
(iii) all
Insurance Proceeds, Subsequent Recoveries and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with the Servicer’s normal servicing
procedures;
(iv) [reserved];
(v) any
amounts required to be deposited by the Servicer pursuant to Sections 3.12
and
3.14;
(vi) all
Purchase Prices received from the Servicer or Seller and all Substitution
Adjustment Amounts;
(vii) all
Advances made by the Servicer pursuant to Section 4.01;
(viii) all
amounts received pursuant to the Pool Policy other than amounts reimbursable
to
the Seller pursuant to Section 2.03(c);
(ix) any
other
amounts required to be deposited hereunder; and
(x) all
Prepayment Charges collected.
In
addition, with respect to any Mortgage Loan that is subject to a buydown
agreement, on each Due Date for the Mortgage Loan, in addition to the monthly
payment remitted by the related Mortgagor, the Servicer shall cause funds to
be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount
of
interest that has accrued on the Mortgage Loan from the preceding Due Date
at
the Mortgage Rate net of the Servicing Fee on that date.
The
foregoing requirements for remittance by the Servicer shall be exclusive.
Without limiting the generality of the foregoing, payments in the nature of
late
payment charges or assumption fees, if collected, need not be remitted by the
Servicer. If the Servicer remits any amount not required to be remitted, it
may
at any time withdraw that amount from the Certificate Account, any provision
herein to the contrary notwithstanding. The withdrawal or direction may be
accomplished by delivering written notice of it to the Trustee or any other
institution maintaining the Certificate Account that describes the amounts
deposited in error in the Certificate Account. The Servicer shall maintain
adequate records with respect to all withdrawals made pursuant to this Section
3.06. All funds deposited in the Certificate Account shall be held in trust
for
the Certificateholders until withdrawn in accordance with Section
3.09.
The
Trustee shall establish and maintain the Excess Reserve Fund Account, on behalf
of the Class C Certificateholders, to secure its limited recourse obligation
to
pay to the Class A Certificateholders Net WAC Cap Carry Forward
Amounts.
On
each
Distribution Date, the Trustee shall deposit the amount of any Net WAC Cap
Carry
Forward Amount for that date into the Excess Reserve Fund Account.
The
Trustee shall invest amounts held in the Excess Reserve Fund Account only in
Permitted Investments, which shall mature not later than the Business Day
preceding the next Distribution Date (except that if such Permitted Investment
is an obligation of the institution that maintains such account, then such
Permitted Investment shall mature not later than the next Distribution Date)
and, in each case, shall not be sold or disposed of before its maturity. The
Servicer shall direct the Trustee in writing with respect to investment of
amounts in the Excess Reserve Fund Account.
On
each
Distribution Date on which a Net WAC Cap Carry Forward Amount exists for the
Class A Certificates, the Trustee shall withdraw from the Excess Reserve Fund
Account amounts necessary to pay to the Class A Certificates the Net WAC Cap
Carry Forward Amount. Any Net WAC Cap Carry Forward Amounts paid by the Trustee
to the Class A Certificateholders shall be accounted for by the Trustee as
amounts distributed by REMIC III to the Class C Certificateholder (and from
the
Class C Certificateholder to the Excess Reserve Fund Account), for all federal
income tax purposes.
The
Trustee shall account for the Excess Reserve Fund Account as an “outside reserve
fund” within the meaning of Treasury Regulation Section 1.860G-2(h) and not an
asset of any REMIC created pursuant to this Agreement. It is the intention
of
the parties hereto that, for federal and state income and state and local
franchise tax purposes, the Excess Reserve Fund Account be disregarded as an
entity separate from the Holder of the Class C Certificates unless and until
the
date when either (a) there is more than one Class C Certificateholder or (b)
the
Class A Certificates, in addition to the Class C Certificates, are
recharacterized as an equity interest in the Excess Reserve Fund Account for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Excess Reserve Fund Account be treated as a partnership. The
Trustee shall treat amounts deposited into the Excess Reserve Fund Account
as
amounts distributed by REMIC III to the Class C Certificateholder (and from
the
Class C Certificateholder to the Excess Reserve Fund Account), for all federal
income tax purposes. Accordingly, the Class A Certificates will be comprised
of
two components - a REMIC Regular Interest and an interest in a cap contract.
The
Trustee shall allocate the issue price for a Class of Certificates between
two
components for purposes of determining the issue price of the REMIC Regular
Interest component. The Excess Reserve Fund Account will be part of the Trust
but not part of any REMIC and any payments to the Holders of the Class A
Certificates of Net WAC Cap Carry Forward Amounts will not be payments with
respect to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Excess Reserve Fund Account the amounts described above on each Distribution
Date as to which there is any Net WAC Cap Carry Forward Amount rather than
distributing such amount to the Class C Certificateholders. By accepting a
Class
C Certificate, each Class C Certificateholder further agrees that such direction
is given for good and valuable consideration, the receipt and sufficiency of
which is acknowledged by such acceptance.
For
federal tax return and information reporting, the right of the Holders of the
Class A Certificates to receive payments from the Excess Reserve Fund Account
in
respect of any Net WAC Cap Carry Forward Amounts may have more than a
de
minimis
value.
Notwithstanding
any provision contained in this Agreement, the Trustee shall not be required
to
make any payments from the Excess Reserve Fund Account except as expressly
stated in this Section 3.06(d).
(e) [Reserved].
(f) The
Trustee shall establish and maintain the Distribution Account on behalf of
the
Certificateholders. The
Trustee shall, promptly upon receipt, deposit in the Distribution Account and
retain therein the following:
(i) the
aggregate amount remitted by the Servicer to the Trustee pursuant to Section
3.09(a);
(ii) any
amount deposited by the Servicer pursuant to Section 3.06(g) in connection
with
any losses on Permitted Investments;
(iii) received
with respect to the termination of the Trust Fund pursuant to Section 9.01;
and
(iv) any
other
amounts deposited hereunder that are required to be deposited in the
Distribution Account.
If
the
Servicer remits any amount not required to be remitted, it may at any time
direct the Trustee in writing to withdraw that amount from the Distribution
Account, any provision herein to the contrary notwithstanding. The direction
may
be accomplished by delivering an Officer’s Certificate to the Trustee that
describes the amounts deposited in error in the Distribution Account. All funds
deposited in the Distribution Account shall be held by the Trustee in trust
for
the Certificateholders until disbursed in accordance with this Agreement or
withdrawn in accordance with Section 3.09. In no event shall the Trustee incur
liability for withdrawals from the Distribution Account at the direction of
the
Servicer.
(g) Each
institution at which the Certificate Account is maintained shall invest the
funds therein as directed in writing by the Servicer in Permitted Investments,
which shall mature, in the not later than the second Business Day preceding
the
related Distribution Account Deposit Date (except that if the Permitted
Investment is an obligation of the institution that maintains the account,
then
the Permitted Investment shall mature not later than the Business Day preceding
the Distribution Account Deposit Date and
shall
not be sold or disposed of before its maturity).
All
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders. All income realized from any investment of funds
on
deposit in the Certificate Account shall be for the benefit of the Servicer
as
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any realized losses on Permitted Investments in the Certificate
Account 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.
Funds
in
the Distribution Account shall not be invested unless directed in writing by
the
Trustee. Each institution at which the Distribution Account is maintained shall
invest the funds therein as directed in writing by the Trustee in Permitted
Investments, which shall mature, in the not later than the related Distribution
Date and shall not be sold or disposed of before its maturity. All income
realized from any investment of funds on deposit in the Distribution Account
shall be for the benefit of the Trustee and shall be remitted to it monthly
as
provided herein. The amount of any realized losses on Permitted Investments
in
the Distribution Account shall promptly be deposited by the Trustee in the
Distribution Account.
(h) [Reserved].
(i) The
Servicer shall notify the Trustee, the Seller, each Rating Agency, the
Certificate Insurer 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 before
any change thereof.
Section 3.07 |
Collection
of Taxes, Assessments, and Similar
Items
|
Escrow
Accounts.
(a) To
the
extent required by the related Mortgage Note and not violative of current law,
the Servicer shall establish and maintain one or more accounts (each, an
“Escrow
Account”)
and
deposit and retain therein all collections from the Mortgagors (or Servicing
advances) for the payment of taxes, assessments, hazard insurance premiums
or
comparable items for the account of the Mortgagors. Nothing herein shall require
the Servicer to compel a Mortgagor to establish an Escrow Account in violation
of applicable law.
(b) Withdrawals
of amounts so collected from the Escrow Accounts may be made only to effect
timely payment of taxes, assessments, hazard insurance premiums, condominium
or
PUD association dues, or comparable items, to reimburse (without duplication)
the Servicer out of related collections for any payments made pursuant to
Sections 3.01 (with respect to taxes and assessments and insurance premiums)
and
3.10 (with respect to hazard insurance), to refund to any Mortgagors any sums
determined to be overages, to pay interest, if required by law or the related
Mortgage or Mortgage Note, to Mortgagors on balances in the Escrow Account
or to
clear and terminate the Escrow Account at the termination of this Agreement
in
accordance with Section 9.01. The Escrow Accounts shall not be a part of the
Trust Fund.
(c) The
Servicer shall advance any payments referred to in Section 3.07(a) that are
not
timely paid by the Mortgagors on the date when the tax, premium or other cost
for which such payment is intended is due, but the Servicer shall be required
so
to advance only to the extent that such advances, in the good faith judgment
of
the Servicer, will be recoverable by the Servicer out of Insurance Proceeds,
Liquidation Proceeds, or otherwise.
Section 3.08 |
Access
to Certain Documentation and
Information
|
Regarding
the Mortgage Loans.
The
Servicer shall afford the Depositor, the Trustee, the Certificate Insurer and
the Supplemental Interest Trust Trustee reasonable access to all records and
documentation regarding the Mortgage Loans and all accounts, insurance
information, and other matters relating to this Agreement, such access being
afforded without charge, but only upon reasonable request and during normal
business hours at the office designated by the Servicer.
Upon
reasonable advance notice in writing, the Servicer will provide to each
Certificateholder or Certificate Owner that is a savings and loan association,
bank, or insurance company certain reports and reasonable access to information
and documentation regarding the Mortgage Loans sufficient to permit the
Certificateholder or Certificate Owner to comply with applicable regulations
of
the OTS or other regulatory authorities with respect to investment in the
Certificates. The Servicer shall be entitled to be reimbursed by each such
Certificateholder or Certificate Owner for actual expenses incurred by the
Servicer in providing the reports and access.
Section 3.09 |
Permitted
Withdrawals from the Certificate Account,
the
|
Distribution
Account and the Excess Reserve Fund Account.
(a) The
Servicer may (and, in the case of clause (ix) below, shall) from time to time
make withdrawals from the Certificate Account for the following
purposes:
(i) to
pay to
the Servicer (to the extent not previously retained) the servicing compensation
to which it is entitled pursuant to Section 3.15, and to pay to the Servicer,
as
additional servicing compensation, earnings on or investment income with respect
to funds in or credited to the Certificate Account;
(ii) to
reimburse the Servicer for unreimbursed Advances made by it, such right of
reimbursement pursuant to this subclause (ii) being limited to amounts received
on the Mortgage Loans in respect of which the Advance was made;
(iii) to
reimburse the Servicer for any Nonrecoverable Advance or Nonrecoverable
Servicing Advance previously made;
(iv) to
reimburse the Servicer for Insured Expenses from the related Insurance
Proceeds;
(v) to
reimburse the Servicer for (a) unreimbursed Servicing Advances, such right
of
reimbursement pursuant to this sub-clause (a) made by it being limited to
amounts received on the Mortgage Loans in respect of which the Servicing Advance
was made that represent late recoveries of the payments for which such advances
were made pursuant to Section 3.01, Section 3.07 or Section 3.10 and (b) for
unpaid Servicing Fees as provided in Section 3.12;
(vi) to
pay to
the purchaser, with respect to each Mortgage Loan or property acquired in
respect thereof that has been purchased pursuant to Section 2.01, 2.02, 2.03
or
2.05, all amounts received thereon after the date of such purchase;
(vii) to
reimburse the Seller, the Servicer or the Depositor for expenses incurred by
any
of them and reimbursable pursuant to Section 6.03;
(viii) to
withdraw any amount deposited in the Certificate Account and not required to
be
deposited therein;
(ix) by
the
Distribution Account Deposit Date, to withdraw (1) the Servicer Remittance
Amount for the Distribution Date, to the extent on deposit, and (2) the
Prepayment Charges on deposit, and remit such amount to the Trustee for deposit
in the Distribution Account;
(x) to
clear
and terminate the Certificate Account upon termination of this Agreement
pursuant to Section 9.01;
(xi) to
make
distributions to the Supplemental Interest Trust in accordance with Section
4.05; and
(xii) to
reimburse the Pool Insurer for any unreimbursed Trailing Payment (as such term
is defined in the Pool Policy) with respect to the Covered Mortgage Loans,
after
the payment of any Claim Amount (as such term is defined in the Pool Policy).
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 and the Certificate Insurer 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, the Certificate Insurer and the Pool 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;
(ii) to
pay to
the Servicer as additional servicing compensation earnings on or investment
income with respect to funds in the Distribution Account;
(iii) to
withdraw and return to the Servicer any amount deposited in the Distribution
Account and not required to be deposited therein; and
(iv) to
clear
and terminate the Distribution Account upon termination of the Agreement
pursuant to Section 9.01.
(c) On
each
Distribution Date, the Trustee shall make withdrawals from the Excess Reserve
Fund Account for deposit in the Distribution Account of the amount required
pursuant to Section 3.06(d). Each institution at which the Excess Reserve Fund
Account is maintained shall invest the funds therein as directed in writing
by
the Servicer in Permitted Investments, which shall mature not later than the
second Business Day preceding the related Distribution Account Deposit Date
(except that if the Permitted Investment is an obligation of the institution
that maintains the account, then the Permitted Investment shall mature not
later
than the Business Day preceding the Distribution Account Deposit Date) and
shall
not be sold or disposed of before its maturity. All Permitted Investments shall
be made in the name of the Trustee, for the benefit of the Certificateholders.
All income realized from any investment of funds on deposit in the Excess
Reserve Fund Account shall be for the benefit of the Servicer as servicing
compensation and shall be remitted to it monthly as provided herein. The amount
of any realized losses on Permitted Investments in the Excess Reserve Fund
Account shall promptly be deposited by the Servicer in the Excess Reserve Fund
Account. On the earlier of (i) the termination of this Agreement pursuant to
Section 9.01 and (ii) the Distribution Date on which all of the Certificates
(other than the Class C Certificates) are reduced to zero, any amount remaining
on deposit in the Excess Reserve Fund Account after giving effect to the
requirements of this section shall be withdrawn by the Trustee and paid to
the
Class C Certificateholders.
Section 3.10 |
Maintenance
of Hazard Insurance; Maintenance
of
|
Primary
Insurance Policies.
(a) The
Servicer shall maintain, for each Mortgage Loan, hazard insurance with extended
coverage in an amount that is at least equal to the lesser of (i) the maximum
insurable value of the improvements securing the Mortgage Loan and (ii) the
greater of (x) outstanding principal balance of the Mortgage Loan and (y) an
amount such that the proceeds of the hazard insurance policy are sufficient
to
prevent the related Mortgagor or the mortgagee from becoming a
co-insurer.
Each
policy of standard hazard insurance shall contain, or have an accompanying
endorsement that contains, a standard mortgagee clause. Any amounts collected
under the policies (other than the amounts to be applied to the restoration
or
repair of the related Mortgaged Property or amounts released to the Mortgagor
in
accordance with the Servicer’s normal servicing procedures) shall be deposited
in the Certificate Account. Any cost incurred in maintaining any insurance
shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Trustee for their benefit, be added
to
the principal balance of the Mortgage Loan, notwithstanding that the Mortgage
Loan so permits. Such costs shall be recoverable by the Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to
be
required of any Mortgagor or maintained on property acquired in respect of
a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at
the
time of origination of the Mortgage Loan in a federally designated special
flood
hazard area and the area is participating in the national flood insurance
program, the Servicer shall maintain flood insurance for the Mortgage Loan.
The
flood insurance shall be in an amount equal to the least
of
(i) the
original principal balance of the related Mortgage Loan, (ii) the replacement
value of the improvements that are part of the Mortgaged Property and
(iii)
the maximum amount of flood insurance available for the related Mortgaged
Property under the national flood insurance program.
If
the
Servicer obtains and maintains a blanket policy insuring against hazard losses
on all of the Mortgage Loans, it shall have satisfied its obligations in the
first sentence of this Section 3.10. The policy may contain a deductible clause
on terms substantially equivalent to those commercially available and maintained
by comparable servicers. If the policy contains a deductible clause and a policy
complying with the first sentence of this Section 3.10 has not been maintained
on the related Mortgaged Property, and if a loss that would have been covered,
but for the deductibles, 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 and the Certificate Insurer, claims
under any blanket policy.
(b) The
Servicer shall not take any action that would result in non-coverage under
any
applicable Primary Insurance Policy of any loss that, but for the actions of
the
Servicer, would have been covered thereunder. The Servicer shall not cancel
or
refuse to renew any Primary Insurance Policy that is in effect at the date
of
the initial issuance of the Certificates and is required to be kept in force
hereunder unless the replacement Primary Insurance Policy for the canceled
or
non-renewed policy is maintained with a Qualified Insurer. The Servicer need
not
maintain any Primary Insurance Policy if maintaining the Primary Insurance
Policy is prohibited by applicable law. The Servicer agrees, to the extent
permitted by applicable law, to effect the timely payment of the premiums on
each Primary Insurance Policy, and any costs not otherwise recoverable shall
be
recoverable by the Servicer from the related liquidation proceeds. The Servicer
shall maintain for as long as each relevant Mortgage Loan is outstanding the
mortgage insurance associated with the Mortgage Loans identified on the Mortgage
Loan Schedule as having lender acquired mortgage insurance, and as to any other
Mortgage Loans the Servicer need not maintain any Primary Insurance Policy
with
respect to any Mortgage Loan with a Loan-to-Value Ratio less than or equal
to
80% as of any date of determination or, based on a new appraisal, the principal
balance of the Mortgage Loan represents 80% or less of the new Appraised
Value.
In
connection with its activities as Servicer of the Mortgage Loans, the Servicer
agrees to present, on behalf of itself, the Trustee, the Certificate Insurer
and
the Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take any reasonable action in accordance with
the Servicing Standard necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected by the
Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account.
Section 3.11 |
Enforcement
of Due-On-Sale Clauses; Assumption
Agreements.
|
(a) Except
as
otherwise provided in this Section 3.11, when any property subject to a Mortgage
has been conveyed by the Mortgagor, the Servicer shall to the extent that it
has
knowledge of the conveyance and in accordance with the Servicing Standard,
enforce any due-on-sale clause contained in any Mortgage Note or Mortgage,
to
the extent permitted under applicable law and governmental regulations, but
only
to the extent that enforcement will not adversely affect or jeopardize coverage
under any Required Insurance Policy. Notwithstanding the foregoing, the Servicer
is not required to exercise these rights with respect to a Mortgage Loan if
the
Person to whom the related Mortgaged Property has been conveyed or is proposed
to be conveyed satisfies the conditions contained in the Mortgage Note and
Mortgage related thereto and the consent of the mortgagee under the Mortgage
Note or Mortgage is not otherwise so required under the Mortgage Note or
Mortgage as a condition to the transfer.
If
(i)
the Servicer is prohibited by law from enforcing any due-on-sale clause, (ii)
coverage under any Required Insurance Policy would be adversely affected, (iii)
the Mortgage Note does not include a due-on-sale clause or (iv) nonenforcement
is otherwise permitted hereunder, the Servicer is authorized, subject to Section
3.11(b), to take or enter into an assumption and modification agreement from
or
with the person to whom the property has been or is about to be conveyed,
pursuant to which the person becomes liable under the Mortgage Note and, unless
prohibited by applicable state law, the Mortgagor remains liable thereon. The
Mortgage Loan must continue to be covered (if so covered before the Servicer
enters into the agreement) by the applicable Required Insurance
Policies.
The
Servicer, subject to Section 3.11(b), is also authorized with the prior approval
of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with the Person, pursuant to which the
original Mortgagor is released from liability and the Person is substituted
as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.11 because of any transfer or assumption that the Servicer reasonably believes
it is restricted by law from preventing, for any reason whatsoever.
(b) Subject
to the Servicer’s duty to enforce any due-on-sale clause to the extent provided
in Section 3.11(a), in any case in which a Mortgaged Property has been conveyed
to a Person by a Mortgagor, and the Person is to enter into an assumption
agreement or modification agreement or supplement to the Mortgage Note or
Mortgage that requires the signature of the Trustee, or if an instrument of
release signed by the Trustee is required releasing the Mortgagor from liability
on the Mortgage Loan, the Servicer shall prepare and deliver to the Trustee
for
signature and shall direct the Trustee, in writing, to execute the assumption
agreement with the Person to whom the Mortgaged Property is to be conveyed,
and
the modification agreement or supplement to the Mortgage Note or Mortgage or
other instruments appropriate to carry out the terms of the Mortgage Note or
Mortgage or otherwise to comply with any applicable laws regarding assumptions
or the transfer of the Mortgaged Property to the Person. In connection with
any
such assumption, no material term of the Mortgage Note may be
changed.
In
addition, the substitute Mortgagor and the Mortgaged Property must be acceptable
to the Servicer in accordance with its underwriting standards as then in effect.
Together with each substitution, assumption, or other agreement or instrument
delivered to the Trustee for execution by it, the Servicer shall deliver an
Officer’s Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met in connection therewith. The
Servicer shall notify the Trustee that any substitution or assumption agreement
has been completed by forwarding to the Trustee the original of the substitution
or assumption agreement, which in the case of the original shall be added to
the
related Mortgage File and shall, for all purposes, be considered a part of
the
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof. The Servicer will retain any fee collected by
it
for entering into an assumption or substitution of liability agreement as
additional servicing compensation.
Section 3.12 |
Realization
Upon Defaulted Mortgage Loans; Repurchase of Certain Mortgage
Loans.
|
(a) The
Servicer shall use reasonable efforts in accordance with the Servicing Standard
to foreclose on or otherwise comparably convert the ownership of Mortgaged
Properties in respect of which the related Mortgage Loans have come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments. In connection with the foreclosure or other
conversion, the Servicer shall follow the Servicing Standard and shall follow
the requirements of the insurer under any Required Insurance
Policy.
Notwithstanding
the foregoing, the Servicer shall not be required to expend its own funds in
connection with any foreclosure or towards the restoration of any property
unless it determines (i) that the restoration or foreclosure will increase
the
proceeds of liquidation of the Mortgage Loan after reimbursement to itself
of
restoration expenses and (ii) that restoration expenses will be recoverable
to
it through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Certificate Account). The Servicer shall be
responsible for all other costs and expenses incurred by it in any foreclosure
proceedings. The Servicer is entitled to reimbursement thereof from the
liquidation proceeds with respect to the related Mortgaged Property, as provided
in the definition of Liquidation Proceeds. If the Servicer has knowledge that
a
Mortgaged Property that the Servicer is contemplating acquiring in foreclosure
or by deed in lieu of foreclosure is located within one mile of any site listed
in the Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984
or
other site with environmental or hazardous waste risks known to the Servicer,
the Servicer will, before acquiring the Mortgaged Property, consider the risks
and only take action in accordance with its established environmental review
procedures. The Servicer shall not foreclose any Mortgaged Property or accept
a
deed in lieu of foreclosure for any Mortgaged Property if the Servicer has
actual knowledge or notice that the Mortgaged Property contains material
hazardous wastes or substances subject to the Hazardous Substance Clean Up
Bond
Act of 1984.
With
respect to any REO Property, the deed or certificate of sale shall be taken
in
the name of the Trustee for the benefit of the Certificateholders, or its
nominee, on behalf of the Certificateholders. The Trustee’s name shall be placed
on the title to the REO Property solely as the Trustee hereunder and not in
its
individual capacity. The Servicer shall ensure that the title to the REO
Property references this Agreement and the Trustee’s capacity hereunder.
Pursuant to its efforts to sell the REO Property, the Servicer shall either
itself or through an agent selected by the Servicer protect and conserve the
REO
Property in accordance with the Servicing Standard as the Servicer deems to
be
in the best interest of the Certificateholders and the Certificate Insurer
for
the period before the sale of the REO Property.
The
Servicer shall perform the tax reporting and withholding required by Sections
1445 and 6050J of the Code with respect to foreclosures and abandonments, the
tax reporting required by Section 6050H of the Code with respect to the receipt
of mortgage interest from individuals and, if required by Section 6050P of
the
Code with respect to the cancellation of indebtedness by certain financial
entities, the preparation of any required tax and information returns, in the
form required, and filed the same.
If
the
Trust Fund acquires any Mortgaged Property as aforesaid or otherwise in
connection with a default or imminent default on a Mortgage Loan, the REO
Property shall only be held temporarily, shall be actively marketed for sale,
and the Servicer shall dispose of the Mortgaged Property as soon as practicable,
and in any case before the end of the third calendar year following the calendar
year in which the Trust Fund acquires the property. Notwithstanding any other
provision of this Agreement, no Mortgaged Property acquired by the Trust Fund
shall be rented (or allowed to continue to be rented) or otherwise used for
the
production of income by or on behalf of the Trust Fund.
The
decision of the Servicer to foreclose on a defaulted Mortgage Loan shall be
subject to a determination by the Servicer that the proceeds of the foreclosure
would exceed the costs and expenses of bringing a foreclosure proceeding. The
proceeds received from the maintenance of any REO Properties, net of
reimbursement to the Servicer for expenses incurred (including any property
or
other taxes) in connection with maintenance of the REO Properties and net of
unreimbursed Servicing Fees, Advances and Servicing Advances, shall be applied
to the payment of principal of and interest on the related defaulted Mortgage
Loans (with interest accruing as though the Mortgage Loans were still current
and adjustments, if applicable, to the Mortgage Rate were being made in
accordance with the Mortgage Note) and all such proceeds shall be deemed, for
all purposes in this Agreement, to be payments on account of principal and
interest on the related Mortgage Notes and shall be deposited into the
Certificate Account. To the extent the proceeds received during any calendar
month exceed the amount attributable to amortizing principal and accrued
interest at the related Mortgage Rate on the related Mortgage Loan for the
calendar month, the excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as any proceeds from
an REO Property, will be applied in the following order:
first,
to
reimburse the Servicer for any related unreimbursed Servicing Advances or
Servicing Fees or for any unreimbursed Advances, as applicable;
second,
to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Servicer pursuant to Section
3.09(a)(ii) that related to the Mortgage Loan;
third,
to
accrued and unpaid interest (to the extent no Advance has been made for such
amount or an Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Mortgage Rate through the Remittance Period preceding
the Distribution Date on which the amounts are required to be distributed;
and
fourth,
as a
recovery of principal of the Mortgage Loan. The Servicer will retain any Excess
Proceeds from the liquidation of a Liquidated Mortgage Loan as additional
servicing compensation pursuant to Section 3.15.
(b) With
respect to any Mortgage Loan that becomes 120 days or more delinquent and the
Servicer, after making a Final Recovery Determination, determines that a net
recovery that would eliminate or reduce a Realized Loss by more than an
immaterial amount is not possible through foreclosure, such Mortgage Loan shall
be charged off and such Mortgage Loan shall be treated as a Liquidated Mortgage
Loan giving rise to a Realized Loss. In addition, the Servicer shall
not be entitled to any additional Servicing Fees or reimbursement of
expenses in connection with any Charged-Off Mortgage Loan except that
(i) the Servicer shall be entitled to previously accrued and
unpaid Servicing Fees and previously incurred expenses and (ii) to the extent
of
funds available from the aggregate amount of subsequent recoveries on such
Charged-Off Mortgage Loan, the Servicer shall be entitled to
previously accrued Servicing Fees on any such Charged-Off Mortgage Loan and
expenses incurred in connection with collecting such subsequent
recoveries. Any recoveries on such Charged-Off Mortgage Loans (net of
any previously accrued and unpaid Servicing Fees and reimbursements to the
Servicer for expenses) shall be treated as Liquidation Proceeds distributable
to
the Trustee for the benefit of the Certificateholders.
(c) The
Servicer
may
modify any Mortgage Loan at the request of the related Mortgagor, provided
that
(i) the modification is in lieu of a refinancing, (ii) the modification of
a
Mortgage Loan is made to change the interest rate of the related Mortgage Loan
or to alter any other characteristics of the Mortgage Loan and (iii) the
Servicer purchases the relevant Mortgage Loan from the Trust Fund immediately
preceding the modification 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 of subsection (c) have been satisfied with
respect to the Mortgage Loan to be repurchased pursuant to this
paragraph.
The
Servicer shall deposit the Purchase Price for any Mortgage Loan repurchased
pursuant to this Section 3.12 in the Certificate Account pursuant to Section
3.06 within one (1) Business Day after the purchase of the Mortgage Loan. Upon
receipt by the Trustee of written notification of any such deposit signed by
a
Servicing Officer, the Trustee shall release to the Servicer the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in
the
Servicer any Mortgage Loan previously transferred and assigned pursuant
hereto.
The
Servicer covenants and agrees to indemnify the Trust Fund against any liability
for any taxes (including prohibited transaction taxes) and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as
a
result of any modification of a Mortgage Loan effected pursuant to this Section
3.12 or any purchase of a Mortgage Loan by the Servicer in connection with
a
modification (but such obligation shall not prevent the Servicer or any other
appropriate Person from contesting any such tax in appropriate proceedings
and
shall not prevent the Servicer from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest,
and
penalties, together with interest thereon, is refunded to the Trust Fund or
the
Servicer.
Section 3.13 |
Trustee
to Cooperate; Release of Mortgage
Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Trustee by delivering
a
“Request
for Release”
substantially in the form of Exhibit N. Upon receipt of the request, the Trustee
shall promptly release the related Mortgage File to the Servicer, and the
Trustee shall at the Servicer’s direction execute and deliver to the Servicer
the request for reconveyance, deed of reconveyance, or release or satisfaction
of mortgage or such instrument releasing the lien of the Mortgage in each case
provided by the Servicer, together with the Mortgage Note with written evidence
of cancellation thereon. Expenses incurred in connection with any instrument
of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor.
From
time
to time and as shall be appropriate for the servicing or foreclosure of any
Mortgage Loan, including for such purpose collection under any policy of flood
insurance, any fidelity bond or errors or omissions policy, or for the purposes
of effecting a partial release of any Mortgaged Property from the lien of the
Mortgage or the making of any corrections to the Mortgage Note or the Mortgage
or any of the other documents included in the Mortgage File, the Trustee shall,
upon delivery to the Trustee of a Request for Release in the form of Exhibit
M
signed by a Servicing Officer, release the Mortgage File to the Servicer or
its
designee. Subject to the further limitations stated below, the Servicer shall
cause the Mortgage File or documents so released to be returned to the Trustee
when the need therefor by the Servicer no longer exists, unless the Mortgage
Loan is liquidated and the proceeds thereof are deposited in the Certificate
Account, in which case the Servicer shall deliver to the Trustee a Request
for
Release in the form of Exhibit N, signed by a Servicing Officer.
If
the
Servicer at any time seeks to initiate a foreclosure proceeding in respect
of
any Mortgaged Property as authorized by this Agreement, the Servicer shall
deliver to the Trustee, for signature, as appropriate, any court pleadings,
requests for trustee’s sale, or other documents necessary to effectuate such
foreclosure or any legal action brought to obtain judgment against the Mortgagor
on the Mortgage Note or the Mortgage or to obtain a deficiency judgment or
to
enforce any other remedies or rights provided by the Mortgage Note or the
Mortgage or otherwise available at law or in equity.
Section 3.14 |
Documents,
Records, and Funds in Possession of the Servicer to be Held for the
Trustee.
|
The
Servicer shall account fully to the Trustee for any funds it receives or
otherwise collects as Liquidation Proceeds or Insurance Proceeds in respect
of
any Mortgage Loan. All Mortgage Files and funds collected or held by, or under
the control of, the Servicer in respect of any Mortgage Loans, whether from
the
collection of principal and interest payments or from Liquidation Proceeds,
including any funds on deposit in the Certificate Account, shall be held by
the
Servicer for and on behalf of the Trustee and shall be and remain the sole
and
exclusive property of the Trustee, subject to the applicable provisions of
this
Agreement. The Servicer also agrees that it shall not create, incur or subject
any Mortgage File or any funds that are deposited in the Certificate Account,
the Distribution Account or any Escrow Account, or any funds that otherwise
are
or may become due or payable to the Trustee for the benefit of the
Certificateholders, to any claim, lien, security interest, judgment, levy,
writ
of attachment, or other encumbrance, or assert by legal action or otherwise
any
claim or right of setoff against any Mortgage File or any funds collected on,
or
in connection with, a Mortgage Loan, except, however, that the Servicer shall
be
entitled to set off against and deduct from any such funds any amounts that
are
properly due and payable to the Servicer under this Agreement.
Section 3.15 |
Servicing
Compensation.
|
As
compensation for its activities hereunder, the Servicer may retain or withdraw
from the Certificate Account the Servicing Fee for each Mortgage Loan for the
related Distribution Date. Notwithstanding the foregoing, the aggregate
Servicing Fee payable to the Servicer shall be reduced by the lesser
of
the
aggregate of the Prepayment Interest Shortfalls with respect to the Distribution
Date and
the
aggregate Compensating Interest for the Distribution Date.
Additional
servicing compensation in the form of Prepayment Interest Excess, Excess
Proceeds, assumption fees, late payment charges and all income and gain net
of
any losses realized from Permitted Investments shall be retained by the Servicer
to the extent not required to be deposited in the Certificate Account pursuant
to Section 3.06. The Servicer shall be required to pay all expenses incurred
by
it in connection with its servicing activities hereunder (payment of any
premiums for hazard insurance, and any Primary Insurance Policy and maintenance
of the other forms of insurance coverage required by this Agreement) and shall
not be entitled to reimbursement therefor except as specifically provided in
this Agreement.
Section 3.16 |
Access
to Certain
Documentation.
|
The
Servicer shall provide to the OTS and the FDIC and to comparable regulatory
authorities supervising the Certificateholders and Certificate Owners and the
examiners and supervisory agents of the OTS, the FDIC and such other
authorities, access to the documentation regarding the Mortgage Loans required
by applicable regulations of the OTS and the FDIC. Access shall be afforded
without charge, but only upon reasonable prior written request and during normal
business hours at the offices designated by the Servicer. Nothing in this
Section 3.16 shall limit the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.16 as a result of such obligation shall not constitute a breach of this
Section 3.16.
Section 3.17 |
Annual
Statement as to
Compliance.
|
The
Servicer shall deliver to the Certificate Insurer and the Trustee via electronic
mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx), the Depositor and the Rating Agencies on
or
before March 15 of each year, commencing in 2008, an officer’s certificate,
certifying that with respect to the period ending December 31st of the prior
year: (i) the Servicer or such Servicing Officer, as applicable, has reviewed
the activities of the Servicer during the preceding calendar year or portion
thereof and its performance under this Agreement and (ii) to the best of the
Servicer’s or such Servicing Officer’s knowledge, as applicable, based on such
review, the Servicer has performed and fulfilled its duties, responsibilities
and obligations under this Agreement in all material respects throughout such
year, or, if there has been a default in the fulfillment of any such duties,
responsibilities or obligations, specifying each such default known to such
Servicing Officer and the nature and status thereof. Copies of any such
statement shall be provided by the Trustee to any Certificateholder and to
any
Person identified to the Trustee as a prospective transferee of a Certificate,
upon request at the expense of the requesting party, provided such statement
is
delivered by the Servicer to the Trustee. In addition to the foregoing, the
Servicer will, to the extent reasonable, give any other servicing information
required by the Commission pursuant to applicable law.
Section 3.18 |
Assessments
of Compliance and Attestation
Reports.
|
The
Servicer shall service and administer the Mortgage Loans in accordance with
all
applicable requirements of the Servicing Criteria (as set forth in Exhibit
R
hereto). Pursuant to Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122
of Regulation AB, the Servicer shall deliver to the Certificate Insurer and
the
Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the Depositor
prior
to (x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice
shall
have been filed, prior to March 15th of each year thereafter, a report regarding
the Servicer’s assessment of compliance (an “Assessment
of Compliance”)
with
the Servicing Criteria during the preceding calendar year. The Assessment of
Compliance must be reasonably satisfactory to the Depositor, and as set forth
in
Regulation AB, the Assessment of Compliance must contain the
following:
(i) A
statement by such officer of its responsibility for assessing compliance with
the Servicing Criteria applicable to the Servicer;
(ii) A
statement by such officer that such officer used the Servicing Criteria, and
which will also be attached to the Assessment of Compliance, to assess
compliance with the Servicing Criteria applicable to the Servicer;
(iii) An
assessment by such officer of the Servicer’s compliance with the applicable
Servicing Criteria for the period consisting of the preceding calendar year,
including disclosure of any material instance of noncompliance with respect
thereto during such period, which assessment shall be based on the activities
it
performs with respect to asset-backed securities transactions taken as a whole
involving the Servicer, that are backed by the same asset type as the Mortgage
Loans;
(iv) A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the preceding calendar year; and
(v) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Servicer, which statement shall be based on the activities it performs
with
respect to asset-backed securities transactions taken as a whole involving
the
Servicer, that are backed by the same asset type as the Mortgage
Loans.
Such
report at a minimum shall address each of the Servicing Criteria specified
on
Exhibit R hereto which are indicated as applicable to the Servicer.
Prior
to
(x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, the Servicer
shall
furnish to the Trustee and the Depositor a report (an “Attestation
Report”)
by a
registered public accounting firm that attests to, and reports on, the
Assessment of Compliance made by the Servicer, as required by Rules 13a-18
and
15d-18 of the Exchange Act and Item 1122(b) of Regulation AB, which Attestation
Report must be made in accordance with standards for attestation reports issued
or adopted by the Public Company Accounting Oversight Board.
The
Servicer shall cause and any sub-servicer, and each subcontractor determined
by
the Servicer to be “participating in the servicing function” within the meaning
of Item 1122 of Regulation AB, to deliver to the Trustee and the Depositor
an
Assessment of Compliance and Attestation Report as and when provided
above.
Such
Assessment of Compliance, as to any Sub-Servicer, shall at a minimum address
each of the Servicing Criteria specified on Exhibit R hereto which are indicated
as applicable to any “primary servicer.” Notwithstanding the foregoing, as to
any subcontractor, an Assessment of Compliance is not required to be delivered
unless it is required as part of a Form 10-K with respect to the Trust
Fund.
If
the
Servicer cannot deliver any Assessment of Compliance or Attestation Report
by
March 15th of such year, the Depositor, at its sole option, may permit a cure
period for the Servicer to deliver such Assessment of Compliance or Attestation
Report, but in no event later than March 25th of such year.
Failure
of the Servicer to timely comply with this Section 3.18 may be deemed an Event
of Default. The Trustee shall, with the consent of the Depositor, in addition
to
whatever rights the Trustee may have under this Agreement and at law or equity
or to damages, including injunctive relief and specific performance, give notice
to the Certificate Insurer (so long as no Certificate Insurer Default exists,
or
if a Certificate Insurer Default exists, then to Certificateholders) that it
has
ten Business Days to object. If no such objection is received, the Trustee
shall
immediately terminate all the rights and obligations of the Servicer under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof without
compensating the Servicer for the same. This paragraph shall supersede any
other
provision in this Agreement or any other agreement to the contrary.
The
Trustee shall, prior to (x) March 15, 2008 and (y) unless and until a Form
15
Suspension Notice shall have been filed, prior to March 15th of each year
thereafter, shall also provide an Assessment of Compliance and Attestation
Report, as and when provided above, which shall at a minimum address each of
the
Servicing Criteria specified on Exhibit R hereto which are indicated as
applicable to the “trustee.”
Section 3.19 |
Errors
and Omissions Insurance; Fidelity
Bonds.
|
The
Servicer shall obtain and maintain in force (a) policies of insurance covering
errors and omissions in the performance of its obligations as Servicer hereunder
and (b) a fidelity bond covering its officers, employees, and agents. Each
policy and bond shall, together, comply with the requirements from time to
time
of FNMA or FHLMC for persons performing servicing for mortgage loans purchased
by FNMA or FHLMC. The Servicer shall provide the Trustee, upon request, with
a
certificate of insurance relating to the insurance policies and fidelity bond.
If any policy or bond ceases to be in effect, the Servicer shall obtain a
comparable replacement policy or bond from an insurer or issuer meeting the
above requirements as of the date of the replacement.
Section 3.20 |
[Reserved].
|
Section 3.21 |
Prepayment
Charges.
|
(a) The
Servicer shall not waive any part of any Prepayment Charge unless the waiver
relates to a default or a reasonably foreseeable default, the collection of
any
Prepayment Charge would violate any relevant law or regulation or the waiving
of
the Prepayment Charge would otherwise benefit the Trust Fund and it is expected
that the waiver would maximize recovery of total proceeds taking into account
the value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any waiver
of a Prepayment Charge in connection with a refinancing of a Mortgage Loan
that
is related to a default or a reasonably foreseeable default). The Servicer
shall
not waive a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is not related to a default or a reasonably foreseeable default.
To
the extent that the Servicer waives a Prepayment Charge other than in accordance
with the terms of this paragraph, it shall remit the amount of such waived
Prepayment Charge to the Certificate Account for distribution as provided in
Section 4.02.
(b) The
Seller represents and warrants to the Depositor, the Trustee and the Certificate
Insurer as of the Closing Date, that the information in the Prepayment Charge
Schedule (including the attached prepayment charge summary) is complete and
accurate in all material respects at the dates as of which the information
is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms under applicable state law.
(c) Upon
discovery by the Seller or a Responsible Officer of the Trustee of a breach
of
the foregoing clause (b) that materially and adversely affects right of the
Holders of the Class P Certificates to receive any Prepayment Charge, the party
discovering the breach shall give prompt written notice to the other parties.
Within sixty (60) days of the earlier of discovery by the Servicer or receipt
of
notice by the Servicer of breach, the Servicer shall cure the breach in all
material respects or shall pay into the Certificate Account the amount of the
scheduled Prepayment Charge, less any amount previously collected and paid
by
the Servicer into the Certificate Account. If the covenant made by the Servicer
in clause (a) above is breached, the Servicer must pay into the Certificate
Account the amount of the waived Prepayment Charge.
Section 3.22 |
[Reserved].
|
Section 3.23 |
[Reserved]
|
Section 3.24 |
Commission
Reporting
|
(a) Unless
and until a Form 15 Suspension Notice shall have been filed, the Trustee shall,
within 15 days after each Distribution Date and in accordance with industry
standards, file with the Commission via the Electronic Data Gathering and
Retrieval System (“XXXXX”),
a
Distribution Report on Form 10-D (the “Distribution
Report”)
with a
copy of the Monthly Statement to be furnished by the Trustee to the
Certificateholders for such Distribution Date and, if applicable, including
the
information required by each of the items set forth in Part II thereof, subject
to the receipt of the information set forth in (f) below, in the case of
information not required to be provided by the Trustee.
(b)
Except
with respect to the Distribution Report to be filed following the first
Distribution Date, the Trustee shall prepare each Distribution Report and,
no
later than 5 Business Days prior to the date on which such Distribution Report
is required to be filed, deliver a copy of such Distribution Report to the
Depositor for review. No later than the Business Day following the receipt
thereof, the Depositor shall notify the Trustee of any changes to made to the
Distribution Report. The Trustee shall make any changes thereto requested by
the
Depositor and deliver the final Distribution Report to the Depositor for
signature no later than three Business Days prior to the date on which such
Distribution Report must be filed by the Trustee in accordance with clause
(a)
above. The Depositor shall execute the final Distribution Report and deliver
the
same to the Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) or
facsimile no later than the Business Day following receipt of the same (which,
unless not received within such time frame from the Trustee, shall be no later
than two Business Days prior to the date on which the Distribution Report is
required to be filed), with an original executed hard copy to follow by
overnight mail. With respect to the Distribution Report to be filed following
the first Distribution Date, the Depositor shall prepare and execute such
Distribution Report and, no later than 5 Business Days prior to the date on
which such Distribution Report is required to be filed, deliver a copy of such
Distribution Report to the Trustee. The Trustee shall attach thereto the Monthly
Statement furnished by the Trustee to the Certificateholders for such
Distribution Date and file such Distribution Report in accordance with clause
(a) above.
(c) The
Depositor shall prepare and file Current Reports on Form 8-K, as and when
required.
(d) Prior
to
January 30th of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with industry standards, file
a
Form 15 Suspension Notice with respect to the Trust Fund.
(e)
Prior to
(x) March 15, 2008 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 15th of each year thereafter, the Servicer
shall
provide the Trustee with an Annual Compliance Statement, together with a copy
of
the Assessment of Compliance and Attestation Report to be delivered by the
Servicer pursuant to Sections 3.17 and 3.18. Prior to (x) March 31, 2008 and
(y)
unless and until a Form 15 Suspension Notice shall have been filed, March 31st
of each year thereafter, the Trustee shall, subject to subsection (f) below,
file a Form 10-K, with respect to the Trust Fund. The Trustee shall prepare
each
Form 10-K and, no later than 5 Business Days prior to the date on which such
Form 10-K is required to be filed, deliver a copy of such Form 10-K to the
Depositor for review. No later than the Business Day following the receipt
thereof, the Depositor shall notify the Trustee of any changes to be made to
the
Form 10-K. The Trustee shall make any changes thereto requested by the Depositor
and deliver the final Form 10-K to the Depositor for signature no later than
three Business Days prior to the date on which such Form 10-K must be filed
by
the Trustee in accordance with this clause (e). The Depositor shall execute
the
final Form 10-K and deliver the same to the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) or facsimile no later than Business Day following
receipt of the same (which, unless not received within such time frame from
the
Trustee, shall be no later than two Business Days prior to the date on which
the
From 10-K is required to be filed), with an original executed hard copy to
follow by overnight mail. Such Form 10-K shall include the Assessment of
Compliance, Attestation Report, Annual Compliance Statements and other
documentation provided by the Servicer pursuant to Sections 3.17 and 3.18 and
a
certification in the form attached hereto as Exhibit O-1 (the “Depositor
Certification”),
which
shall be signed by the senior officer of the Depositor in charge of
securitization.
(f) As
to
each item of information required to be included in any Form 10-D, Form 8-K
or
Form 10-K, the Trustee's or Depositor’s obligation to include the information in
the applicable report is subject to receipt from the entity that is indicated
in
Exhibit S as the responsible party for providing that information, if other
than
the Trustee or the Depositor, as applicable, as and when required as described
above. Each of the Trustee, the Servicer and the Depositor, as applicable,
hereby agree to notify and provide to the Trustee and the Depositor all
information that is required to be included in any Form 10-D, Form 8-K or Form
10-K, with respect to which that entity is indicated in Exhibit S as the
responsible party for providing that information. In the case of information
to
be included in the From 10-D, such information shall be delivered to the Trustee
no later than no later than 5 calendar days following each Distribution Date.
In
the case of information to be included in the Form 8-K, such information shall
be delivered to the Depositor no later than no later 2 Business Days following
the occurrence of a reportable event. In the case of information to be included
in the From 10-K, such information, other than the documentation provided
pursuant to Sections 3.17, 3.18 and 3.24(f), shall be delivered to the Trustee
no later than no later than (x) March 1, 2008 and (y) unless and until a Form
15
Suspension Notice shall have been filed, March 1st of each year thereafter.
The
Servicer shall be responsible for determining the pool concentration applicable
to any subservicer or originator at any time, for purposes of disclosure as
required by Items 1117 and 1119 of Regulation AB. The Trustee shall provide
electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge
to any Certificateholder upon request.
(g) The
Trustee shall sign a certification (in the form attached hereto as Exhibit
O-2)
for the benefit of the Depositor and its officers, directors and Affiliates.
The
Trustee's certification shall be delivered to the Depositor by no later than
March 18th of each year (or if such day is not a Business Day, the immediately
preceding Business Day) and the Depositor shall deliver the Depositor
Certification to the Trustee for filing no later than March 20th of each year
(or if such day is not a Business Day, the immediately preceding Business
Day).
(h) The
Trustee shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of or based upon (i) a breach of the
Trustee’s obligations under this Section 3.24, Section 3.18 or (ii) any
material misstatement or omission contained in any information provided by
the
Trustee including, without limitation, in the certification provided by the
Trustee in the form of Exhibit O-2 or the Assessment of Compliance provided
pursuant to Section 3.18. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor, then the Trustee,
in
connection with (i) a breach of the Trustee’s obligations under this
Section 3.24, Section 3.18 or (ii) any material misstatement or omission
contained in any information provided by the Trustee including, without
limitation, in the certification provided by the Trustee in the form of Exhibit
O-2, or in the Assessment of Compliance or Attestation Report provided pursuant
to Section 3.18, agrees that it shall contribute to the amount paid or payable
by the Depositor as a result of the losses, claims, damages or liabilities
of
the Depositor in such proportion as is appropriate to reflect the relative
fault
of the Depositor on the one hand and the Trustee on the other. This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
The
Servicer shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon (i) a breach of the Servicer’s obligations under Sections
3.17, 3.18 or 3.24 or (ii) any material misstatement or omission contained
in
any information provided by the Servicer including, without limitation, in
the
information provided pursuant to Sections 3.17 and 3.18. This indemnification
shall survive the termination of this Agreement or the termination of any party
to this Agreement.
The
Depositor shall indemnify and hold harmless the Servicer, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses that such Person
may sustain based upon (i) a breach of the Depositor’s obligations under this
Section 3.24 or (ii) any material misstatement or omission contained in any
information provided by the Depositor.
(i) The
Trustee will have no duty or liability to verify the accuracy or sufficiency
of
any information not prepared by it included in any Form 10-D, Form
10-K or Form 8-K. The Trustee shall have no liability with
respect to any failure to properly prepare or file any Form 10-D or Form 10-K
resulting from or relating to the Trustee's inability or failure to obtain
any
information in a timely manner from the party responsible for delivery of such
disclosure information. The Trustee shall have no liability with respect
to any failure to properly file any Form 10-D or 10-K resulting from or relating
to the Depositor's failure to timely comply with the provisions of this
section. Nothing herein shall be construed to require the Trustee or any
officer, director or Affiliate thereof to sign any Form 10-D, Form 10-K or
Form
8-K. Copies of all reports filed by the Trustee under the Exchange Act shall
be
sent to the Depositor electronically or at the address set forth in Section
10.05. Fees and expenses incurred by the Trustee in connection with this Section
3.24 shall not be reimbursable from the Trust Fund.
(j) Upon
any
filing with the Commission, the Trustee shall promptly deliver to the Depositor
a copy of any executed report, statement or information.
(k) To
the
extent that, following the Closing Date, the Depositor certifies that reports
and certifications differing from those required under this Section 3.24 are
necessary to comply with the reporting requirements under the Exchange Act,
the
parties hereto hereby agree that each will reasonably cooperate to amend the
provisions of this Section 3.24(b) in order to comply with such amended
reporting requirements and such amendment of this Section 3.24. Any such
amendment may result in the reduction of the reports executed by and filed
on
behalf of the Depositor under the Exchange Act. Notwithstanding the foregoing,
the Trustee shall not be obligated to enter into any amendment pursuant to
this
Section that adversely affects its obligations and immunities under this
Agreement.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.17, 3.18
and
this Section 3.24 of this Agreement is to facilitate compliance by the Depositor
with the provisions of Regulation AB. Therefore, each of the parties agree
that
(a) the obligations of the parties hereunder shall be interpreted in such a
manner as to accomplish that purpose, (b) the parties’ obligations hereunder
will be supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance in respect of the requirements
of
Regulation AB, (c) the parties shall comply with reasonable requests made by
the
Depositor for delivery of additional or different information as the Depositor
may determine in good faith is necessary to comply with the provisions of
Regulation AB, and (d) no amendment of this Agreement shall be required to
effect any such changes in the parties’ obligations as are necessary to
accommodate evolving interpretations of the provisions of Regulation
AB.
ARTICLE
IV
Distributions
and Advances by the Servicer
Section 4.01 |
Advances.
|
(a) The
Servicer shall determine by each Servicer Advance Date whether it is required
to
make an Advance pursuant to the definition of Advance. If the Servicer
determines it is required to make an Advance, it shall, by the Servicer Advance
Date, either (i) deposit into the Certificate Account the Advance or (ii) make
an appropriate entry in its records relating to the Certificate Account that
any
Amount Held for Future Distribution has been used by the Servicer in discharge
of its obligation to make the Advance. The Servicer shall replace any funds
so
applied by making a deposit in the Certificate Account no later than the close
of business on the next Servicer Advance Date. The Servicer shall be reimbursed
from the Certificate Account for all Advances of its own funds made pursuant
to
this Section 4.01, as provided in Section 3.09. The obligation to make Advances
with respect to any Mortgage Loan shall continue if the Mortgage Loan has been
foreclosed or otherwise terminated and the related Mortgaged Property has not
been liquidated. The Servicer shall inform the Trustee of the amount of the
Advance to be made on each Servicer Advance Date no later than the second
Business Day before the related Distribution Date. The Servicer is obligated
to
make Advances of principal and interest on the Mortgage Loans only until the
related Mortgage Loan is 120
days
delinquent in payment of principal and interest and to
the
extent that those Advances are, in the Servicer’s reasonable judgment,
recoverable from future payments and collections or insurance payments or
proceeds of liquidation of the related mortgage loan.
(b) If
the
Servicer determines that it will be unable to comply with its obligation to
make
the Advances as and when described in the second sentence of Section 4.01(a),
it
shall use its best efforts to give written notice thereof to the Trustee (each
such notice, an “Advance
Notice”;
and
such notice may be given by telecopy), not later than 3:00 p.m., (New York
time), on the Business Day immediately preceding the related Servicer Advance
Date, specifying the amount that it will be unable to deposit (each such amount,
an “Advance
Deficiency”)
and
certifying that such Advance Deficiency constitutes the amount of an Advance
hereunder and that such Advance would not be a Nonrecoverable Advance. If the
Trustee receives an Advance Notice on or before 3:00 p.m., (New York time)
on a
Servicer Advance Date, the Trustee is entitled to immediately terminate the
Servicer under Section 7.01, and shall, not later than 3:00 p.m., (New York
time), on the related Distribution Date, deposit in the Distribution Account
an
amount equal to the Advance Deficiency identified in such Advance Notice unless
it is prohibited from so doing by applicable law. Notwithstanding the foregoing,
the Trustee shall not be required to make such deposit if the Trustee shall
have
received written notification from the Servicer that the Servicer has deposited
or caused to be deposited in the Certificate Account an amount equal to such
Advance Deficiency by 3:00 p.m. (New York time) on the related Distribution
Date. If the Trustee has not terminated the Servicer, the Servicer shall
reimburse the Trustee for the amount of any such Advance Deficiency (including
interest at the Prime Rate published in The
Wall Street Journal
on the
day of such reimbursement on such amount), made by the Trustee pursuant to
this
Section 4.01(b), not later than the second day following the related Servicer
Advance Date. In the event that the Servicer does not reimburse the Trustee
in
accordance with the requirements of the preceding sentence, the Trustee shall
immediately (a) terminate all of the rights and obligations of the Servicer
under this Agreement in accordance with Section 7.01 and (b) subject to the
limitations set forth in Section 3.05, assume all of the rights and obligations
of the Servicer hereunder.
(c) The
Servicer shall, not later than the close of business on the Business Day
immediately preceding each Servicer Advance Date, deliver to the Trustee a
report (in form and substance reasonably satisfactory to the Trustee) that
indicates (i) the Mortgage Loans with respect to which the Servicer has
determined that the related Scheduled Payments should be advanced and (ii)
the
amount of the related Scheduled Payments. Notwithstanding anything to the
contrary herein, no Servicing Advance shall be required to be made hereunder
by
the Servicer if such Servicing Advance would, if made, constitute a
Nonrecoverable Servicing Advance. 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 or Servicing Advance
determined by the Servicer to be a Nonrecoverable Advance or Nonrecoverable
Servicing Advance.
(d) To
the
extent that any claim has been denied or rescinded by the Pool Insurer in
respect of any Covered Mortgage Loan on account of any breach, action or
omission of the Seller or the Servicer, the Servicer shall be required to
advance out of its own funds the amount of such claim, together with any accrued
interest from the date that interest was last paid or advanced and include
such
amounts for distribution pursuant to Section 4.01 on the immediately succeeding
Distribution Date after it has received notice of such denial, rejection or
rescission of coverage. If any claim was denied, rejected or coverage
rescinded in respect of any Covered Mortgage Loan on account of any breach,
action or omission of the Seller, then the Servicer shall seek recovery for
any
advances made pursuant to this Section 4.01(d) from the Seller. If a claim
was rejected, denied or coverage was rescinded in respect of any Covered
Mortgage Loan on account of any breach, action or omission of the Servicer,
then
the Servicer shall not be entitled to reimbursement for such
advances.
Section 4.02 |
Priorities
of Distribution.
|
On
each
Distribution
Date,
Net
Swap Payments and Swap Termination Payments (other than Swap Termination
Payments resulting from a Swap Provider Trigger Event) payable by the
Supplemental Interest Trust to the Swap Provider shall be withdrawn by the
Trustee from amounts on deposit in the Distribution Account, prior to any
distributions to the Certificateholders. On each Distribution Date, such amounts
will be remitted to the Supplemental Interest Trust, first to make any Net
Swap
Payment owed to the Swap Provider for such Distribution Date, and second to
make
any Swap Termination Payment (not due to a Swap Provider Trigger Event) owed
to
the Swap Provider for such Distribution Date. The Trustee shall then make the
disbursements and transfers from Available Funds and from payments made by
the
Certificate Insurer under the Policy then on deposit in the Distribution Account
(but, with regards to payments made under the Policy, only for distributions
made under Sections (B) and (C) herein) in the following amounts and order,
in
each case to the extent of Available Funds remaining:
(A) to
the
Certificate Insurer, the amount owing to the Certificate Insurer under the
Insurance Agreement for the Premium;
(B) concurrently
to each class of Offered Certificates, the Accrued Certificate Interest
Distribution Amount and any Unpaid Interest Amount for each such Class and
such
Distribution Date, pro
rata,
based
on their respective entitlements;
(C) to
the
Class A Certificates the Principal Distribution Amount for such Distribution
Date, until its Class Certificate Balance has been reduced to zero;
(D) to
the
Certificate Insurer, the amount owing to the Certificate Insurer under the
Insurance Agreement for reimbursement for prior claims paid under the Policy
and
any other amounts owing to the Certificate Insurer under the Insurance
Agreement, to the extent not paid pursuant to clause (A) above.
(E) to
the
Class A Certificates in reduction of the Class Certificate Balance thereof,
until its Class Certificate Balance has been reduced to zero;
(F) to
the
Excess Reserve Fund Account, the amount of any Net WAC Carry Forward Amounts
for
such Distribution Date to be distributed to the Class A
Certificates;
(G) to
the
Swap Provider, any Swap Termination Payment resulting from a Swap Provider
Trigger Event;
(H) to
the
Holders of the Class C Certificates, (a) the Class C Distributable Amount and
(b) on any Distribution Date on which the Class Certificate Balance of the
Class
A Certificates has been reduced to zero, any remaining amounts in reduction
of
the Class Certificate Balance of the Class C Certificates, until the Class
Certificate Balance thereof has been reduced to zero;
(I) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Class Certificate Balance thereof, until the Class Certificate Balance thereof
is reduced to zero; and
(J) to
the
Holders of the Class R Certificates (in respect of the Class R-I Interest),
the
remaining amount.
On
each
Distribution Date, the Supplemental Interest Trust Trustee shall make the
distributions required under Section 4.05(c).
On
each
Distribution Date, an amount equal to all Prepayment Charges received during
the
related Prepayment Period together with the amounts paid in respect thereof
pursuant to Section 3.21 shall be distributed to the Holders of the Class P
Certificates. The distribution of the foregoing amounts to the Holders of the
Class P Certificates shall not reduce the Class Certificate Balance thereof.
It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to the Class A Certificates or the Certificate Insurer,
or with respect to interest, the Class A-IO Certificates, and that the Class
R
Certificates are to receive no principal and interest. If the Trustee determines
that the Class R Certificates are entitled to any distributions, the Trustee,
prior to any such distribution to the Class R Certificates, shall notify the
Depositor of such impending distribution but shall make such distribution in
accordance with the terms of this Agreement until this Agreement is amended
as
specified in the following sentence. Upon such notification, the Depositor
will
request an amendment to this Pooling and Servicing Agreement to revise such
mistake in the distribution provisions. The Class R Certificateholders, by
acceptance of their Certificates, and the Servicer, hereby agrees to any such
amendment and no further consent shall be necessary, notwithstanding anything
to
the contrary in Section 10.01 of this Pooling and Servicing Agreement; provided,
however, that such amendment shall otherwise comply with Section 10.01
hereof.
Section 4.03 |
Monthly
Statements to Certificateholders.
|
(a) Not
later
than each Distribution Date, the Trustee shall prepare and make available to
each Certificateholder, the Servicer, the Depositor, the Certificate Insurer,
the Swap Provider, the Pool Insurer and each Rating Agency on its Internet
website a statement for the related distribution of:
(i) the
applicable Record Dates, Interest Accrual Periods and Determination Dates for
calculating distributions for such Distribution Date;
(ii) the
amount of funds received from the Servicer for such Distribution Date separately
identifying amounts received in respect of the Mortgage Loans, the amount of
Advances included in the distribution on the Distribution Date, the amount
of
any Net Swap Payment made to the Supplemental Interest Trust
and any
Swap Termination Payment made to the Supplemental Interest Trust;
(iii) the
Servicing Fee and Trustee Fee for such Distribution Date;
(iv) the
amount of any Net Swap Payment from the Supplemental Interest Trust to the
Swap
Provider and any Swap Termination Payment from the Supplemental Interest Trust
to the Swap Provider;
(v) the
aggregate amount of expenses paid from amounts on deposit in (x) the Certificate
Account and (y) the Distribution Account;
(vi) the
amount of the distribution allocable to principal, separately identifying the
aggregate amount of any Principal Prepayments and Liquidation Proceeds included
therein;
(vii) the
amount of the distribution allocable to interest, any Unpaid Interest Amounts
included in the distribution and any remaining Unpaid Interest Amounts after
giving effect to the distribution, any Net WAC Cap Carry Forward Amount for
the
Distribution Date, and the amount of all Net WAC Cap Carry Forward Amounts
covered by withdrawals from the Excess Reserve Account on the Distribution
Date;
(viii) if
the
distribution to the Holders of any Class of Certificates is less than the full
amount that would be distributable to them if sufficient funds were available,
the amount of the shortfall and the allocation of the shortfall between
principal and interest, including any Net WAC Cap Carry Forward Amount not
covered by amounts in the Excess Reserve Fund Account;
(ix) the
amount of any Total Monthly Excess Spread on the Distribution Date and the
allocation thereof to the Certificateholders;
(x) the
Class
Certificate Balance or Notional Amount, as applicable, of each Class of
Certificates before and after giving effect to the distribution of principal
on
the Distribution Date;
(xi) the
Pass-Through Rate for the Class A Certificates with respect to the Distribution
Date;
(xii) the
amount on deposit in the Certificate Account and the Excess Reserve Fund Account
(before and after giving effect to distributions on the Distribution Account
Deposit Date and Distribution Date, respectively);
(xiii) the
number of Mortgage Loans and the Pool Stated Principal Balance as the first
day
of the related Remittance Period and the last day of the related Remittance
Period;
(xiv) as
of the
last day of the related Remittance Period: (A) the weighted average mortgage
rate of the Mortgage Loans and (B) the weighted average remaining term to
maturity of the Mortgage Loans;
(xv) the
number and aggregate outstanding balance of the Mortgage Loans as of the end
of
the preceding calendar month: (A) delinquent (exclusive of Mortgage Loans in
foreclosure) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days and
(B) in foreclosure and delinquent (1) 30 to 59 days, (2) 60 to 89 days and
(3)
90 or more days, as of the close of business on the last day of the calendar
month preceding the Distribution Date;
(xvi) for
each
of the preceding 12 calendar months, or all calendar months since the Cut-off
Date, whichever is less, the aggregate dollar amount of the Scheduled Payments
(A) due on all Outstanding Mortgage Loans on the Due Date in such month and
(B)
delinquent sixty (60) days or more on the Due Date in such month;
(xvii) with
respect to any Mortgage Loan that became an REO Property during the preceding
calendar month, the loan number and Stated Principal Balance of the Mortgage
Loan as of the close of business on the Determination Date preceding the
Distribution Date and the date of acquisition thereof;
(xviii) the
total
number and principal balance of any REO Properties (and market value, if
available) as of the close of business on the Determination Date preceding
the
Distribution Date;
(xix) the
aggregate amount of Principal Prepayments received during the related Prepayment
Period and the number of Mortgage Loans subject to such Principal
Prepayments;
(xx) the
aggregate amount of Advances and Servicing Advances reimbursed during the
related Remittance Period, the general source of funds for such reimbursements
and the aggregate amount of Advances and Servicing Advances outstanding as
of
the close of business on the Distribution Date;
(xxi) the
amount of any Charge-off Amounts during the prior calendar month and since
the
Cut-off Date;
(xxii) the
aggregate number and outstanding principal balance of Mortgage Loans repurchased
during the related Remittance Period due to material breaches of representations
and warranties regarding such Mortgage Loans;
(xxiii) the
Overcollateralization Amount for such Distribution Date;
(xxiv) Prepayment
Charges collected, waived, and paid by the Servicer;
(xxv) with
respect to the second Distribution Date, the number and aggregate balance of
any
Delayed Delivery Mortgage Loans not delivered within the time periods specified
in the definition of Delayed Delivery Mortgage Loans;
(xxvi) the
amount of any payments/draws under the Pool Policy, the amount of any Realized
Losses with respect to the Covered Mortgage Loans and the remaining Maximum
Aggregate Liability (as defined in the Pool Policy);
(xxvii) the
amount of any Premium and Reimbursement Amounts paid to the Certificate Insurer
on such Distribution Date and cumulatively; and
(xxviii) the
receipt by the Servicer of any Subsequent Recoveries.
In
addition, not later than each Distribution Date, the Trustee shall prepare
and
make available to the Certificate Insurer a statement containing the amount
of
any payment to the Pool Insurer, any rejections and/or denials of claims under
the Pool Policy, the Cumulative Covered Loan Loss for such Distribution Date
and
the remaining unused Deductible Amount (as defined under the Pool
Policy).
For
all
purposes of this Agreement, with respect to any Mortgage Loan, delinquencies
shall be determined and reported based on the “OTS” methodology for determining
delinquencies on mortgage loans similar to the Mortgage Loans. By way of
example, a Mortgage Loan would be delinquent with respect to a Monthly Payment
due on a Due Date if such Monthly Payment is not made by the close of business
on the Mortgage Loan’s next succeeding Due Date, and a Mortgage Loan would be
more than 30-days Delinquent with respect to such Monthly Payment if such
Monthly Payment were not made by the close of business on the Mortgage Loan’s
second succeeding Due Date. The Servicer hereby represents and warrants to
the
Depositor that this delinquency recognition policy is not less restrictive
than
any delinquency recognition policy established by the primary safety and
soundness regulator, if any, of the Servicer.
If
the
statement is not accessible to any of the Certificateholders, the Certificate
Insurer, the Swap Provider, the Servicer, the Depositor or any Rating Agency
on
the Trustee’s Internet website, the Trustee shall forward a hard copy of it to
each Certificateholder, the Servicer, the Depositor, the Certificate Insurer
and
each Rating Agency immediately after the Trustee becomes aware that it is not
accessible to any of them via its website. The address of the Trustee’s Internet
website where the statement will be accessible is xxxxx://xxx.xxx.xx.xxx/xxxx.
Assistance in using the Trustee’s Internet website may be obtained by calling
the Trustee’s customer service desk at (000) 000-0000. The Trustee shall notify
each Certificateholder, the Servicer, the Depositor, the Certificate Insurer
and
each Rating Agency in writing of any change in the address or means of access
to
the Internet website where the statement is accessible.
(b) The
Trustee’s responsibility for preparing and disbursing the above information to
the Certificateholders is limited to the availability, timeliness, and accuracy
of the information derived from the Servicer. The Trustee is not responsible
for
any inaccuracies in or caused by the data provided by the Servicer.
By
each
Determination Date, the Servicer shall provide to the Trustee in electronic
form
the information needed to determine the distributions to be made pursuant to
Section 4.02 and 3.09(b)(ii) and any other information that the Servicer and
the
Trustee mutually agree, including, without limitation, the amount on deposit
in
the Certificate Account (before and after giving effect to remittances to the
Trustee on the Distribution Account Deposit Date) and the aggregate amount
of
expenses paid from amounts on deposit in the Certificate Account.
(c) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
cause to be furnished to each Person who at any time during the calendar year
was a Certificateholder, a statement containing the information in clauses
(a)(i) and (a)(ii) (with respect to principal and interest distributed) of
this
Section 4.03 aggregated for the calendar year or the applicable portion thereof
during which the Person was a Certificateholder. This obligation of the Trustee
shall be satisfied to the extent that substantially comparable information
shall
be provided by the Trustee pursuant to any requirements of the Code as from
time
to time in effect.
Section 4.04 |
Allocation
of Interest
Shortfalls.
|
For
purposes of calculating the amount of the Accrued Certificate Interest
Distribution Amount for the Offered Certificates and the Class C Certificates
for any Distribution Date, the aggregate amount of any Net Prepayment Interest
Shortfalls and any Relief Act Interest Shortfalls incurred in respect of the
Mortgage Loans for any Distribution Date (together, “Net
Interest Shortfalls”)
shall
be allocated first, to reduce the interest accrued on the Class C Certificates
in the related Interest Accrual Period up to an amount equal to one month’s
interest at the then applicable Pass-Through Rate on the Notional Amount of
such
Certificates and, thereafter, to reduce the interest accrued during the related
Interest Accrual Period on each Class of Offered Certificates, on a pro rata
basis based on, and to the extent of, one month’s interest at the then
applicable Pass-Through Rate on the Class Certificate Balance of the Class
A
Certificates or the Notional Amount of the Class A-IO Certificates, as
applicable.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount of
any
Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls incurred
in respect of the Mortgage Loans for any Distribution Date shall be allocated
first, to REMIC I Regular Interest I and to the REMIC I Regular Interests ending
with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest, and then, to REMIC I Regular Interests ending with
the
designation “A”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC II Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated to REMIC II Regular Interest LTI-A, based on, and to the extent of,
one month's interest at the then applicable respective REMIC II Remittance
Rates
on the respective Uncertificated Balance of each such REMIC II Regular
Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC III Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC III Regular Interest LTII-AA, REMIC III Regular Interest
LTII-A, and REMIC III Regular Interest LTII-ZZ, pro
rata
based
on, and to the extent of, one month's interest at the then applicable respective
REMIC III Remittance Rates on the respective Uncertificated Balance of each
such
REMIC III Regular Interest.
Section 4.05 |
Supplemental
Interest Trust.
|
(a) As
of the
Closing Date, the Supplemental Interest Trust Trustee shall establish and
maintain in the name of the Trustee a separate trust for the benefit of the
holders of the Certificates (the “Supplemental
Interest Trust”)
into
which the Depositor shall deposit $1,000. The Supplemental Interest Trust shall
hold the Interest Rate Swap Agreement. The Supplemental Interest Trust shall
include an Eligible Account, and funds on deposit therein shall be held separate
and apart from, and shall not be commingled with, any other moneys, including,
without limitation, other moneys of the Trustee or of the Supplemental Interest
Trust Trustee held pursuant to this Agreement. Amounts deposited therein shall
remain uninvested.
(b) On
each
Distribution Date, the Supplemental Interest Trust Trustee shall deposit into
the Supplemental Interest Trust amounts received from the Trustee pursuant
to
Section 4.02 of this Agreement. On each Distribution Date, the Supplemental
Interest Trust Trustee shall distribute any such amounts to the Swap Provider
pursuant to the Interest Rate Swap Agreement, first to pay any Net Swap Payment
owed to the Swap Provider for such Distribution Date, and second to pay any
Swap
Termination Payment owed to the Swap Provider.
(c) On
each
Distribution Date, the Supplemental Interest Trust Trustee shall deposit into
the Supplemental Interest Trust all amounts received from the Swap Provider.
On
each Distribution Date, following the distribution pursuant to Section 4.02
but
prior to any draws or payments under the Policy, the Supplemental Interest
Trust
Trustee shall withdraw such amounts from the Supplemental Interest Trust for
distribution to the Certificates in the following order:
(i) concurrently,
to each Class of Offered Certificates, any Unpaid Interest Amounts, including
any accrued Unpaid Interest Amounts from a prior Distribution Date, pro
rata,
based
on their respective entitlements;
(ii) to
the
Certificate Insurer any remaining amounts owed to it under the Insurance
Agreement;
(iii) to
the
Class A Certificates in reduction of the Class Certificate Balance thereof,
until the Class Certificate Balance thereof has been reduced to zero;
(iv) to
the
Class A Certificates, any remaining Net WAC Cap Carry Forward Amount on the
Class A Certificates; and
(v) any
remaining amounts to IndyMac Bank, F.S.B.
Notwithstanding
the foregoing, the aggregate amount distributed under clause (iii) above on
such
Distribution Date, when added to the cumulative aggregate amount distributed
under clause (iii) above on all prior Distribution Dates, shall not exceed
the
cumulative amount of Realized Losses incurred on the Mortgage Loans since the
Cut-off Date through the last day of the related Prepayment Period (reduced
by
the aggregate amount of Subsequent Recoveries on the Mortgage Loans received
since the Cut-off Date through the last day of the related Prepayment Period).
Any amounts that would otherwise be distributable from the Supplemental Interest
Trust on any Distribution Date under clause (iii) above, but for the foregoing
proviso and remaining after the distributions pursuant to clause (iv) above,
will be retained in the Supplemental Interest Trust and will be included in
amounts available for distribution from the Supplemental Interest Trust on
the
next succeeding Distribution Date, subject to the foregoing proviso in the
case
of amounts to be distributed under clause (iii) above.
(d) The
Supplemental Interest Trust constitutes an “outside reserve fund” within the
meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC.
It is the intention of the parties hereto that, for federal and state income
and
state and local franchise tax purposes, the Supplemental Interest Trust be
disregarded as an entity separate from the holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Supplemental
Interest Trust for federal income tax purposes, in which case it is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be treated as
a
partnership.
(e) For
federal income tax purposes, amounts paid to the Supplemental Interest Trust
on
each Distribution Date pursuant to Section 4.02 shall first be deemed paid
to
the Supplemental Interest Trust in respect of Class IO Interest to the extent
of
the amount distributable on the Class IO Interest on such Distribution Date,
and
any remaining amount shall be deemed paid to the Supplemental Interest Trust
in
respect of a Class IO Distribution Amount.
(f) The
Supplemental Interest Trust Trustee shall treat the Holders of the Offered
Certificates as having entered into a notional principal contract with the
owners of the Supplemental Interest Trust. Pursuant to each such notional
principal contract, all Holders of Offered Certificates shall be treated as
having agreed to pay, on each Distribution Date, to the owners of the
Supplemental Interest Trust an aggregate amount equal to the excess, if any,
of
(i) the amount payable on such Distribution Date on the REMIC Regular Interest
ownership of which is represented by the Offered Certificates over (ii) the
amount payable on the Offered Certificates on such Distribution Date (such
excess, a “Class
IO Distribution Amount”).
A
Class IO Distribution Amount payable from interest collections shall be
allocated pro
rata
among
the Offered Certificates based on the amount of interest otherwise payable
to
the Offered Certificates, and a Class IO Distribution Amount payable from
principal collections shall be allocated to the Class A Certificates to the
extent of the Class Certificate Balance thereof. In addition, pursuant to a
notional principal contract, the owners of the Supplemental Interest Trust
shall
be treated as having agreed to pay Net WAC Cap Carry Forward Amounts to the
Holders of the Class A Certificates in accordance with the terms of this
Agreement. Any payments to the Offered Certificates from amounts deemed received
in respect of this notional principal contract shall not be payments with
respect to a Regular Interest in a REMIC within the meaning of Code Section
860G(a)(1). However, any payment from the Offered Certificates of a Class IO
Distribution Amount shall be treated for tax purposes as having been received
by
the Holders of the Offered Certificates in respect of the REMIC Regular Interest
ownership of which is represented by the Offered Certificates, and as having
been paid by such Holders to the Supplemental Interest Trust pursuant to the
notional principal contract. Thus, each Offered Certificate shall be treated
as
representing not only ownership of a Regular Interest in REMIC IV, but also
ownership of an interest in, and obligations with respect to, a notional
principal contract.
In
the
event that the Interest Rate Swap Agreement is terminated prior to the
Distribution Date in February 2014, the Supplemental Interest Trust Trustee
shall use reasonable efforts, which may be as directed by and upon the
recommendation of a nationally-recognized investment bank or the Depositor,
and
using any Swap Termination Payments paid by the Swap Provider and deposited
in
the Supplemental Interest Trust, to appoint a successor swap provider acceptable
to the Certificate Insurer to enter into a new interest rate swap agreement
on
terms substantially similar to the Interest Rate Swap Agreement, with a
successor swap provider meeting all applicable eligibility requirements as
outlined in the Interest Rate Swap Agreement and in form and substance
acceptable to the Certificate Insurer. If the Supplemental Interest Trust
Trustee receives a Swap Termination Payment from the Swap Provider in connection
with such Swap Early Termination (as defined in the Interest Rate Swap
Agreement), the Supplemental Interest Trust Trustee will apply such Swap
Termination Payment to any upfront payment required to appoint the successor
swap provider. If the Supplemental Interest Trust Trustee is required to
pay a Swap Termination Payment to the Swap Provider in connection with such
Swap
Early Termination, the Supplemental Interest Trust Trustee will apply any
upfront payment received from the successor swap provider to pay such Swap
Termination Payment.
(g) Notwithstanding
anything contained herein, in the event that a qualified successor swap provider
is unable to be located, in accordance with Section 4.05(f) above, within 30
days after receipt by the Supplemental Interest Trust Trustee of the Swap
Termination Payment paid by the terminated Swap Provider, the Supplemental
Interest Trust Trustee shall deposit such Swap Termination Payment into a
separate, non-interest bearing trust account established by the Supplemental
Interest Trust Trustee and the Supplemental Interest Trust Trustee shall, on
each Distribution Date following receipt of such Swap Termination Payment,
withdraw from such account an amount equal to the Net Swap Payment, if any,
that
would have been paid to the Supplemental Interest Trust by the original Swap
Provider (computed in accordance with the original Interest Rate Swap Agreement,
attached hereto as Exhibit Q) and distribute such amount in accordance with
Section 4.05(c). On the Distribution Date immediately after the termination
date
of the original Interest Rate Swap Agreement, the Supplemental Interest Trust
Trustee shall withdraw any funds remaining in such account and distribute such
amount in accordance with this Agreement.
(h) The
Seller shall promptly notify the Trustee in the event that any Certificates
are
held by the Seller, the Depositor or any Affiliate. In the absence of such
notification, the Trustee on each Distribution Date may conclusively rely on
the
status of the Seller, the Depositor or any Affiliate as of the immediately
preceding Record Date.
(i) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Interest Rate Swap Agreement (including, without limitation, its obligation
to
make any payment or transfer collateral), or breaches any of its representations
and warranties thereunder, or in the event that an Event of Default, Termination
Event, or Additional Termination Event (each as defined in the Interest Rate
Swap Agreement) occurs with respect to the Interest Rate Swap Agreement, the
Supplemental Interest Trust Trustee shall immediately, but no later than the
next Business Day following such failure or breach, notify the Depositor and
the
Certificate Insurer and send any notices and make any demands, on behalf of
the
Supplemental Interest Trust, in accordance with the Interest Rate Swap
Agreement.
In
the
event that the Swap Provider’s obligations are guaranteed by a third party under
a guaranty relating to the Interest Rate Swap Agreement (such guaranty the
“Guaranty”
and
such third party the “Guarantor”),
then
to the extent that the Swap Provider fails to make any payment by the close
of
business on the day it is required to make payment under the terms of the
Interest Rate Swap Agreement, the Supplemental Interest Trust Trustee shall,
as
soon as practicable, but no later than two (2) Business Days after the Swap
Provider’s failure to pay, demand that the Guarantor make any and all payments
then required to be made by the Guarantor pursuant to such Guaranty; provided,
that the Supplemental Interest Trust Trustee shall in no event be liable for
any
failure or delay in the performance by the Swap Provider or any Guarantor of
its
obligations hereunder or pursuant to the Interest Rate Swap Agreement and the
Guaranty, nor for any special, indirect or consequential loss or damage of
any
kind whatsoever (including but not limited to lost profits) in connection
therewith.
Section 4.06 |
Tax
Treatment of Net Swap Payments and Swap Termination
Payments.
|
For
federal income tax purposes, each holder of a Class A Certificate is deemed
to
own an undivided beneficial ownership interest in a REMIC Regular Interest
and
the right to receive payments from (i) the Excess Reserve Fund Account or the
Supplemental Interest Trust in respect of any Net WAC Cap Carry Forward Amounts
and the obligation to make payments to the Supplemental Interest
Trust.
For
federal income tax purposes, the Supplemental Interest Trust Trustee will
account for payments to each Class A Certificates as follows: each Class A
Certificate will be treated as receiving their entire payment from REMIC IV
(regardless of any Swap Termination Payment or obligation under the Interest
Rate Swap Agreement) and subsequently paying their portion of any Swap
Termination Payment in respect of each such Class’s obligation under the
Interest Rate Swap Agreement. In the event that the Class A Certificates are
resecuritized in a REMIC, the obligation under the Interest Rate Swap Agreement
to pay any such Swap Termination Payment (or any shortfall in the fee to the
Swap Provider), will be made by one or more of the REMIC Regular Interests
issued by the resecuritization REMIC subsequent to such REMIC Regular Interest
receiving its full payment from the Class A Certificates. The REMIC regular
interest corresponding to a Class A Certificate will be entitled to receive
interest and principal payments at the times and in the amounts equal to those
made on the certificate to which it corresponds, except that (i) the maximum
interest rate of that REMIC Regular Interest will equal the Net WAC Cap computed
for this purpose by limiting the notional amount of the Interest Rate Swap
Agreement to the aggregate principal balance of the Mortgage Loans and (ii)
any
Swap Termination Payment will be treated as being payable solely from Total
Monthly Excess Spread. As a result of the foregoing, the amount of distributions
and taxable income on the REMIC Regular Interest corresponding to a Class A
Certificate may exceed the actual amount of distributions on the Class A
Certificate.
Section 4.07 |
The
Policy.
|
(a) If
the
Trustee determines that an Insured Amount to be covered by the Policy will
exist
for the related Distribution Date (calculated for this purpose assuming that
all
amounts due under the Interest Rate Swap Agreement are received on the
Distribution Date), the Trustee shall complete the notice in the form of Exhibit
A to the Policy (the “Notice”)
and
submit such Notice in accordance with the Policy to the Certificate Insurer
no
later than 12:00 P.M., New York City time, on the third Business Day immediately
preceding such Distribution Date, as a claim for the amount of such Insured
Amount, less amounts, if any, withdrawn from the Pool Policy Reserve Account
in
respect of such Insured Amount. In the event that all amounts due under the
Interest Rate Swap Agreement are not received on the Distribution Date, the
Trustee shall include such shortfalls in a Notice to the Certificate Insurer
relating to such Distribution Date.
(b) The
Trustee shall establish and maintain the Insurance Account on behalf of the
Holders of the Offered Certificates over which the Trustee shall have the
exclusive control and sole right of withdrawal. Upon receipt of an Insured
Amount from the Certificate Insurer on behalf of the Holders of the Offered
Certificates or withdrawn from the Pool Policy Reserve Account, the Trustee
shall deposit such Insured Amount in the Insurance Account and distribute such
amount only for purposes of payment to the Offered Certificates of the Insured
Amount for which a claim was made and such amount may not be applied to satisfy
any costs, expenses or liabilities of the Servicer, the Seller, the Depositor,
the Trustee or the Trust Fund or to pay any other Class of Certificates. Amounts
paid under the Policy or withdrawn from the Pool Policy Reserve Account, to
the
extent needed to pay the Insured Amount, shall be transferred to the
Distribution Account on the related Distribution Date and disbursed by the
Trustee to the Holders of the Offered Certificates in accordance with Section
4.02. It shall not be necessary for such payments to be made by checks or wire
transfers separate from the checks or wire transfers used to pay other
distributions to the Holders of the Offered Certificates with other funds
available to make such payment. However, the amount of any payment of principal
on the Class A Certificates or of interest on the Offered Certificates to be
paid from funds transferred from the Insurance Account shall be noted as
provided in paragraph (c) below and in the statement to be furnished to Holders
of the Offered Certificates pursuant to Section 4.03. Funds held in the
Insurance Account shall not be invested. Any funds remaining in the Insurance
Account on the first Business Day following the later of (i) the related
Distribution Date or (ii) the date received by the Trustee, shall be returned
to
the Certificate Insurer pursuant to the written instructions of the Certificate
Insurer by the end of such Business Day.
(c) The
Trustee shall keep a complete and accurate record of the amount of interest
paid
in respect of the Offered Certificates and principal paid in respect of the
Class A Certificates from moneys received under the Policy. The Certificate
Insurer shall have the right to inspect such records at reasonable times during
normal business hours upon one Business Day’s prior notice to the
Trustee.
(d) In
the
event that the Trustee has received a certified copy of an order of the
appropriate court that any Insured Amount has been voided in whole or in part
as
a preference payment under applicable bankruptcy law, the Trustee shall so
notify the Certificate Insurer, shall comply with the provisions of the Policy
to obtain payment by the Certificate Insurer of such Preference Amount in the
amount of such voided Insured Amount, and shall, at the time it provides notice
to the Certificate Insurer, notify, by mail the Holders of the Offered
Certificates that, in the event any Holder’s Insured Amount is so recovered,
such Holder of an Offered Certificate will be entitled to payment pursuant
to
the Policy, a copy of which shall be made available through the Trustee or
the
Certificate Insurer, and the Trustee shall furnish to the Certificate Insurer,
its records evidencing the payments which have been made by the Trustee and
subsequently recovered from the Holders of the Offered Certificates, and dates
on which such payments were made.
(e) The
Trustee shall promptly notify the Certificate Insurer of any proceeding or
the
institution of any action, of which a Responsible Officer of the Trustee has
actual knowledge, seeking the avoidance as a preferential transfer under
applicable bankruptcy, insolvency, receivership or similar law (a “Preference
Amount”)
of any
distribution made with respect to the Offered Certificates. Each Holder of
an
Offered Certificate, by its purchase of such Offered Certificate, the Servicer,
the Depositor and the Trustee agree 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 Amount direct all matters relating
to
such Preference Amount, including, without limitation, (i) the direction of
any
appeal of any order relating to such Preference Amount and (ii) the posting
of
any surety or performance bond pending any such appeal. In addition and without
limitation of the foregoing, the Certificate Insurer shall be subrogated to,
and
each Holder of an Offered Certificate and the Trustee hereby delegates and
assigns to the Certificate Insurer, to the fullest extent permitted by law,
the
rights of the Trustee and each Holder of an Offered Certificate in the conduct
of any such Preference Amount, including, without limitation, all rights of
any
party to any adversary proceeding or action with respect to any court order
issued in connection with any such Preference Amount.
(f) The
Trustee shall promptly, upon retirement of the Offered Certificates, furnish
to
the Certificate Insurer a notice of such retirement, and, upon retirement of
the
Offered Certificates and the expiration of the term of the Policy, surrender
the
Policy to the Certificate Insurer for cancellation.
(g) The
Trustee will hold the Policy in trust as agent for the Holders of the Offered
Certificates for the purpose of making claims thereon and distributing the
proceeds thereof. Neither the Policy nor the amounts paid on the Policy will
constitute part of the Trust Fund created by this Agreement. Each Holder of
an
Offered Certificate, by accepting its Offered Certificate, appoints the Trustee
as attorney in fact for the purpose of making claims on the Policy.
(h) Anything
herein to the contrary notwithstanding, any payment with respect to principal
of
the Class A Certificates or interest on the Offered Certificates which is made
with moneys received pursuant to the terms of the Policy shall not be considered
payment of the Offered Certificates from the Trust Fund. The Depositor and
the
Trustee acknowledge, and each Holder by its acceptance of an Offered Certificate
agrees, that without the need for any further action on the part of the
Certificate Insurer, the Depositor, the Servicer or the Trustee (a) to the
extent the Certificate Insurer makes payments, directly or indirectly, on
account of principal of the Class A Certificates or interest on the Offered
Certificates to the Holders of such Offered Certificates, the Certificate
Insurer will be fully subrogated to, and each Holder of an Offered Certificate
and the Trustee hereby delegate and assign to the Certificate Insurer, to the
fullest extent permitted by law, the rights of such Holders to receive such
principal and interest from the Trust Fund, including, without limitation,
any
amounts due to the Holders of the Offered Certificates in respect of securities
law violations arising from the offer and sale of the Offered Certificates
and
(b) the Certificate Insurer shall be paid such amounts from the sources and
in
the manner provided herein for the payment of such amounts and as provided
in
this Agreement. The Trustee and the Servicer shall cooperate in all respects
with any reasonable request by the Certificate Insurer for action to preserve
or
enforce the Certificate Insurer’s rights or interests under this Agreement
without limiting the rights or affecting the interests of the Holders as
otherwise set forth herein.
(i) By
accepting its Offered Certificate, each Holder of an Offered Certificate agrees
that, unless a Certificate Insurer Default exists, the Certificate Insurer
shall
be deemed to be the Holder of the Offered Certificate for all purposes (other
than with respect to the receipt of payment on the Offered Certificates) and
shall have the right to exercise all rights (including, without limitation,
voting rights) of the Holders of the Offered Certificates under this Agreement
and under the Offered Certificates without any further consent of the Holders
of
the Offered Certificates and such Holders may not exercise any such rights
without the prior written consent of the Certificate Insurer. All notices,
statement reports, certificates or opinions required by this Agreement to be
sent to any Holders of Offered Certificates shall also be sent to the
Certificate Insurer.
Section 4.08 |
Certain
Matters Relating to the Determination of
LIBOR.
|
Until
all
of the Class A Certificates are paid in full, the Trustee will at all times
retain at least four Reference Banks for the purpose of determining LIBOR with
respect to each Interest Determination Date. The Servicer initially shall
designate the Reference Banks. Each “Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, shall not control, be controlled by or be
under common control with, the Trustee and shall have an established place
of
business in London. If any such Reference Bank should be unwilling or unable
to
act as such or if the Servicer should terminate its appointment as Reference
Bank, the Servicer shall promptly appoint another Reference Bank. The Trustee
shall have no liability or responsibility to any Person for (i) the selection
of
any Reference Bank for purposes of determining LIBOR or (ii) any inability
to
retain at least four Reference Banks that is caused by circumstances beyond
its
reasonable control.
The
Pass-Through Rate for each Class of Class A Certificates for each Interest
Accrual Period shall be determined by the Trustee on each LIBOR Determination
Date so long as the Class A Certificates are outstanding on the basis of LIBOR
and the respective formulae appearing in footnotes corresponding to the Class
A
Certificates in the table relating to the Certificates in the Preliminary
Statement. The Trustee shall not have any liability or responsibility to any
Person for its inability, following a good-faith reasonable effort, to obtain
quotations from the Reference Banks or to determine the arithmetic mean referred
to in the definition of LIBOR, all as provided for in this Section 4.08 and
the
definition of LIBOR. The establishment of LIBOR and each Pass-Through Rate
for
the Class A 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 4.09 |
Distributions
and Allocation of Realized Losses to the REMIC I Regular
Interests.
|
(a) On
each
Distribution Date, the following amounts, in the following order, shall be
distributed by REMIC I to REMIC II on account of the REMIC I Regular Interests
or withdrawn from the Distribution Account and distributed to the Holders of
the
Class R Certificates (in respect of the Class R-I Interest), as the case may
be:
(i) to
Holders of each of REMIC I Regular Interest I, REMIC I Regular Interest I-1-A
through I-84-B, pro
rata,
in an
amount equal to (A) Uncertificated Interest for such REMIC I Regular Interests
for such Distribution Date, plus (B) any amounts payable in respect thereof
remaining unpaid from previous Distribution Dates; and
(ii) to
the
extent of amounts remaining after the distributions made pursuant to immediately
preceding clause above, payments of principal shall be allocated as follows:
first, to REMIC I Regular Interest I until the Uncertificated Balance is reduced
to zero and second, to REMIC I Regular Interests I-1-A through I-84-B starting
with the lowest numerical denomination until the Uncertificated Balance of
each
such REMIC I Regular Interest is reduced to zero, provided that, for REMIC
I
Regular Interests with the same numerical denomination, such payments of
principal shall be allocated pro
rata
between
such REMIC I Regular Interests.
(b) On
each
Distribution Date, the following amounts, in the following order, shall be
distributed by REMIC II to REMIC III on account of the REMIC II Regular
Interests or withdrawn from the Distribution Account and distributed to the
Holders of the Class R Certificates (in respect of the Class R-II Interest),
as
the case may be:
(i) to
the
Holders of REMIC II Regular Interest LTI-IO, in an amount equal to (A) accrued
Uncertificated Interest for such REMIC II Regular Interest for such Distribution
Date, plus
(B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates;
(ii) to
Holders of REMIC II Regular Interest LTI-AIO and REMIC II Regular Interest
LTI-A, on a pro
rata basis,
in
an amount equal to (A) the Uncertificated Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates;
(iii) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (A) and (B) above, allocated as follows:
(a) first
to
the Holders of REMIC II Regular Interest LTI-A, until the Uncertificated Balance
of such REMIC II Regular Interest is reduced to zero;
(b) second,
to the Holders of REMIC II Regular Interest LTI-AIO until the Uncertificated
Balance of such REMIC II Regular Interest is reduced to zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-II Interest).
(c) On
each
Distribution Date, the following amounts, in the following order, shall be
distributed by REMIC III to REMIC IV on account of the REMIC III Regular
Interests or withdrawn from the Distribution Account and distributed to the
Holders of the Class R Certificates (in respect of the Class R-III Interest),
as
the case may be:
(i) first,
to
the Holders of REMIC III Regular Interest LTII-IO, in an amount equal to (A)
accrued Uncertificated Interest for such REMIC III Regular Interest for such
Distribution Date, plus
(B) any
amounts in respect thereof remaining unpaid from previous Distribution
Dates;
(ii) second,
to the Holders of REMIC III Regular Interest LTII-AIO in an amount equal to
(A)
the Uncertificated Interest for such Distribution Date, plus (B) any amounts
in
respect thereof remaining unpaid from previous Distribution Dates and then,
to
Holders of REMIC III Regular Interest LTII-AA, REMIC III Regular Interest
LTII-A, and REMIC III Regular Interest LTII-ZZ, on a pro
rata basis,
in
an amount equal to (A) the Uncertificated Interest for such Distribution Date,
plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates;
(iii) to
the
Holders of REMIC III Regular Interests, in an amount equal to the remainder
of
the Available Funds for such Distribution Date after the distributions made
pursuant to clauses (i) and (ii) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC III Regular Interest LTII-AA, until
the
Uncertificated Balance of such REMIC III Regular Interest is reduced to
zero;
(b) 2.00%
of
such remainder (other than amounts payable under clause (iii) below) first,
to
the Holders of REMIC III Regular Interest LTII-A, 1.00% of and in the same
proportion as principal payments are allocated to the Corresponding Certificate
until the Uncertificated Balance of such REMIC III Regular Interest is reduced
to zero, and second, to the Holders of REMIC III Regular Interest LTII-ZZ,
until
the Uncertificated Balance of such REMIC III Regular Interest is reduced to
zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-III Interest).
Notwithstanding
the priorities and amounts of distribution of funds pursuant to this Section
4.09, actual distributions of the Available Funds shall be made only in
accordance with Section 4.02.
(d) With
respect to the REMIC I Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated shall be allocated by the Trustee on each Distribution
Date first, to REMIC I Regular Interest I until the Uncertificated Balance
has
been reduced to zero, and second, to REMIC I Regular Interest I-1-A through
REMIC I Regular Interest I-84-B, starting with the lowest numerical denomination
until such REMIC I Regular Interest has been reduced to zero, provided that,
for
REMIC I Regular Interests with the same numerical denomination, such Realized
Losses shall be allocated pro
rata
between
such REMIC I Regular Interests.
(e) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date to Uncertificated Interest payable to the REMIC II Regular
Interest LTI-A.
(f) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date to the following REMIC III Regular Interests in the specified
percentages, as follows: first, to Uncertificated Interest payable to the REMIC
III Regular Interest LTII-AA and REMIC III Regular Interest LTII-ZZ up to an
aggregate amount equal to the REMIC III Interest Loss Allocation Amount, 98%
and
2%, respectively and second, to the Uncertificated Balances of the REMIC III
Regular Interest LTII-AA and REMIC III Regular Interest LTII-ZZ up to an
aggregate amount equal to the REMIC III Principal Loss Allocation Amount, 98%
and 2%, respectively.
Section 4.10 |
The
Pool Policy Reserve Account.
|
The
Trustee shall establish and maintain the Pool Policy Reserve Account on behalf
of the Pool Insurer. The Pool Policy Reserve Account shall be an Eligible
Account. On the Closing Date, the Trustee shall deposit $2,194,971
into the
Pool Policy Reserve Account.
The
Trustee shall invest amounts on deposit in the Pool Policy Reserve Account
in
Permitted Investments as directed in writing by the Pool Insurer prior to the
Deferred Premium Release Date. Any investment earnings shall be deposited in
the
Pool Policy Reserve Account.
All
amounts on deposit in the Pool Policy Reserve Account shall be released by
the
Trustee to the Pool Insurer on the Deferred Premium Release Date by wire
transfer in immediately available funds to an account designated in writing
by
the Pool Insurer (such amount, the “Deferred
Premium Amount”).
If at
any time the Pool Insurer ceases to be in material compliance with the Pool
Policy, the Insured (as defined in the Pool Policy) (at the direction of the
Certificate Insurer) or the Certificate Insurer shall give written notice
thereof to the Pool Insurer. To the extent that the Pool Insurer has not cured
any such failure to be in material compliance within thirty (30) days after
receipt of such notice (to the extent such failure can be cured), the Deferred
Premium Amount shall no longer be payable to the Pool Insurer and all amounts
on
deposit in the Pool Policy Reserve Account shall be available to make Insured
Payments following such date (the “MBIA
Reserve Account Release Date”).
The
Trustee on each Distribution Date on and after the MBIA Reserve Account Release
Date shall withdraw, to the extent of funds therein, an amount equal to the
Insured Amount, if any, for such Distribution Date and deposit such amounts
in
the Insurance Account. On the Distribution Date on which the Class Certificate
Balance of the Class A Certificates has been reduced to zero, the Trustee shall
release any amounts remaining on deposit in the Pool Policy Reserve Account
to
the Certificate Insurer by wire transfer in immediately available funds to
an
account designated in writing by the Certificate Insurer and the Certificate
Insurer shall have the right to direct the Trustee to terminate the Pool Policy.
The Servicer and the Trustee shall promptly notify the Certificate Insurer
of
any failure of the Pool Insurer to comply with the Pool Policy.
Section 4.11 |
Supplemental
Interest Trust Credit Support Collateral Account.
|
The
Supplemental Interest Trust Trustee is hereby directed to perform the
obligations of the Custodian (as defined in the Credit Support Annex). The
Supplemental Interest Trust Trustee is hereby directed by the Depositor to
comply with the terms and provisions of the Credit Support Annex
On
or
before the Closing Date, the Supplemental Interest Trust Trustee shall establish
the Credit Support Collateral Account. The Credit Support Collateral Account
shall be controlled by the Supplemental Interest Trust Trustee. The Swap
Provider shall be the beneficial owner of the Credit Support Collateral
Account.
Any
collateral (whether in the form of cash or securities, the “Posted
Collateral”)
posted
by the Swap Provider to the Supplemental Interest Trust Trustee in connection
with the Credit Support Annex shall be deposited into the Credit Support
Collateral Account. All collateral and earnings thereon on deposit in the Credit
Support Collateral Account shall be maintained and applied in accordance with
the Credit Support Annex.
Cash
collateral posted by the Swap Provider in accordance with the Credit Support
Annex shall, at the written direction of the Swap Provider to the Supplemental
Interest Trust Trustee, be invested in overnight (or redeemable within two
Local
Business Days of demand) Permitted Investments rated at least (x) AAAm or AAAm-G
by S&P and (y) Prime-1 by Xxxxx’x or Aaa by Xxxxx’x (unless (x) an Event of
Default or an Additional Termination Event (as those terms are defined in the
Interest Rate Swap Agreement) has occurred with respect to which the Swap
Provider is the defaulting or sole Affected Party (as defined in the
Interest Rate Swap Agreement) or (y) an Early Termination Date (as defined
in
the Interest Rate Swap Agreement) has been designated, in which case such Cash
collateral shall be held uninvested). In the absence of written instructions
to
the Supplemental Interest Trust Trustee, amounts on deposit in the Credit
Support Collateral Account shall remain uninvested. All amounts earned on
amounts on deposit in the Credit Support Collateral Account (whether cash
collateral or securities) shall be taxable to the Swap Provider. Any losses
on
such investments shall be deposited in the Credit Support Collateral Account
by
the Swap Provider out of its own funds immediately as realized. The Trustee
shall not be liable for the selection of investments or investment losses
incurred thereon.
To
the
extent the Supplemental Interest Trust Trustee is required to return any of
the
Posted Collateral to the Swap Provider under the terms of the Credit Support
Annex, the Supplemental Interest Trust Trustee shall return such collateral
in
accordance with the terms of the Credit Support Annex.
ARTICLE
V
THE
CERTIFICATES
Section 5.01 |
The
Certificates.
|
The
Certificates shall be substantially in the forms attached hereto as exhibits.
The Certificates shall be issuable in registered form, in minimum denominations,
representing an original principal amount of $100,000 and integral multiples
of
$1,000 in excess thereof (except that one Certificate in each Class may be
issued in a different amount that must exceed the applicable minimum
denomination) and aggregate denominations per Class set forth in REMIC
IV.
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:
(i) by
wire
transfer in immediately available funds to the account of the Holder at a bank
or other entity having appropriate facilities therefor, if the Holder has so
notified the Trustee at least five (5) Business Days before the related Record
Date; or
(ii) by
check
mailed by first class mail to the Certificateholder at the address of such
holder appearing in the Certificate Register.
The
Trustee shall execute the Certificates by manual or facsimile signature of
an
authorized officer. Certificates bearing the manual or facsimile signatures
of
individuals who were, at the time such signatures were affixed, authorized
to
sign on behalf of the Trustee shall bind the Trustee, notwithstanding that
such
individuals or any of them have ceased to be so authorized before the
countersignature and delivery of any such Certificates or did not hold such
offices at the date of such Certificate. No Certificate shall be entitled to
any
benefit under this Agreement, or be valid for any purpose, unless countersigned
by the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly executed and delivered hereunder. All Certificates
shall be dated the date of their countersignature. On the Closing Date, the
Trustee shall countersign the Certificates to be issued at the direction of
the
Depositor, or any affiliate thereof.
The
Depositor shall provide to the Trustee, on a continuous basis, an adequate
inventory of Certificates to facilitate transfers.
Section 5.02 |
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
(a) The
Trustee shall maintain, in accordance with Section 5.06, a Certificate Register
for the Trust Fund in which, subject to subsections (b) and (c) below and to
such reasonable regulations as it may prescribe, the Trustee shall provide
for
the registration of Certificates and of transfers and exchanges of Certificates
as herein provided. Upon surrender for registration of transfer of any
Certificate, the Trustee shall execute and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates
are
so surrendered for exchange, the Trustee shall execute, countersign and deliver
the Certificates that the Certificateholder making the exchange is entitled
to
receive. A written instrument of transfer in form satisfactory to the Trustee
duly executed by the Holder or his attorney duly authorized in writing shall
accompany every Certificate presented or surrendered for registration of
transfer or exchange. In addition, the Holder of the Class R Certificates may
exchange, in the manner described above, such Class R Certificate for three
separate certificates, each representing such holder’s respective Percentage
Interest in the Class R-I Interest, the Class R-II Interest, the Class R-III
Interest and the Class R-IV Interest that was evidenced by the Class R
Certificate being exchanged.
No
service charge to the Certificateholders shall be made for any registration
of
transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled and subsequently destroyed by the Trustee in accordance with the
Trustee’s customary procedures.
(b) No
transfer of a Private Certificate shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under said Act and any applicable state securities laws. In the event that
such
a transfer of a Private Certificate is to be made without registration or
qualification (other than in connection with (i) the initial transfer of any
such Certificate by the Depositor to an Affiliate thereof, (ii) the transfer
of
any such Class C, Class P or Residual Certificate to the applicable issuer
or
indenture trustee under the Indenture or (iii) a transfer of any such Class
C,
Class P or Residual Certificate from the applicable issuer or indenture trustee
under the Indenture to the Depositor or an Affiliate thereof), but in reliance
on an exemption from the Securities Act and any applicable state securities
laws, to assure compliance with the Securities Act and any applicable state
securities laws, the Certificateholder desiring to effect the transfer shall
certify to the Trustee in writing the facts surrounding the transfer in
substantially the form of Exhibit J (the “Transferor
Certificate”)
and
either (i) deliver to the Trustee a letter in substantially the form of Exhibit
L (the “Rule
144A Letter”)
or
(ii) deliver to the Trustee at the expense of the transferor an Opinion of
Counsel that the transfer may be made without registration under the Securities
Act. The Depositor shall provide to any Holder of a Private Certificate and
any
prospective transferee designated by the Holder of a Private Certificate,
information regarding the related Certificates and the Mortgage Loans and any
other information necessary to satisfy the condition to eligibility in Rule
144A(d)(4) for transfer of the Certificate without registration thereof under
the Securities Act pursuant to the registration exemption provided by Rule
144A.
The Trustee and the Servicer shall cooperate with the Depositor in providing
the
Rule 144A information referenced in the preceding sentence, including providing
to the Depositor such information regarding the Certificates, the Mortgage
Loans
and other matters regarding the Trust Fund the Depositor reasonably requests
to
meet its obligation under the preceding sentence. Each Holder of a Private
Certificate desiring to effect a transfer shall, and does hereby agree to,
indemnify the Trustee, the Depositor, the Seller, and the Servicer against
any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No
transfer of an ERISA-Restricted Certificate shall be made unless the Trustee
shall have received either:
(i) a
representation from the transferee of such Certificate acceptable to and in
form
and substance satisfactory to the Trustee (if the Certificate is a Private
Certificate, the requirement is satisfied only by the Trustee’s receipt of a
representation letter from the transferee substantially in the form of Exhibit
L, and if the Certificate is a Residual Certificate, the requirement is
satisfied only by the Trustee’s receipt of a Transfer Affidavit from the
transferee substantially in the form of Exhibit I), to the effect that (x)
the
transferee is not an employee benefit plan subject to Section 406 of ERISA
or a
plan or arrangement subject to Section 4975 of the Code, or a Person acting
on
behalf of any such plan or arrangement or using the assets of any such plan
or
arrangement to effect the transfer, or (y) if the ERISA-Restricted Certificate
is not a Class C, Class P or Residual Certificate and has been the subject
of an
ERISA-Qualifying Underwriting and the purchaser is an insurance company, a
representation that the purchaser is an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE
95-60”)),
and
that the purchase and holding of such Certificates are covered under Sections
I
and III of PTCE 95-60; or
(ii) in
the
case of any ERISA-Restricted Certificate presented for registration in the
name
of an employee benefit plan subject to ERISA, or a plan or arrangement subject
to Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other Person acting on behalf
of any such plan or arrangement or using such plan’s or arrangement’s assets, an
Opinion of Counsel satisfactory to the Trustee and the Servicer, which Opinion
of Counsel shall not be an expense of the Trustee, the Servicer or the Trust
Fund, addressed to the Trustee, to the effect that the purchase or holding
of
such ERISA-Restricted Certificate will not result in a nonexempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Trustee or the Servicer to any obligation in addition to those expressly
undertaken in this Agreement or to any liability.
For
purposes of the preceding sentence, neither an Opinion of Counsel nor any
certification shall be required in connection with (i) the initial transfer
of
any such Certificate by the Depositor to an Affiliate thereof, (ii) the transfer
of any such Class C, Class P or Residual Certificate to the applicable issuer
or
indenture trustee under the Indenture or (iii) a transfer of any such Class
C,
Class P or Residual Certificate from the issuer or indenture trustee under
the
Indenture to the Depositor or an Affiliate thereof (in which case, the Depositor
or any Affiliate thereof shall have deemed to have represented that it is not
using the assets of any plan subject to Section 406 of ERISA or plan or
arrangement subject to Section 4975 of the Code) and the Trustee shall be
entitled to conclusively rely upon a representation (which, upon the request
of
the Trustee, shall be a written representation) from the Depositor of the status
of such transferee as an Affiliate of the Depositor. In addition, with respect
to transfers of an ERISA-Restricted Certificate (that is not a Residual
Certificate) other than as described in the preceding sentence, if the
representation letter or Opinion of Counsel referred to in the preceding
sentence is not furnished, the appropriate representation in clause (i) shall
be
deemed to have been made to the Trustee by the transferee’s (including an
initial acquirer’s) acceptance of the ERISA-Restricted Certificates. If any of
the provisions in the preceding sentences are violated, the attempted transfer
or acquisition shall be void.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of an Offered Certificate or any interest therein, shall be deemed to have
represented, by virtue of its acquisition or holding of such Certificate, or
interest therein, that either (i) it is not a Plan or (ii) (A) it is an
"accredited investor" as defined in Rule 501(a)(1) of Regulation D issued under
the Securities Act and (B) the acquisition and holding of such Certificate
and
the separate right to receive payments from the Supplemental Interest Trust
are
eligible for the exemptive relief available under Prohibited Transaction Class
Exemption (“PTCE”)
84-14,
90-1, 91-38, 95-60 or 96-23.
To
the
extent permitted under applicable law (including ERISA), the Trustee shall
not
be liable to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 5.02(b) or for making
any payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the transfer
was registered by the Trustee in accordance with the foregoing
requirements.
No
transfer of a Class C Certificate shall be made unless the transferee of
such Certificate has provided to the Trustee a correct, complete and duly
executed tax certification form (i.e., U.S. Internal Revenue Service Form X-0,
X-0XXX, X-0XXX, X-0XXX or W-8ECI, as applicable (or any successor form thereto),
together with appropriate attachments) as a condition to such transfer and
agrees to update such tax certification form (i) upon expiration of any such
tax
certification form, (ii) as required under then applicable U.S. Treasury
regulations and (iii) promptly upon learning that any tax certification form
previously provided has become obsolete or incorrect. Upon receipt of any such
tax certification form from a transferee of any Class C Certificate, the Trustee
shall provide such tax certification form to the Supplemental Interest Trust
Trustee. The Supplemental Interest Trust Trustee shall provide such tax
certification form to the Swap Provider.
Each
Holder of a Class C Certificate and each transferee thereof shall be deemed
to
have consented to the Trustee and the Supplemental Interest Trust Trustee
forwarding to the Swap Provider any such tax certification form it has provided
and updated in accordance with these transfer restrictions. Any purported sales
or transfers of any Class C Certificate to a transferee which does not comply
with these requirements shall be deemed null and void under this
Agreement.
The
Supplemental Interest Trust Trustee and the Trustee shall not be liable for
the
content or truthfulness of any such tax certification provided to it. The
Supplemental Interest Trust Trustee and the Trustee shall only be required
to
forward any tax certification received by it to the Swap Provider at the last
known address provided to it, and shall not be liable for the receipt of such
tax certification by the Swap Provider, nor any failure of the Swap Provider
to
process such certification or to take any action as required under the
respective Interest Rate Swap Agreement or under applicable law. The
Supplemental Interest Trust Trustee and the Trustee shall have no duty to take
action to correct any misstatement or omission in any tax certification provided
to it and forwarded to the Swap Provider.
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee shall
have
been furnished with an affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form of Exhibit I (subject
to
the limitations with respect thereto as set forth in Section
5.02(b)).
(iii) Subject
to the limitations set forth in Section 5.02(b), each Person holding or
acquiring any Ownership Interest in a Residual Certificate shall
agree:
(A)
to
obtain
a Transfer Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate;
(B)
to
obtain
a Transfer Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Residual Certificate;
and
(C)
not
to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other Person
if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of this Section 5.02(c) shall be absolutely null and
void and shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in violation of
this
Section 5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall not be liable to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time
it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate in this Section 5.02(c)
shall cease to apply (and the applicable portions of the legend on a Residual
Certificate may be deleted) with respect to Transfers occurring after delivery
to the Trustee of an Opinion of Counsel, which Opinion of Counsel shall not
be
an expense of the Trust Fund, the Trustee, the Seller or the Servicer, to the
effect that the elimination of such restrictions will not cause the Trust Fund
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or any other Person. The Opinion of Counsel shall be
accompanied by written notification from each Rating Agency that the removal
of
the restriction will not cause the Rating Agency to downgrade its ratings of
the
Certificates (determined without regard to the Policy). Each Person holding
or
acquiring any Ownership Interest in a Residual Certificate hereby consents
to
any amendment of this Agreement that, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and
(b)
to provide for a means to compel the Transfer of a Residual Certificate that
is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 5.02 in connection with transfer shall be at the expense of the
parties to such transfers.
(e) Except
as
provided below, the Book-Entry Certificates shall at all times remain registered
in the name of the Depository or its nominee and at all times:
(i) registration
of the Certificates may not be transferred by the Trustee except to another
Depository;
(ii) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Book-Entry
Certificates;
(iii) ownership
and transfers of registration of the Book-Entry Certificates on the books of
the
Depository shall be governed by applicable rules established by the
Depository;
(iv) the
Depository may collect its usual and customary fees, charges, and expenses
from
its Depository Participants;
(v) the
Trustee shall deal with the Depository, Depository Participants and indirect
participating firms as representatives of the Certificate Owners of the
Book-Entry Certificates for purposes of exercising the rights of holders under
this Agreement, and requests and directions for and votes of such
representatives shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; and
(vi) the
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing the Certificate Owner. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners it represents
or of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures.
If
(x)(i)
the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor, or
(y)
after
the occurrence of an Event of Default, Certificate Owners representing at least
51% of the Certificate Balance of the Book-Entry Certificates together advise
the Trustee and the Depository through the Depository Participants in writing
that the continuation of a book-entry system through the Depository is no longer
in the best interests of the Certificate Owners, then the Trustee shall notify
all Certificate Owners, through the Depository, of the occurrence of any such
event and of the availability of definitive, fully-registered Certificates
(the
“Definitive
Certificates”)
to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Servicer, the Depositor or the Trustee shall be liable
for any delay in delivery of such instruction, and each may conclusively rely
on, and shall be protected in relying on, such instructions. The Servicer shall
provide the Trustee with an adequate inventory of certificates to facilitate
the
issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates, all references herein to obligations imposed upon
or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates, and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided, that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
Section 5.03 |
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(a)
any mutilated Certificate is surrendered to the Trustee, or (b) the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Certificate and the Servicer, the Certificate Insurer and the Trustee receive
the security or indemnity required by them to hold each of them harmless, then,
in the absence of notice to the Trustee that the Certificate has been acquired
by a Protected Purchaser, and if the requirements of Section 8-406 of the UCC
are met and subject to Section 8-405 of the UCC, the Trustee shall execute,
countersign and deliver, in exchange for or in lieu of any mutilated, destroyed,
lost or stolen Certificate, a new Certificate of like Class, tenor and
Percentage Interest. In connection with the issuance of any new Certificate
under this Section 5.03, the Trustee may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. Any replacement Certificate issued pursuant to this Section
5.03 shall constitute complete and indefeasible evidence of ownership, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
is
found at any time.
Section 5.04 |
Persons
Deemed Owners.
|
The
Servicer, the Trustee, the Certificate Insurer and any agent of the Servicer,
the Certificate Insurer or the Trustee may treat the Person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Servicer, the Trustee,
the
Certificate Insurer
or any
agent of the Servicer, the Certificate Insurer or the Trustee shall be affected
by any notice to the contrary.
Section 5.05 |
Access
to List of Certificateholders’ Names and
Addresses.
|
If
three
or more Certificateholders and/or Certificate Owners (a) request such
information in writing from the Trustee, (b) state that those Certificateholders
and/or Certificate Owners desire to communicate with other Certificateholders
and/or Certificate Owners with respect to their rights under this Agreement
or
under the Certificates and (c) provide a copy of the communication that those
Certificateholders and/or Certificate Owners propose to transmit, or if the
Depositor, the Certificate Insurer or Servicer requests such information in
writing from the Trustee, then the Trustee shall, within ten (10) Business
Days
after the receipt of the request, provide the Depositor, the Servicer, the
Certificate Insurer or those Certificateholders and/or Certificate Owners at
the
recipients’ expense the most recent list of the Certificateholders of the Trust
Fund held by the Trustee. The Depositor and every Certificateholder, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable because of the disclosure of any such information as to the list
of
the Certificateholders and/or Certificate Owners hereunder, regardless of the
source from which the information was derived.
Section 5.06 |
Maintenance
of Office or Agency.
|
The
Certificate Registrar will maintain at its expense an office or agency in the
United States. Currently, that office is located at DB Services Tennessee,
000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Transfer Unit,
where Certificates may be surrendered for registration of transfer or exchange.
The Certificate Registrar will give prompt written notice to the Trustee, the
Certificateholders and the Certificate Insurer of any change in the location
of
its office or agency.
ARTICLE
VI
The
Depositor and the Servicer
Section 6.01 |
Respective
Liabilities of the Depositor and the
Servicer.
|
The
Depositor and the Servicer shall each be liable in accordance herewith only
to
the extent of the obligations specifically and respectively imposed upon and
undertaken by them herein.
Section 6.02 |
Merger
or Consolidation of the Depositor or the
Servicer.
|
The
Depositor and the Servicer will each keep in full effect its existence, rights
and franchises as a corporation or federal savings bank, as the case may be,
under the laws of the United States or under the laws of one of the states
thereof and will each obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its respective duties under this
Agreement.
Any
Person into which the Depositor or the Servicer may be merged or consolidated,
or any Person resulting from any merger or consolidation to which the Depositor
or the Servicer shall be a party, or any person succeeding to the business
of
the Depositor or the Servicer, shall be the successor of the Depositor or the
Servicer, as the case may be, hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The successor or surviving Person to
the
Servicer must be qualified to sell mortgage loans to, and to service mortgage
loans on behalf of, FNMA or FHLMC; provided, however, that the successor
Servicer shall satisfy all the requirements of Section 7.02 with respect to
the
qualifications of a successor Servicer and such merger, conversion or
consolidation could not be reasonably expected to result in a Material Adverse
Change (as defined in the Insurance Agreement) with respect to the Servicer
unless approved by the Certificate Insurer.
Section 6.03 |
Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others.
|
None
of
the Depositor, the Seller, the Servicer or any of the directors, officers,
employees, or agents of the Depositor, the Seller or the Servicer shall be
liable to the Certificateholders (other than to the extent set forth in Section
4.01(d)) for any action taken or for refraining from taking any action in good
faith pursuant to this Agreement, or for errors in judgment. This provision
shall not protect the Depositor, the Seller, the Servicer, or any such person
against any breach of representations or warranties made by it herein or protect
the Depositor, the Seller, the Servicer, or any such person from any liability
that would otherwise be imposed for willful misfeasance, bad faith, or gross
negligence in the performance of duties or because of reckless disregard of
obligations and duties hereunder.
The
Depositor, the Seller, the Servicer and any director, officer, employee, or
agent of the Depositor, the Seller, or the Servicer may rely in good faith
on
any document of any kind prima facie
properly
executed and submitted by any Person respecting any matters arising
hereunder.
The
Depositor, the Seller, the Servicer and any director, officer, employee, or
agent of the Depositor, the Seller or the Servicer shall be indemnified by
the
Trust Fund for any loss, liability, or expense incurred in connection with
any
audit, controversy, or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement or the Certificates,
other than any loss, liability, or expense related to any specific Mortgage
Loans (except any loss, liability, or expense otherwise reimbursable pursuant
to
this Agreement) and any loss, liability, or expense incurred because of willful
misfeasance, bad faith, or gross negligence in the performance of duties
hereunder or because of reckless disregard of duties hereunder.
None
of
the Depositor, the Seller or the Servicer shall be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that any of the Depositor, the Seller
or the Servicer may in its discretion undertake any such legal action that
it
may deem appropriate in respect of this Agreement and the rights and duties
of
the parties hereto and interests of the Trustee and the Certificateholders
hereunder or with respect to the Mortgage Loans. In such event, the legal
expenses and costs of such action and any liability resulting therefrom shall
be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Seller, and the Servicer shall be entitled to be reimbursed therefor out of
the
Certificate Account.
Section 6.04 |
Limitation
on Resignation of the
Servicer.
|
The
Servicer shall not resign from the obligations hereby imposed on it except
(a)
upon appointment of a successor servicer that is reasonably acceptable to the
Trustee and the Certificate Insurer and receipt by the Trustee and the
Certificate Insurer of a letter from each Rating Agency that the resignation
and
appointment will not result in a downgrading of the rating of any of the
Certificates (without regard to the Policy) or (b) upon determination that
its
duties hereunder are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to that effect delivered to the Trustee
and the Certificate Insurer. No such resignation shall become effective until
the Trustee or a successor Servicer shall have assumed the Servicer’s
obligations hereunder.
Section 6.05 |
Inspection.
|
The
Servicer, in its capacity as Servicer, shall afford the Trustee and the
Certificate Insurer, upon reasonable advance notice, during normal business
hours, access to all records maintained by the Servicer in respect of its rights
and obligations hereunder and access to officers of the Servicer responsible
for
such obligations. Upon request, the Servicer shall furnish to the Trustee and/or
the Certificate Insurer its most recent publicly available financial statements
and any other information relating to its capacity to perform its obligations
under this Agreement.
ARTICLE
VII
Default
Section 7.01 |
Events
of Default.
|
“Event
of Default,”
wherever used herein, means any one of the following events:
(a) any
failure by the Servicer to deposit in the Certificate Account, which failure
continues unremedied for five days, or any failure by the Servicer to remit
to
the Trustee any payment (other than a payment required to be made under Section
4.01) required to be made by it under this Agreement, which failure continues
unremedied for two Business Days, in each case 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
or
the Certificate Insurer and continues unremedied for a period of sixty (60)
days
after the date on which written notice of such failure shall have been given
to
the Servicer by the Trustee or the Depositor, or to the Servicer and the Trustee
by the Holders of Certificates of any Class evidencing not less than 25% of
the
Percentage Interests of the Class; provided that the sixty day cure period
shall
not apply to the initial delivery of the Mortgage File for Delayed Delivery
Mortgage Loans nor the failure to repurchase or substitute in lieu thereof;
or
(c) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises for the appointment of a receiver, conservator or liquidator in
any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60)
consecutive days; or
(d) the
Servicer shall consent to the appointment of a receiver, conservator or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities, or similar proceedings of or relating to the Servicer or all or
substantially all of the property of the Servicer; or
(e) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of, or commence a voluntary case
under, any applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
(f) the
Servicer shall fail (i) to make an Advance on the Servicer Advance Date or
(ii)
to reimburse in full the Trustee within two days of the Servicer Advance Date
for any Advance made by the Trustee pursuant to Section 4.01(b).
If
an
Event of Default described in clauses (a) through (f) of this Section 7.01
shall
occur, then, and in each and every such case, so long as such Event of Default
shall not have been remedied, the Trustee (with the consent of the Certificate
Insurer) may, or at the direction of the Certificate Insurer (so long as no
Certificate Insurer Default exists) or if a Certificate Insurer Default exists
the Holders of Certificates of any Class evidencing not less than 662/3%
of the
Percentage Interests of that Class, the Trustee shall by notice in writing
to
the Servicer (with a copy to each Rating Agency), terminate all of the rights
and obligations of the Servicer under this Agreement and in the Mortgage Loans
and the proceeds thereof, other than its rights as a Certificateholder
hereunder. On and after the receipt by the Servicer of such written notice,
all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall make any Advance that the Servicer failed to make, whether or
not
the obligations of the Servicer have been terminated pursuant to this
Section.
The
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the Servicer, as attorney-in-fact or otherwise, any documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Unless expressly provided in such written
notice, no such termination shall affect any obligation of the Servicer to
pay
amounts owed pursuant to Article VIII. The Servicer agrees to cooperate with
the
Trustee in effecting the termination of the Servicer’s responsibilities and
rights hereunder, including the transfer to the Trustee of all cash amounts
that
shall at the time be credited to the Certificate Account, or thereafter be
received with respect to the Mortgage Loans. If the Servicer fails to make
any
Advance required under Section 4.01 of this Agreement, thereby triggering an
Event of Default described in clause (f) of this Section 7.01, the Trustee
shall
make such Advance on that Distribution Date.
Notwithstanding
any termination of the activities of the Servicer hereunder, the Servicer shall
be entitled to receive, out of any late collection of a Scheduled Payment on
a
Mortgage Loan that was due before the notice terminating the Servicer’s rights
and obligations as Servicer hereunder and received after the notice, that
portion thereof to which the Servicer would have been entitled pursuant to
Sections 3.09(a)(i) through (v) and (vii), and any other amounts payable to
the
Servicer hereunder the entitlement to which arose before the termination of
its
activities hereunder.
Section 7.02 |
Trustee
to Act; Appointment of Successor.
|
On
and
after the time the Servicer receives a notice of termination pursuant to Section
7.01, the Trustee shall, subject to and to the extent provided in Section 3.05,
be the successor to the Servicer in its capacity as Servicer under this
Agreement and the transactions provided for herein and shall be subject to
all
the responsibilities, duties and liabilities (other than any liabilities
incurred by the Servicer prior to its termination hereunder) relating thereto
placed on the Servicer by the terms hereof and applicable law, including the
obligation to make Advances pursuant to Section 4.01. As compensation therefor,
the Trustee shall be entitled to all funds relating to the Mortgage Loans that
the Servicer would have been entitled to charge to the Certificate Account
or
Distribution Account if the Servicer had continued to act
hereunder.
Notwithstanding
the foregoing, if the Trustee has become the successor to the Servicer in
accordance with Section 7.01, the Trustee may, if it shall be unwilling to
so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution reasonably acceptable to the Depositor, the
appointment of which does not adversely affect the then current rating of the
Certificates by each Rating Agency (without regard to the Policy), as the
successor to the Servicer hereunder in the assumption of all or any part of
the
obligations of the Servicer hereunder.
Any
successor to the Servicer shall be an institution that is a FNMA and FHLMC
approved seller/servicer in good standing, that has a net worth of at least
$15,000,000, that is willing to service the Mortgage Loans and that executes
and
delivers to the Depositor and the Trustee an agreement accepting such delegation
and assignment, containing an assumption by it of the rights and obligations
of
the Servicer (other than liabilities of the Servicer under Section 6.03 incurred
before termination of the Servicer under Section 7.01), with like effect as
if
originally named as a party to this Agreement; provided,
that
each Rating Agency acknowledges that its rating of the Certificates (without
regard to the Policy) in effect immediately before the assignment and delegation
will not be qualified or reduced as a result of the assignment and
delegation.
Pending
appointment of a successor to the Servicer hereunder, the Trustee, unless the
Trustee is prohibited by law from so acting, shall, subject to Section 3.05,
act
in such capacity as hereinabove provided. In connection with such appointment
and assumption, the Trustee may make such arrangements for the compensation
of
the successor out of payments on Mortgage Loans as it and the successor shall
agree. No such compensation shall exceed the Servicing Fee Rate. The Trustee
and
the successor shall take any action, consistent with this Agreement, necessary
to effectuate the succession.
Neither
the Trustee nor any other successor Servicer shall be deemed to be in default
hereunder because of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof or any failure to perform, or
any
delay in performing, any duties hereunder, in either case caused by the failure
of the Servicer to deliver or provide, or any delay in delivering or providing,
any cash, information, documents or records to it. The appointment of a
successor Servicer shall not affect any liability of the predecessor Servicer
that my have arisen under this Agreement before its termination as Servicer
to
pay any deductible under an insurance policy, to indemnify any person, or
otherwise, nor shall any successor Servicer be liable for any acts or omissions
of the predecessor Servicer or for any breach by the Servicer of any of its
representations and warranties contained in this Agreement.
In
connection with the termination or resignation of the Servicer hereunder, either
(i) the successor Servicer, including the Trustee if the Trustee is acting
as
successor Servicer, shall represent and warrant that it is a member of MERS
in
good standing and shall agree to comply in all material respects with the rules
and procedures of MERS in connection with the servicing of the Mortgage Loans
that are registered with MERS, or (ii) the predecessor Servicer shall cooperate
with the successor Servicer either (x) in causing MERS to execute and deliver
an
assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Trustee and to execute and deliver such other notices, documents and other
instruments as may be necessary or desirable to effect a transfer of such
Mortgage Loan or servicing of such Mortgage Loan on the MERS® System to the
successor Servicer or (y) in causing MERS to designate on the MERS® System the
successor Servicer as the servicer of such Mortgage Loan. The predecessor
Servicer shall file or cause to be filed any such assignment in the appropriate
recording office. The successor Servicer shall cause such assignment to be
delivered to the Trustee promptly upon receipt of the original with evidence
of
recording thereon or a copy certified by the public recording office in which
such assignment was recorded.
Each
of
the Certificate Insurer and the Pool Insurer (unless otherwise directed in
writing by the Certificate Insurer) must consent to any successor servicer.
Any
successor to the Servicer as Servicer shall give notice of the change of
servicer to the Seller and Certificate Insurer and the Mortgagors and shall,
during the term of its service as Servicer, maintain in force the policy or
policies that the Servicer is required to maintain pursuant to Section 6.05.
Section 7.03 |
Notification
to
Certificateholders.
|
(a) Upon
any
termination of or appointment of a successor to the Servicer, the Trustee shall
give prompt written notice thereof to Certificateholders, the Certificate
Insurer and each Rating Agency.
(b) Within
sixty (60) days after the occurrence of any Event of Default, the Trustee shall
transmit by mail to all Certificateholders, the Certificate Insurer and each
Rating Agency notice of each Event of Default hereunder known to the Trustee,
unless the Event of Default has been cured or waived.
ARTICLE
VIII
Concerning
the Trustee
Section 8.01 |
Duties
of the Trustee.
|
For
the
purposes of this Article VIII, each of the rights, duties, responsibilities
and
obligations of the Trustee shall be rights, duties, responsibilities and
obligations of the Supplemental Interest Trust Trustee. References to the
Trustee in this Article VIII shall also be references to the Supplemental
Interest Trust Trustee.
The
Trustee, before the occurrence of an Event of Default and after the curing
of
all Events of Default that may have occurred, shall undertake to perform such
duties and only the duties specifically set forth in this Agreement. If an
Event
of Default has occurred and remains uncured, the Trustee shall exercise such
of
the rights and powers vested in it by this Agreement, and use the same degree
of
care and skill in their exercise as a prudent person would exercise or use
under
the circumstances in the conduct of such person’s own affairs.
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. If any such instrument is found not to conform to the
requirements of this Agreement in a material manner, the Trustee shall take
any
action it deems appropriate to have the instrument corrected, and if the
instrument is not corrected to the Trustee’s satisfaction, the Trustee shall
notify the Certificateholders and the Certificate Insurer of the defect. The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other
instrument.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its
own willful misconduct.
Unless
an
Event of Default known to the Trustee has occurred and is
continuing:
(a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for the
performance of the duties specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee,
and the Trustee may conclusively rely, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this Agreement
that it believed in good faith to be genuine and to have been duly executed
by
the proper authorities respecting any matters arising hereunder;
(b) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer or Responsible Officers of the Trustee, unless it is finally
proven that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the
Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of Certificates evidencing not less than 25% of the Voting Rights of
Certificates relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Agreement.
Section 8.02 |
Certain
Matters Affecting the
Trustee.
|
Except
as
otherwise provided in Section 8.01:
(a) the
Trustee may request and rely upon and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document believed
by
it to be genuine and to have been signed or presented by the proper party or
parties and the Trustee shall not have any 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 the Holders of Certificates evidencing
not less than 25% of the Voting Rights allocated to each Class of
Certificates;
(e) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants, or attorneys,
and the Trustee shall not be responsible for any misconduct or negligence on
the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(f) the
Trustee shall not be required to risk or expend its own funds or otherwise
incur
any financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers hereunder if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not assured to it;
(g) the
Trustee shall not be liable for any loss on any investment of funds pursuant
to
this Agreement (other than as issuer of the investment security);
(h) the
Trustee shall not be deemed to have knowledge of an Event of Default or Swap
Provider Trigger Event until a Responsible Officer of the Trustee shall have
received written notice thereof;
(i) the
Trustee need not exercise any of the trusts, rights or powers vested in it
by
this Agreement or to institute, conduct or defend any litigation in connection
with this Agreement at the request, order or direction of the Certificateholders
pursuant to this Agreement unless the Certificateholders shall have offered
to
the Trustee or reasonable security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities that may be incurred in connection
therewith;
(j) the
Trustee or its Affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder, servicing agent, custodian
or
sub-custodian with respect to certain of the Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. The Trustee does not
guarantee the performance of any Permitted Investments;
(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; and
(l) the
Trustee shall provide the Certificate Insurer written notice promptly upon
determining that there are insufficient funds to make any Net Swap Payments
owed
by the Supplemental Trust to the Swap Provider. The Certificate Insurer may,
at
its sole discretion, advance any such required payments, and the Trustee is
hereby authorized to make such payments on behalf of the Certificate
Insurer.
In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable
Law”),
the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its request from time to time such identifying information and documentation
as
may be available for such party in order to enable the Trustee to comply with
Applicable Law.
Section 8.03 |
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates shall be taken as the
statements of the Depositor or the Seller, as the case may be, and the Trustee
does not assume any responsibility for their correctness. The Trustee does
not
make any representations as to the validity or sufficiency of this Agreement,
the Certificates, any Mortgage Loan or related document or MERS or the MERS®
System other than with respect to the Trustee’s execution and countersignature
of the Certificates. 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 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 as Trustee, the Trustee
may
withdraw from the Distribution Account on each Distribution Date the Trustee
Fee
for the Distribution Date. The Trustee and any director, officer, employee
or
agent of the Trustee shall be indemnified by the Seller against any loss,
liability or expense (including reasonable attorney’s fees) resulting from any
error in any tax or information return prepared by the Servicer or incurred
in
connection with any claim or legal action relating to this Agreement, the
Certificates or the performance of any of the Trustee’s 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 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 Seller shall pay or reimburse the Trustee for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with this Agreement with respect to (i) the reasonable
compensation, expenses and disbursements of its counsel not associated with
the
closing of the issuance of the Certificates and (ii) the reasonable
compensation, expenses and disbursements of any accountant, engineer or
appraiser that is not regularly employed by the Trustee, to the extent that
the
Trustee must engage them to perform services under this Agreement.
Except
as
otherwise provided in this Agreement, the Trustee shall not be entitled to
payment or reimbursement for any routine ongoing expenses incurred by the
Trustee in the ordinary course of its duties as Trustee, 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 that would
not cause any of the Rating Agencies to reduce their respective then-current
ratings of the Certificates (without regard to the Policy) (or, having provided
such security from time to time, as is sufficient to avoid such reduction)
as
evidenced in writing by each Rating Agency. If such corporation or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section 8.06 the combined capital and surplus of such
corporation or association shall be deemed to be its combined capital and
surplus as disclosed in its most recent report of condition so published. If
at
any time the Trustee ceases 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 entities serving as Trustee may have normal banking and
trust relationships with the Depositor and its affiliates or the Servicer and
its affiliates. The Trustee may not be an affiliate of the Seller, the Depositor
or the Servicer, other than the Trustee in its role as successor to the
Servicer. The principal office of the Trustee (other than the initial Trustee)
shall be in a state with respect to which an Opinion of Counsel has been
delivered to the Trustee and the Certificate Insurer at the time such party
is
appointed Trustee to the effect that the Trust will not be a taxable entity
under the laws of that state.
Section 8.07 |
Resignation
and Removal of the
Trustee.
|
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, the
Certificate Insurer and each Rating Agency not less than sixty (60) days before
the date specified in the notice, when, subject to Section 8.08, the resignation
is to take effect, and acceptance by a successor trustee in accordance with
Section 8.08 meeting the qualifications in Section 8.06. If no successor trustee
meeting those qualifications shall have been so appointed and have accepted
appointment within thirty (30) days after the notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with Section 8.06
and
shall fail to resign after written request thereto by the Depositor, or if
at
any time the Trustee shall become incapable of acting, or shall be adjudged
as
bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be
appointed, or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, or a tax is imposed with respect to the Trust Fund by any state
in
which the Trustee or the Trust Fund is located and the imposition of the tax
would be avoided by the appointment of a different trustee or administrator,
as
applicable, then the Depositor or the Servicer may remove the Trustee and
appoint a successor trustee, acceptable to the Certificate Insurer if no
Certificate Insurer Default has occurred and is continuing, 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
Certificate Insurer (so long as no Certificate Insurer Default exists) or the
Holders of Certificates (other than the Servicer, Seller, Depositor or any
affiliates or agents thereof) entitled to at least 51% of the Voting Rights
may
at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by the Holders or their
attorneys-in-fact duly authorized, as the case may be, one complete set of
which
shall be delivered by the successor trustee to the Servicer, one complete set
to
the Trustee so removed, and one complete set to the successor so appointed.
The
successor trustee, shall notify each Rating Agency of any removal of the
Trustee.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.08.
Section 8.08 |
Successor
Trustee.
|
Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, its predecessor trustee or
administrator and the Servicer an instrument accepting its appointment hereunder
and thereupon the resignation or removal of the predecessor trustee or
administrator shall become effective and the successor trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights
and obligations of its predecessor hereunder, with the like effect as if
originally named as Trustee herein. The Depositor, the Servicer and the
predecessor trustee or administrator, as applicable, shall execute and deliver
such instruments and do such other things as may reasonably be required for
more
fully and certainly vesting and confirming in the successor trustee all such
rights and obligations.
No
successor trustee shall accept appointment as provided in this Section 8.08
unless at the time of its acceptance, the successor trustee is eligible under
Section 8.06, and its appointment does not adversely affect the then current
rating of the Certificates (without regard to the Policy).
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 or
administrator hereunder to all Holders of Certificates and the Certificate
Insurer. If the Depositor fails to mail the notice within ten (10) days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause the 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 if the successor corporation is eligible under Section 8.06 without
the execution or filing of any paper or further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 8.10 |
Appointment
of Co-Trustee or Separate
Trustee.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust Fund
or property securing any Mortgage Note may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee or co-trustees jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to
vest
in them, in such capacity and for the benefit of the Certificateholders, such
title to the Trust Fund or any part thereof, whichever is applicable, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Servicer and the Trustee may consider
appropriate. If the Servicer shall not have joined in such appointment within
fifteen (15) days after the receipt by it of a request to do so, or in the
case
an Event of Default shall have occurred and be continuing, the Trustee alone
shall have the power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 8.08.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) To
the
extent necessary to effectuate the purposes of this Section 8.10, all rights
and
obligations conferred or imposed upon the Trustee, except for the obligation
of
the Trustee under this Agreement to advance funds on behalf of the Servicer,
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights and obligations (including holding title to the applicable Trust Fund
or
any portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of
the Trustee;
(b) No
trustee hereunder shall be held personally liable because of any act or omission
of any other trustee hereunder and such appointment shall not, and shall not
be
deemed to, constitute any such separate trustee or co-trustee as agent of the
Trustee;
(c) The
Trustee, may at any time accept the resignation of or remove any separate
trustee or co-trustee; and
(d) The
Servicer, and not the Trustee, shall be liable for the payment of reasonable
compensation, reimbursement, and indemnification to any such separate trustee
or
co-trustee.
Any
notice, request, or other writing given to the Trustee shall be deemed to have
been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Servicer and the Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign, or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11 |
Tax
Matters.
|
It
is
intended that the assets with respect to which any REMIC election pertaining
to
the Trust Fund is to be made, as described in the Preliminary Statement, shall
constitute, and that the conduct of matters relating to such assets shall be
such as to qualify such assets as, a “real estate mortgage investment conduit”
as defined in and in accordance with the REMIC Provisions. In furtherance of
such intention, the Trustee covenants and agrees that it shall act as agent
(and
the Trustee is hereby appointed to act as agent) on behalf of any REMIC created
hereunder and that in such capacity it shall:
(i) prepare
and file in a timely manner, a U.S. Real Estate Mortgage Investment Conduit
Income Tax Return (Form 1066 or any successor form adopted by the Internal
Revenue Service) and prepare and file with the Internal Revenue Service and
applicable state or local tax authorities income tax or information returns
for
each taxable year with respect to each REMIC created hereunder described in
the
Preliminary Statement containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations
or
rules, and furnish to Certificateholders the schedules, statements or
information at such times and in such manner as may be required
thereby;
(ii) within
thirty (30) days of the Closing Date, furnish to the Internal Revenue Service,
on Forms 8811 or as otherwise may be required by the Code, the name, title,
address and telephone number of the person that the holders of the Certificates
may contact for tax information relating thereto, together with such additional
information as may be required by such Form 8811, and update such information
at
the time or times in the manner required by the Code;
(iii) 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);
(iv) prepare
and forward to the Certificateholders and to the Internal Revenue Service and,
if necessary, state tax authorities, all information returns and reports as
and
when required to be provided to them in accordance with the REMIC Provisions,
including the calculation of any original issue discount using the prepayment
assumptions set forth in “Yield, Prepayment and Maturity
Considerations─Structuring Assumptions” in the Prospectus
Supplement;
(v) provide
information necessary for the computation of tax imposed on the transfer of
a
Residual Certificate to a Person that is not a Permitted Transferee, or an
agent
(including a broker, nominee or other middleman) of a Non-Permitted Transferee,
or a pass-through entity in which a Non-Permitted Transferee is the record
holder of an interest (the reasonable cost of computing and furnishing such
information may be charged to the Person liable for such tax);
(vi) to
the
extent that they are under its control, conduct matters relating to such assets
at all times that any Certificates are outstanding so as to maintain the status
of any REMIC created hereunder as a REMIC under the REMIC
Provisions;
(vii) pay,
from
the sources specified in the last paragraph of this Section 8.11, the amount
of
any federal or state tax, including prohibited transaction taxes as described
below, imposed on any REMIC created under this Agreement before its termination
when and as the same shall be due and payable (but such obligation shall not
prevent the Trustee or any other appropriate Person from contesting any such
tax
in appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings);
(viii) 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;
(ix) 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;
(x) as
and
when necessary and appropriate, represent any REMIC created under this Agreement
in any administrative or judicial proceedings relating to an examination or
audit by any governmental taxing authority, request an administrative adjustment
as to any taxable year of any REMIC created under this Agreement, enter into
settlement agreements with any governmental taxing agency, extend any statute
of
limitations relating to any tax item of any REMIC created under this Agreement,
and otherwise act on behalf of any REMIC created under this Agreement in
relation to any tax matter or controversy involving it; and
(xi) none
of
the Depositor, Servicer or the Trustee shall knowingly or intentionally take
any
action or omit to take any action that would cause the termination of any REMIC,
or result in the imposition of any non-indemnification taxes on any REMIC,
created under this Agreement.
The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax
Matters Person”)
with
respect to REMIC I, REMIC II, REMIC III and REMIC IV and shall act as Tax
Matters Person for REMIC I, REMIC II, REMIC III and REMIC IV.
To
enable
the Trustee to perform its duties under this Agreement, the Depositor shall
provide to the Trustee within ten (10) days after the Closing Date all
information or data that the Trustee requests in writing and determines to
be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption and projected
cash flows of the Certificates and the Mortgage Loans. Moreover, the Depositor
shall provide information to the Trustee concerning the value to each Class
of
Certificates of the right to receive Net WAC Cap Carry Forward Amounts from
the
Excess Reserve Fund Account. Thereafter, the Depositor shall provide to the
Trustee promptly upon written request therefor any additional information or
data that the Trustee may, from time to time, reasonably request to enable
the
Trustee to perform its duties under this Agreement. The Depositor hereby
indemnifies the Trustee for any losses, liabilities, damages, claims or expenses
of the Trustee arising from any errors or miscalculations of the Trustee that
result from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Trustee on a timely basis.
If
any
tax is imposed on “prohibited transactions” of any REMIC as defined in Section
860F(a)(2) of the Code, on the “net income from foreclosure property” of any
REMIC created under this Agreement as defined in Section 860G(c) of the Code,
on
any contribution to any REMIC created under this Agreement after the Startup
Day
pursuant to Section 860G(d) of the Code, or any other tax is imposed, including
any minimum tax imposed on any REMIC created under this Agreement pursuant
to
Sections 23153 and 24874 of the California Revenue and Taxation Code, if not
paid as otherwise provided for herein, the tax shall be paid by (i) the Trustee
if such tax or any other tax arises out of or results from negligence of the
Trustee in the performance of any of its obligations under this Agreement,
(ii)
the Servicer or the Seller, in the case of any such minimum tax, if such tax
arises out of or results from a breach by the Servicer or Seller of any of
their
obligations under this Agreement, (iii) the Seller if such tax arises out of
or
results from the Seller’s obligation to repurchase a Mortgage Loan pursuant to
Section 2.01, 2.02, 2.03 or 2.05, or (iv) in all other cases, or if the Trustee,
the Servicer or the Seller fails to honor its obligations under the preceding
clauses (i), (ii) or (iii), any such tax will be paid with amounts otherwise
to
be distributed to the Certificateholders, as provided in Section
3.09(b).
The
Trustee shall treat the Excess Reserve Fund Account as an outside reserve fund
within the meaning of Treasury Regulation Section 1.860G-2(h) that is
beneficially owned by the holders of the Class C Certificates and that is not
an
asset of any REMIC created hereunder. The Trustee shall treat the rights of
the
Holders of the Class A Certificates to receive payments from the Excess Reserve
Fund Account as rights in an interest rate cap contract written by the Holders
of the Class C Certificates in respect of any Net
WAC
Cap Carry Forward Amounts,
in
favor of the Class A Certificateholders. Thus, the Class A Certificates shall
be
treated as representing ownership of not only a REMIC regular interest, but
also
ownership of an interest in an interest rate cap contract.
Section 8.12 |
Access
to Records of
Trustee.
|
The
Trustee shall afford the Seller, the Depositor, the Servicer, the Certificate
Insurer, and each Certificateholder or Certificate Owner, upon reasonable notice
during normal business hours, access to all records maintained by the Trustee
in
respect of its duties under this Agreement and access to officers of the Trustee
responsible for performing its duties. Upon request, the Trustee shall furnish
the Depositor, the Servicer, the Certificate Insurer and any requesting
Certificateholder or Certificate Owner with its most recent financial
statements. The Trustee shall cooperate fully with the Seller, the Servicer,
the
Depositor, the Certificate Insurer and the Certificateholder or Certificate
Owner for review and copying any books, documents or records requested with
respect to the Trustee’s duties under this Agreement. The Seller, the Depositor,
the Servicer, the Certificate Insurer and the Certificateholder or Certificate
Owner shall not have any responsibility or liability for any action for failure
to act by the Trustee and are not obligated to supervise the performance of
the
Trustee under this Agreement or otherwise.
Section 8.13 |
Suits
for Enforcement.
|
If
an
Event of Default or other material default by the Servicer or the Depositor
under this Agreement occurs and is continuing, at the direction of the
Certificateholders comprising in the aggregate a Majority in Interest, the
Trustee shall proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement by a suit, action or proceeding in
equity or at law or otherwise, whether for the specific performance of any
covenant or agreement contained in this Agreement or in aid of the execution
of
any power granted in this Agreement or for the enforcement of any other legal,
equitable or other remedy, as the Trustee, being advised by counsel, and subject
to the foregoing, shall deem most effectual to protect and enforce any of the
rights of the Trustee and the Certificateholders.
ARTICLE
IX
Termination
Section 9.01 |
Termination
upon Liquidation or Purchase of the Mortgage
Loans.
|
Subject
to Section 9.03, the obligations of the Depositor, the Servicer and the Trustee
created hereby with respect to the
Trust
Fund shall terminate upon the earlier of (a) the purchase by the Servicer (or,
if the Servicer fails to exercise such option and any portion of the Offered
Certificates remains outstanding, the Certificate Insurer) of all Mortgage
Loans
(and related REO Properties) at the price equal to the sum of (i) 100%
of
the Stated Principal Balance of each Mortgage Loan (other than for REO Property)
plus one month’s accrued interest thereon at the applicable Mortgage Rate less
the Servicing Fee Rate; (ii) the lesser of (x) the appraised value of any
related REO Property as determined by the higher of two appraisals completed
by
two independent appraisers selected by the Servicer at the expense of the
Servicer and (y) the Stated Principal Balance of each Mortgage Loan related
to
any REO Property, in each case plus accrued and unpaid interest thereon at
the
applicable Expense Adjusted Net Mortgage Rate; (iii) any costs and damages
incurred by the Trust Fund in connection with any violation by each Mortgage
Loan of any predatory or abusive lending law; (iv) if the Servicer is exercising
its Optional Termination, any Net WAC Cap Carry Forward Amounts and any amounts
owed to the Certificate Insurer under the Policy and the Insurance Agreement,
(v) if the Certificate Insurer is exercising its Optional Termination,
unreimbursed out-of-pocket costs and expenses of the Servicer, including
unreimbursed Servicing Advances and Advances made on the Mortgage Loans prior
to
the exercise of such right and (vi) accrued and unpaid Net Swap Payments and
Swap Termination Payments (including as a result of such termination) then
owing
to the Swap Provider; and (b) the later of (i) the maturity or other liquidation
(or any Advance with respect thereto) of the last Mortgage Loan remaining in
the
Trust Fund and the disposition of all REO Property; and (ii) the distribution
to
Certificateholders of all amounts required to be distributed to them pursuant
to
this Agreement. In no event shall the trusts created hereby continue beyond
the
earlier of the expiration of 21 years from the death of the survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to
the Court of St. James’s, living on the date hereof or the Latest Possible
Maturity Date (as defined in the Preliminary Statement). If the Servicer’s
exercise of the Optional Termination would result in a draw on the Policy or
any
amounts will remain unpaid to the Certificate Insurer, the Servicer will be
required to obtain the consent of the Certificate Insurer.
The
Servicer or the Certificate Insurer (in such capacity, the “Terminator”)
on or
after the Optional Termination Date may purchase all Mortgage Loans and REO
Properties in the Trust Fund pursuant to clause (a) above. Upon termination
of
the Trust Fund, the Servicer shall succeed to all rights of the Trustee and
Certificateholders with respect to the Trust Fund other than funds needed to
make the final distribution, including any assets that were ever part of the
Trust Fund. With such repurchase, the Terminator shall acquire any rights or
potential rights of the Certificateholders or the Trustee to causes of action
against any Person relating to the Mortgage Loans or the origination of the
Mortgage Loans, including, without limitation, the right to enforce any breach
of a representation or warranty made at any time with respect to the Mortgage
Loans.
In
connection with any such Optional Termination:
(i) The
Terminator shall notify in writing (which may be done in electronic format)
the
Swap Provider, at least ten (10) days prior to the final Distribution Date,
of
the final Distribution Date on which the Terminator intends to terminate the
Trust Fund;
(ii) No
later
than 4:00 pm (New York City time) four (4) Business Days prior to the final
Distribution Date specified in the notices required pursuant to Sections 9.02,
the Trustee shall request from the Swap Provider, the amount of the Estimated
Swap Termination Payment. The Swap Provider shall, no later than 2:00 pm (New
York City time) on the following Business Day, notify in writing (which may
be
done in electronic format) the Trustee of the amount of the Estimated Swap
Termination Payment and the Trustee shall promptly on the same day notify the
Terminator of the amount of the Estimated Swap Termination Payment;
and
(iii) Two
(2)
Business Days prior to the final Distribution Date specified in the notices
required pursuant to Sections 9.02, (x) the Terminator shall, no
later
than 1:00 pm (New
York
City time) on such day, deliver to the Trustee and the Trustee shall deposit
funds in the Distribution Account in an amount equal to the sum of the
Termination Price (clause (vi) of which shall be based on the Estimated Swap
Termination Payment), and (y) if the Trustee shall have determined that the
all
of the requirements for Optional Termination have been met, including without
limitation the deposit required pursuant to the immediately preceding clause
(x)
as well as the requirements specified in Section 9.02, then the Trustee shall,
on the same Business Day, provide written notice to the Terminator and the
Swap
Provider confirming (a) its receipt of the Termination Price (which shall be
based on the Estimated Swap Termination Payment), and (b) that all other
requirements of the Optional Termination have been met (the “Optional
Termination Notice”).
Upon
the delivery of the Optional Termination Notice by the Trustee pursuant to
the
preceding sentence, (i) the Optional Termination shall become irrevocable,
(ii)
the notice to Certificateholders of such Optional Termination provided pursuant
to Section 9.02 shall become unrescindable, (iii) the Swap Provider shall
determine the Swap Termination Payment in accordance with the Interest Rate
Swap
Agreement (which shall not exceed the Estimated Swap Termination Payment),
and
(iv) the Swap Provider shall provide to the Trustee written notice of the amount
of the Swap Termination Payment not later than one (1) Business Day prior to
the
final Distribution Date specified in the notices required pursuant to Sections
9.02.
In
connection with any Optional Termination, only an amount equal to the
Termination Price based on the actual Swap Termination Payment shall be made
available for distribution to the Certificateholders. Any Estimated Swap
Termination Payment deposited into the Distribution Account by the Terminator
shall be withdrawn by the Trustee from the Distribution Account on the related
final Distribution Date and distributed as follows: (i) to the Supplemental
Interest Trust for payment to the Swap Provider in accordance with Section
4.02,
an amount equal to the Swap Termination Amount calculated pursuant to the
Interest Rate Swap Agreement, provided that in no event shall the amount
distributed to the Swap Provider in respect of the Swap Termination Amount
exceed the Estimated Swap Termination Payment, and (ii) to the Terminator an
amount equal to the excess, if any, of the Estimated Swap Termination Payment
over the actual Swap Termination Payment due. The Swap Termination Payment
shall
not be part of any REMIC and shall not be paid into any account which is part
of
any REMIC.
Section 9.02 |
Final
Distribution on the
Certificates.
|
If
on any
Determination Date, the Servicer determines that there are no Outstanding
Mortgage Loans and no other funds or assets in the Trust Fund other than the
funds in the Certificate Account, the Servicer shall direct the Trustee promptly
to send a final distribution notice to each Certificateholder. If the Terminator
elects to terminate the Trust Fund pursuant to clause (a) of Section 9.01,
at
least ten (10) days before the date notice is to be mailed to the affected
Certificateholders, the Terminator shall notify the Depositor and the Trustee
of
the date the Servicer or Certificate Insurer, as applicable, intends to
terminate the Trust Fund and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
Notice
of
any termination of the Trust Fund, specifying the Distribution Date on which
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Trustee by letter
to Certificateholders mailed not earlier than the 10th
day and
not later than the 15th
day of
the month next preceding the month of such final distribution. Any such notice
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of Certificates at
the
office therein designated, (b) the amount of such final distribution, (c) the
location of the office or agency at which such presentation and surrender must
be made and (d) that the Record Date otherwise applicable to the Distribution
Date is not applicable, distributions being made only upon presentation and
surrender of the Certificates at the office therein specified. The Servicer
will
give such notice to each Rating Agency and the Certificate Insurer at the time
such notice is given to Certificateholders.
If
the
notice is given, the Servicer shall cause all funds in the Certificate Account
to be remitted to the Trustee for deposit in the Distribution Account on the
Business Day before the applicable Distribution Date in an amount equal to
the
final distribution in respect of the Certificates. Upon such final deposit
with
respect to the Trust Fund and the receipt by the Trustee of a Request for
Release therefor, the Trustee shall promptly release to the Terminator, the
Mortgage Files for the Mortgage Loans.
Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Certificateholders of each Class, in each case on the final
Distribution Date and in the order stated in Section 4.02, in proportion to
their respective Percentage Interests, with respect to Certificateholders of
the
same Class, an amount equal to (i) as to each Class of Regular Certificates
(except the related Class C Certificate), its Certificate Balance plus, for
each
such Class, accrued interest thereon in the case of an interest-bearing
Certificate and (ii) as to the related Residual Certificates, any amount
remaining on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above. By
acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, that their
rights to receive any amounts pursuant to clause (ii) in the immediately
preceding sentence hereby are assigned and transferred and, to the extent
received in respect of such termination, to pay any such amounts to the Holders
of the Class C Certificates.
If
any
affected Certificateholder does not surrender its Certificates for cancellation
within six (6) months after the date specified in the above mentioned written
notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six (6) months after
the
second notice all the applicable Certificates shall not have been surrendered
for cancellation, the Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets that remain a part of the Trust Fund. If
within one year after the second notice all related Certificates shall not
have
been surrendered for cancellation, the Residual Certificateholders shall be
entitled to all unclaimed funds and other assets of the Trust Fund that remain
subject hereto.
Section 9.03 |
Additional
Termination
Requirements.
|
If
the
Terminator 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 and the Certificate
Insurer has been supplied with an Opinion of Counsel, at the expense of the
Terminator to the effect that the failure to comply with the requirements of
this Section 9.03 will not (i) result in the imposition of taxes on “prohibited
transactions” on any REMIC created hereunder as defined in Section 860F of the
Code or (ii) cause any REMIC created under this Agreement to fail to qualify
as
a REMIC at any time that any Certificates are outstanding.
The
Trustee shall sell all of the assets of the Trust Fund to the Terminator and,
within ninety (90) days of the sale, shall distribute to the related
Certificateholders and the Certificate Insurer the proceeds of the sale in
complete liquidation of any REMIC created hereunder.
The
Trustee shall attach a statement to the final federal income tax return for
each
of any REMIC created hereunder stating that pursuant to Treasury Regulation
Section 1.860F-1, the first day of the ninety (90) day liquidation period for
each the REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Terminator.
Section 9.04 |
Termination
of the Supplemental Interest
Trust.
|
The
obligations of the Depositor, the Trustee and the Supplemental Interest Trust
Trustee created hereby with respect to the Supplemental Interest Trust shall
terminate upon the earlier of (a) the termination of the Interest Rate Swap
Agreement pursuant to the terms of the Interest Rate Swap Agreement or (b)
the
termination of this Agreement pursuant to Section 9.01.
ARTICLE
X
Miscellaneous
Provisions
Section 10.01 |
Amendment.
|
(a) This
Agreement may be amended from time to time by the Depositor, the Servicer,
and
the Trustee with the consent of the Certificate Insurer and without the consent
of any of the Certificateholders:
(i) to
cure
any ambiguity or mistake,
(ii) to
correct any defective provision herein or to supplement any provision herein
that may be inconsistent with any other provision herein,
(iii) to
conform this Agreement to the Prospectus Supplement,
(iv) to
add to
the duties of the Depositor, the Seller, or the Servicer,
(v) to
modify, alter, amend, add to or rescind any of the terms or provisions contained
in this Agreement to comply with any rules or regulations promulgated by the
Securities and Exchange Commission from time to time,
(vi) to
add
any other provisions with respect to matters or questions arising hereunder,
or
(vii) to
modify, alter, amend, add to, or rescind any of the provisions of this
Agreement.
No
action
pursuant to clauses (iv), (vi) or (vii) above may, as evidenced by an Opinion
of
Counsel (addressed to the Trustee and the Certificate Insurer and which Opinion
of Counsel shall not be an expense of the Trustee, the Certificate Insurer
or
the Trust Fund), adversely affect in any material respect the interests of
any
Certificateholder. The amendment shall not be deemed to adversely affect in
any
material respect the interests of the Certificateholders if the Person
requesting the amendment obtains a letter from each Rating Agency stating that
the amendment would not result in the downgrading or withdrawal of the
respective ratings then assigned to the Certificates (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.
(b) The
Trustee, the Depositor and the Servicer also may, at any time and from time
to
time, amend this Agreement with the consent of the Certificate Insurer and
without the consent of the Certificateholders, in order to modify, eliminate
or
add to any of the provisions of this Agreement to the extent necessary or
helpful to (i) maintain the qualification of any REMIC created under this
Agreement under the Code; (ii) avoid or minimize the risk of the imposition
of
any tax on any REMIC created under this Agreement pursuant to the Code that
would be a claim at any time before the final redemption of the Certificates;
or
(iii) comply with any other requirements of the Code; if the Trustee has been
provided an Opinion of Counsel, addressed to the Trustee and the Certificate
Insurer and which opinion shall be an expense of the party requesting such
opinion but in any case shall not be an expense of the Trustee, the Certificate
Insurer or the Trust Fund, to the effect that the action is necessary or helpful
for one of those purposes.
(c) This
Agreement may also be amended from time to time by the Depositor, the Servicer,
and the Trustee with the consent of the Certificate Insurer (unless a
Certificate Insurer Default has occurred, at which time the Certificate
Insurer’s consent is not necessary) and the Holders of Certificates evidencing
Percentage Interests aggregating not less than 662/3%
of each
Class of Certificates affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates. No amendment shall:
(ci) reduce
in
any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of the
Certificate;
(cii) adversely
affect in any material respect the interests of the Holders of any Class of
Certificates in a manner other than as described in (i), without the consent
of
the Holders of Certificates of the Class evidencing, as to the Class, Percentage
Interests aggregating not less than 662/3%;
(ciii) amend,
modify, add to, rescind, or alter in any respect Section 10.13, notwithstanding
any contrary provision of this Agreement, without the consent of the Holders
of
Certificates evidencing Percentage Interests aggregating not less than
662/3%,
and
for this purpose no Certificates held by the Seller, the Depositor, or any
Affiliate of either of them shall be eligible to vote or be considered
Outstanding; or
(civ) reduce
the aforesaid percentages of Certificates the Holders of which are required
to
consent to any such amendment, without the consent of the Holders of all such
Certificates then outstanding.
Notwithstanding
any contrary provision of this Agreement regarding Voting Rights, no amendment
which affects one or more Classes held by the Depositor, the Servicer, the
Seller or any Affiliates as described in this Section 10.01(c) shall be
effective without the consent of the Depositor, the Servicer, the Seller or
any
of their Affiliates, as applicable, to such amendments.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless (i) it shall have first received an Opinion
of Counsel (also addressed to the Certificate Insurer), which opinion shall
not
be an expense of the Trustee, the Certificate Insurer or the Trust Fund, to
the
effect that the amendment will not cause the imposition of any tax on any REMIC
or the Certificateholders or cause any REMIC to fail to qualify as a REMIC
at
any time that any Certificates are outstanding and (ii) because the Trust Fund
is required to be a Qualifying Special Purpose Entity (as that term is defined
in Statement of Financial Accounting Standards No. 140 (“SFAS
140”)),
in
order for the Seller to continue to account for the transfer of the Mortgage
Loans under this Agreement as a sale under SFAS 140, prior to the parties hereto
entering into such an amendment, the Trustee shall receive an Officer’s
Certificate, which shall not be an expense of the Trustee or the Trust Fund,
to
the effect that such amendment would not “significantly change” (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
the Trust Fund to fail to qualify as a Qualifying Special Purpose
Entity.
Notwithstanding
any of the other provisions of this Section 10.01, none of the Depositor, the
Servicer, the Supplemental Interest Trust Trustee or the Trustee shall enter
into any amendment to this Agreement that could reasonably be expected to
have a material adverse effect on the interests of the Swap
Provider hereunder (excluding, for the avoidance of doubt, any amendment to
the Pooling and Servicing Agreement that is entered into solely for the purpose
of appointing a successor servicer, master servicer, securities administrator,
trustee or other service provider), without the prior written consent of the
Swap Provider, which consent shall not be unreasonably withheld, conditioned
or
delayed.
Notwithstanding
any of the other provisions of this Section 10.01, none of the Depositor, the
Servicer or the Trustee shall enter into any amendment which alters or modifies
Section 4.10 of this Agreement (including the defined terms incorporated
therein) or which would otherwise have an adverse impact on the rights of
the Pool Insurer under Section 4.10 or otherwise on the Deferred Premium or
the Pool Policy without the prior written consent of the Pool
Insurer.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance or a copy of the amendment to each Certificateholder and each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 10.01
to approve the particular form of any proposed amendment, but it shall be
sufficient if the consent approves its substance. The manner of obtaining
consents and of evidencing the authorization of their execution by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe.
Nothing
in this Agreement shall require the Trustee to enter into an amendment without
receiving an Opinion of Counsel (which Opinion shall be addressed to the
Certificate Insurer and shall not be an expense of the Trustee, the Certificate
Insurer or the Trust Fund), satisfactory to the Trustee and the Certificate
Insurer that (i) the amendment is permitted by this Agreement and all conditions
precedent to the amendment have been satisfied; and (ii) either (A) the
amendment does not adversely affect in any material respect the interests of
any
Certificateholder or (B) the conclusion in the preceding clause (A) is not
required to be reached pursuant to this Section 10.01.
Section 10.02 |
Recordation
of Agreement;
Counterparts.
|
This
Agreement is subject to recordation in all appropriate public offices for real
property records in all the counties or other comparable jurisdictions in which
any or all of the properties subject to the Mortgages are situated, and in
any
other appropriate public recording office or elsewhere, the recordation to
be
effected by the Servicer at its expense, but only upon receipt of an Opinion
of
Counsel to the effect that the recordation materially and beneficially affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be an original, and all of
which shall constitute but one instrument.
Section 10.03 |
Governing
Law.
|
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 10.04 |
Intention
of Parties.
|
It
is the
express intent of the parties hereto that the conveyance (i) of the Mortgage
Loans by the Seller to the Depositor and (ii) of the Trust Fund by the Depositor
to the Trustee each be, and be construed as, an absolute sale thereof. It is,
further, not the intention of the parties that such conveyances be deemed a
pledge thereof. However, if, notwithstanding the intent of the parties, the
assets are held to be the property of the Seller or Depositor, as the case
may
be, or if for any other reason this Agreement is held or deemed to create a
security interest in either such assets, then (i) this Agreement shall be deemed
to be a security agreement within the meaning of the Uniform Commercial Code
of
the State of New York and (ii) the conveyances provided for in this Agreement
shall be deemed to be an assignment and a grant (i) by the Seller to the
Depositor or (ii) by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the assets transferred,
whether now owned or hereafter acquired.
The
Seller and the Depositor for the benefit of the Certificateholders and the
Certificate Insurer shall, to the extent consistent with this Agreement, take
such actions as may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Trust Fund, such security interest would
be
deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of the Agreement. The
Depositor shall arrange for filing any Uniform Commercial Code continuation
statements in connection with any security interest granted or assigned to
the
Trustee for the benefit of the Certificateholders.
Section 10.05 |
Notices.
|
(a) The
Trustee shall promptly notify each Rating Agency and the Certificate Insurer
of
each of the following of which it has actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Event of Default that has not been cured;
3. The
resignation or termination of the Servicer or the Trustee and the appointment
of
any successor;
4. The
repurchase or substitution of Mortgage Loans pursuant to Section
2.03;
5. The
final
payment to Certificateholders; and
6.
Any
failure by the Pool Insurer to perform its obligations under the Policy in
accordance with the terms thereof.
In
addition, the Trustee shall promptly furnish to each Rating Agency and the
Certificate Insurer copies of the following:
1. Each
report to Certificateholders described in Section 4.03;
2. Each
annual statement as to compliance described in Section 3.17 and assessment
of
compliance and attestation report described in Section 3.18;
3. Each
annual independent public accountants’ servicing report described in Section
3.18; and
4. Any
notice of a purchase of a Mortgage Loan pursuant to Section 2.01, 2.02, 2.03,
2.05 or 3.12.
In
addition, the Trustee shall notify the Swap Provider of any termination of
the
Trust pursuant to Section 9.01.
(b) All
directions, demands and notices hereunder shall be in writing and be duly given
when delivered to
(i) in
the
case of the Depositor, IndyMac ABS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Capital Markets, or such other address as may
be
hereafter furnished to the Servicer and the Trustee by the
Depositor;
(ii) in
the
case of the Servicer, IndyMac Bank, F.S.B., 000
Xxxx
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Servicing, or such other address as may be hereafter furnished to
the
Depositor and the Trustee by the Servicer;
(iii) in
the
case of the Trustee or the Supplemental Interest Trust Trustee, to the Corporate
Trust Office, Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Xxxxxxxxxxxxxx XX00X0, Series
INDS 2007-1, or such other address as the Trustee may hereafter furnish to
the
Depositor and Servicer;
(iv) in
the
case of the Certificate Insurer, MBIA Insurance Corporation, 000 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000, Attention: Insured Portfolio Management—Structured
Finance (IndyMac 2007-1) or such other address as the Certificate Insurer may
hereafter furnish to the Depositor and the Trustee;
(v) in
the
case of each of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency;
(vi) in
the
case of the Swap Provider, Bear Xxxxxxx Financial Products, Inc., 000 Xxxxxxx
Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: DPC Manager, or such other address as
the
Swap Provider may hereafter furnish to the Depositor and the Trustee;
and
(vii) in
the
case of the Pool Insurer, Radian Insurance Inc., 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000.
Notices
to Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate
Register.
Section 10.06 |
Severability
of Provisions.
|
If
any
one or more of the provisions of this Agreement shall be for any reason
whatsoever held invalid, then those provisions shall be deemed severable from
the remaining provisions of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of
the
Certificates or the rights of the Holders thereof.
Section 10.07 |
Assignment.
|
Notwithstanding
anything to the contrary contained herein, except as provided in Section 6.02,
this Agreement may not be assigned by the Servicer without the prior written
consent of the Trustee, the Certificate Insurer and Depositor.
Section 10.08 |
Limitation
on Rights of
Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder’s legal
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust, or
otherwise affect the rights and obligations of the parties hereto or any of
them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything in this Agreement
or
the Certificates be construed so as to constitute the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholder be liable to any third party because of any action taken
by
the parties to this Agreement pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as herein provided, and unless the
Holders of Certificates evidencing not less than 25% of the Voting Rights
evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit, or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as
it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for sixty (60) days after its receipt of such
notice, request, and offer of indemnity shall have neglected or refused to
institute any such action, suit, or proceeding and the Certificate Insurer
(so
long as no Certificate Insurer Default exists) has given its prior written
consent. Each Certificateholder expressly covenants with every other
Certificateholder and the Trustee that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For
the
protection and enforcement of this Section 10.08, each Certificateholder and
the
Trustee shall be entitled to any relief that can be given either at law or
in
equity.
Section 10.09 |
Inspection
and Audit Rights.
|
The
Servicer agrees that on reasonable prior notice, it will permit any
representative of the Depositor, the Certificate Insurer or the Trustee during
such Person’s normal business hours, to examine all the books of account,
records, reports and other papers of such Person relating to the Mortgage Loans,
to make copies and extracts therefrom, to cause such books to be audited by
independent certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to the
Mortgage Loans with its officers, employees and independent public accountants
(and by this provision the Servicer hereby authorizes said accountants to
discuss with such representative such affairs, finances and accounts), all
at
such reasonable times and as often as may be reasonably requested. Any
out-of-pocket expense incident to the exercise by the Depositor or the Trustee
of any right under this Section 10.09 shall be borne by the
Servicer.
Section 10.10 |
Certificates
Nonassessable and Fully
Paid.
|
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
Section 10.11 |
Official
Record.
|
The
Seller agrees that this Agreement is and shall remain at all times before the
time at which this Agreement terminates an official record of the Seller as
referred to in Section 13(e) of the Federal Deposit Insurance Act.
Section 10.12 |
Protection
of Assets.
|
(a) Except
for transactions and activities entered into in connection with the
securitization that is the subject of this Agreement, the Trust is not
authorized and has no power to:
(1)
borrow
money or issue debt;
(2)
merge
with another entity, reorganize, liquidate or sell assets; or
(3)
engage
in
any business or activities.
(b) Each
party to this Agreement agrees that it will not file an involuntary bankruptcy
petition against the Trustee or the Trust Fund or initiate any other form of
insolvency proceeding until after the Certificates have been paid in full.
`
Section 10.13 |
Qualifying
Special Purpose
Entity.
|
Notwithstanding
any contrary provision of this Agreement the Trust Fund shall not engage in
any
activity or knowingly hold any property that would disqualify the Trust Fund
from being a qualifying special purpose entity under generally accepted
accounting principles.
Section 10.14 |
Rights
of the Certificate
Insurer.
|
(a) The
Certificate Insurer is an express third-party beneficiary of this
Agreement.
(b) The
Trustee or the Depositor, as applicable, shall provide to the Certificate
Insurer copies of any report, notice, Opinion of Counsel, Officers’ Certificate,
request for consent or request for amendment to any document related hereto
promptly upon the Trustee’s or the Depositor’s production or receipt thereof,
but only to the extent that such item is required to be delivered to the
Certificate Insurer hereunder.
(c) Unless
a
Certificate Insurer Default exists, the Trustee, the Seller, the Servicer and
the Depositor shall not agree to any amendment to this Agreement without first
having obtained the prior written consent of the Certificate
Insurer.
(d) So
long
as there does not exist a failure by the Certificate Insurer to make a required
payment under the Policy, the Certificate Insurer shall have the right to
exercise all rights of the Holders of the Offered Certificates under this
Agreement without any consent of such Holders, and such Holders may exercise
such rights only with the prior written consent of the Certificate Insurer,
except as provided herein.
(e) The
Certificate Insurer shall not be entitled to exercise any of its rights
hereunder so long as there exists a failure by the Certificate Insurer to make
a
required payment under the Policy, except that the Certificate Insurer shall
be
entitled to its right to receive notices as set forth in Section 10.05 in the
event that there exists a failure by the Certificate Insurer to make a required
payment under the Policy.
(f) The
Trustee and the Servicer shall notify the Certificate Insurer of any notice
of
change of address received from the Pool Insurer.
(g) The
Trustee and the Servicer shall not consent to any termination, modification,
or
reduction of the Pool Policy without the prior written consent of the
Certificate Insurer.
(h) Any
replacement Pool Insurer is subject to the prior written consent of the
Certificate Insurer and any replacement Pool Policy must be in form and
substance acceptable to the Certificate Insurer.
Section 10.15 |
Rights
and Duties of the Swap
Provider.
|
The
Swap
Provider shall be an express third-party beneficiary of this Agreement
to the same extent as if it were a party hereto and shall have the right to
enforce its rights under this Agreement.
Prior
to
any termination of the Interest Rate Swap Agreement by the Swap Provider as
a
result of the occurrence of the “Failure to Pay or Deliver” Event of Default (as
defined in the Interest Rate Swap Agreement) relating to the Supplemental
Interest Trust Trustee’s failure to pay the Fixed Amounts (as defined in the
Interest Rate Swap Agreement) in accordance with Section 2 thereof, the Trustee
shall provide the Certificate Insurer written notice of the Supplemental
Interest Trust Trustee’s failure to pay such amounts. Upon receipt of such
notice, the Certificate Insurer shall have the right, but not the obligation,
to
cure any such Event of Default within two Business Days after receipt of such
notice.
Section 10.16 |
Rights
and Duties of the Pool
Insurer.
|
(a) The
Pool
Insurer is an express third-party beneficiary of this Agreement.
(b) The
Pool
Insurer shall be entitled to exercise any of its rights hereunder only for
so
long as the Pool Policy is outstanding.
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
ABS, INC.,
as
Depositor
|
||||||||||||||
By:
|
/s/
Xxxx Xxxxxxxx
|
|||||||||||||
Name:
|
Xxxx
Xxxxxxxx
|
|||||||||||||
Title:
|
Vice
President
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Trustee and Supplemental Interest Trust Trustee
|
||||||||||||||
By:
|
/s/
Xxxxxxxx Xxxxxxxxxxx
|
|||||||||||||
Name:
|
Xxxxxxxx
Xxxxxxxxxxx
|
|||||||||||||
Title:
|
Associate
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
|||||||
Name:
|
Xxxxxxx
Xxxxxxxx
|
|||||||
Title:
|
Vice
President
|
INDYMAC
BANK, F.S.B.,
as
Seller and Servicer
|
||||||||||||||
By:
|
/s/
Xxxx Xxxxxxxx
|
|||||||||||||
Name:
|
Xxxx
Xxxxxxxx
|
|||||||||||||
Title:
|
Vice
President
|
STATE OF _________________ | ) | |
) | ss.: | |
COUNTY OF _______________ | ) |
On
the
___th day of February, 2007 before me, a notary public in and for said State,
personally appeared _______________ known to me to be a ______________ of
IndyMac ABS Inc., a Delaware corporation that executed the within instrument,
and also known to me to be the person who executed it on behalf of said
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
___________________________________
Notary Public
STATE OF _________________ | ) | |
) | ss.: | |
COUNTY OF _______________ | ) |
On
the
___th day of February, 2007 before me, a notary public in and for said State,
personally appeared _______________ known to me to be a _______________ of
IndyMac Bank, F.S.B. that executed the within instrument, and also known to
me
to be the person who executed it on behalf of said corporation, and acknowledged
to me that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
___________________________________
Notary Public
STATE OF NEW YORK | ) | |
) | ss.: | |
COUNTY OF NEW YORK | ) |
On
the
___th day of February, 2007 before me, a notary public in and for said State,
personally appeared ____________________, known to me to be an
____________________of Deutsche Bank National Trust Company, a national banking
association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said association, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
___________________________________
Notary Public
Schedule
I
Mortgage
Loan Schedule
Schedule
II
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2007-1
Representations
and Warranties of the Seller/Servicer
Indy
Mac
Bank, F.S.B. (“IndyMac”)
hereby
makes the representations and warranties in this Schedule II to the Depositor,
the Trustee and the Certificate Insurer as of the Closing Date. Capitalized
terms used but not otherwise defined in this Schedule II shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement (the “Pooling
and Servicing Agreement”)
relating to the above-referenced Series, among IndyMac, as Seller and Servicer,
IndyMac ABS, Inc., as Depositor, and Deutsche Bank National Trust Company,
as
Trustee and Supplemental Interest Trust Trustee.
(a) IndyMac
is duly organized as a federally insured savings bank and is validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any business contemplated by the Pooling
and Servicing Agreement to be conducted by IndyMac in any state in which a
Mortgaged Property is located or is otherwise not required under applicable
law
to effect such qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its ability
to enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with
the Pooling and Servicing Agreement and to perform any of its other obligations
under the Pooling and Servicing Agreement.
(b) IndyMac
has the full corporate power and authority to sell and service each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate
the
transactions contemplated by the Pooling and Servicing Agreement and has duly
authorized by all necessary corporate action on the part of IndyMac the
execution, delivery and performance of the Pooling and Servicing Agreement;
and
each of the Pooling and Servicing Agreement, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes a
legal, valid and binding obligation of IndyMac, enforceable against IndyMac
in
accordance with its terms, except that (a) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, receivership and other similar
laws relating to creditors’ rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The
execution and delivery of the Pooling and Servicing Agreement by IndyMac, the
sale and servicing of the Mortgage Loans by IndyMac under the Pooling and
Servicing Agreement, the consummation of any other of the transactions
contemplated by the Pooling and Servicing Agreement, and the fulfillment of
or
compliance with the terms of the Pooling and Servicing Agreement are in the
ordinary course of business of IndyMac and will not (A) result in a material
breach of any term or provision of the charter or by-laws of IndyMac, (B)
materially conflict with, result in a material breach, violation or acceleration
of, or result in a material default under, any other material agreement or
instrument to which IndyMac is a party or by which it may be bound, or (C)
constitute a material violation of any statute, order or regulation applicable
to IndyMac of any court, regulatory body, administrative agency or governmental
body having jurisdiction over IndyMac (including the OTS, the FDIC or any other
governmental entity having regulatory authority over IndyMac); and IndyMac
is
not in breach or violation of any material indenture or other material agreement
or instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it (including the OTS, the FDIC or any other governmental entity having
regulatory authority over IndyMac) which breach or violation may materially
impair IndyMac’s ability to perform or meet any of its obligations under the
Pooling and Servicing Agreement.
(d) IndyMac
is an approved servicer of conventional mortgage loans for FNMA or FHLMC or
is a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 203 and 211 of the National Housing Act.
(e) No
litigation is pending or, to the best of IndyMac’s knowledge, threatened against
IndyMac that would prohibit the execution or delivery of, or performance under,
the Pooling and Servicing Agreement by IndyMac.
(f) IndyMac
is a member of MERS in good standing, and will comply in all material respects
with the rules and procedures of MERS in connection with the servicing of the
MERS Mortgage Loans for as long as such Mortgage Loans are registered with
MERS.
(g) The
beneficial owner of the payments made under the Interest Rate Swap Agreement
is
either (i) a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii)
of United States Treasury Regulations) for United States federal income tax
purposes and an “Exempt recipient” within the meaning of section
1.6049-4(c)(1)(ii) of United States Treasury Regulations, or (ii) a “non-U.S.
branch of a foreign person” as that term is used in section 1.1441-4(a)(3)(ii)
of the United States Treasury Regulations (the “Regulations”) for United States
federal income tax purposes, and it is a “foreign person” as that term is used
in section 1.6041-4(a)(4) of the Regulations for United States federal income
tax purposes. IndyMac Bank, F.S.B. understands that both the Trust and the
Trustee are relying on this information in connection with the execution of
the
Interest Rate Swap Agreement.
Schedule
III
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2007-1
Representations
and Warranties as to the Mortgage Loans
IndyMac
Bank, F.S.B. (“IndyMac”)
hereby
makes the representations and warranties in this Schedule III to the Depositor,
the Trustee and the Certificate Insurer, as of the Closing Date, or if so
specified herein, as of the applicable Cut-off Date or date of origination
of
the Mortgage Loan (as applicable). Capitalized terms used but not otherwise
defined in this Schedule III shall have the meanings ascribed thereto in the
Pooling and Servicing Agreement (the “Pooling
and Servicing Agreement”)
relating to the above-referenced Series, among IndyMac, as Seller and Servicer,
IndyMac ABS, Inc., as Depositor, and Deutsche Bank National Trust Company,
as
Trustee and Supplemental Interest Trust Trustee.
(a) The
information on Schedule I to the Pooling and Servicing Agreement with respect
to
each Mortgage Loan is true and correct in all material respects as of the
Closing Date.
(b) As
of the
Closing Date, all regularly scheduled monthly payments due with respect to
each
Mortgage Loan up to and including the Due Date before the applicable Cut-off
Date have been made; and as of the applicable Cut-off Date, no Mortgage Loan
had
a regularly scheduled monthly payment that was 30 or more days Delinquent during
the twelve months before the applicable Cut-off Date.
(c) With
respect to any Mortgage Loan, each Mortgage is a valid and enforceable lien
on
the Mortgaged Property subject only to (a) the lien of nondelinquent current
real property taxes and assessments and liens or interests arising under or
as a
result of any federal, state or local law, regulation or ordinance relating
to
hazardous wastes or hazardous substances and, if the related Mortgaged Property
is a unit in a condominium project or planned unit development, any lien for
common charges permitted by statute or homeowner association fees, (b)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording of such Mortgage, such
exceptions appearing of record being generally acceptable to mortgage lending
institutions in the area wherein the related Mortgaged Property is located
or
specifically reflected in the appraisal made in connection with the origination
of the related Mortgage Loan, and (c) other matters to which like properties
are
commonly subject that do not materially interfere with the benefits of the
security intended to be provided by such Mortgage.
(d) 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.
(e) As
of the
date of origination of each Mortgage Loan, there was no delinquent tax or
assessment lien against the related Mortgaged Property.
(f) 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.
(g) There
are
no mechanics’ liens or claims for work, labor or material affecting any
Mortgaged Property that are or may be a lien before, or equal with, the lien
of
such Mortgage,
except
those that are insured against by the title insurance policy referred to in
item
(k) below.
(h) 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.
(i) Each
Mortgage Loan and prepayment penalty associated with the Mortgage Loan at
origination complied in all material respects with applicable federal, state
and
local laws, including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, Home Ownership and Equity Protection Act of 1994,
applicable predatory and abusive lending and disclosure laws, or any
noncompliance does not have a material adverse effect on the value of the
related Mortgage Loan.
(j) As
of the
Closing Date, the Seller has not modified the Mortgage in any material respect
(except that a Mortgage Loan may have been modified by a written instrument
that
has been recorded or submitted for recordation, if necessary, to protect the
interests of the Certificateholders and that has been delivered to the Trustee);
satisfied, cancelled or subordinated such Mortgage in whole or in part; released
the related Mortgaged Property in whole or in part from the lien of such
Mortgage; or executed any instrument of release, cancellation, modification
or
satisfaction with respect thereto.
(k) A
lender’s policy of title insurance together with a condominium endorsement and
extended coverage endorsement, if applicable, in an amount at least equal to
the
Cut-off Date Principal Balance, of each Mortgage Loan or a commitment (binder)
to issue the same was effective on the date of the origination of each Mortgage
Loan, each such policy is valid and remains in full force and
effect.
(l) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Exchange Act) by an entity that satisfied at the time of origination the
requirements of Section 3(a)(41) of the Exchange Act.
(m) To
the
best of the Seller’s knowledge, all of the improvements that were included for
the purpose of determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of such property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not have a
material effect on the value of the Mortgaged Property.
(n) 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.
(o) 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.
(p) The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder.
(q) The
related Mortgage contains customary and enforceable provisions that render
the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security, including, (i) in the
case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure.
(r) 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.
(s) As
of the
applicable Cut-off Date, the improvements upon each Mortgaged Property are
covered by a valid and existing hazard insurance policy with a generally
acceptable carrier that provides for fire and extended coverage and coverage
for
such other hazards as are customarily required by institutional single family
mortgage lenders in the area where the Mortgaged Property is located, and the
Seller has received no notice that any premiums due and payable thereon have
not
been paid; the Mortgage obligates the Mortgagor thereunder to maintain all
such
insurance including flood insurance at the Mortgagor’s cost and expense.
Anything to the contrary in this item (s) notwithstanding, no breach of this
item (s) 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.
(t) 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.
(u) 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.
(v) To
the
best of the Seller’s knowledge, there is no material event that, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a material non-monetary default, breach, violation or event
of
acceleration under the Mortgage or the related Mortgage Note; and the Seller
has
not waived any material non-monetary default, breach, violation or event of
acceleration.
(w) Each
Mortgage File contains an Appraisal Form 1004 of the related Mortgaged
Property.
(x) Any
leasehold estate securing a Mortgage Loan has a stated term at least as long
as
the term of the related Mortgage Loan.
(y) Each
Mortgage Loan was selected from among the outstanding one- to four-family
mortgage loans in the Seller’s mortgage portfolio at the Closing Date as to
which the representations and warranties made with respect to the Mortgage
Loans
in this Schedule III can be made. No such selection was made in a manner
intended to adversely affect the interests of the Certificateholders or the
Certificate Insurer.
(z) None
of
the Mortgage Loans are cooperative loans.
(aa) [Reserved.]
(bb) [Reserved.]
(cc) No
Mortgage Loan is a High Cost Loan or Covered Mortgage Loan, as applicable (as
such terms are defined in the then-current version of Standard & Poor's
LEVELS® Glossary) and no Mortgage Loan originated on or after Oct. 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
(dd) No
Mortgage Loan is a “High-Cost Home Loan” as defined in any of the following
statutes: the Georgia Fair Lending Act, as amended (the “Georgia Act”), the New
York Banking Law 6-1, the Arkansas Home Loan Protection Act effective July
16,
2003 (Act 1340 of 2003), the Kentucky high-cost home loan statute effective
June
24, 2003 (Ky. Rev. Stat. Section 360.100), the New Jersey Home Ownership Act
effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico
Home
Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx §§ 58-21A-1 et
seq.). No Mortgage Loan secured by owner occupied real property or an owner
occupied manufactured home located in the state of Georgia was originated (or
modified) on or after October 1, 2002 through and including March 6, 2003.
No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.).
(ee) None
of
the Mortgage Loans is a “high cost” loan, “covered” loan or any other similarly
designated loan as defined under any state, local or federal law, as defined
by
applicable predatory and abusive lending laws.
(ff) 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.
(gg) Each
Mortgage Loan has been underwritten and serviced substantially in accordance
with the Seller’s guidelines, subject to variances as are reflected on the
Mortgage Loan Schedule or the Seller has approved.
(hh) No
proceeds from any Mortgage Loan underlying the Certificates were used to finance
single-premium credit insurance policies.
(ii) No
Mortgage Loan is subject to the requirements of the Home Ownership and Equity
Protection Act of 1994 and no mortgage loan is in violation of any comparable
state law.
(jj) [Reserved]
(kk) The
Servicer has fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (i.e.,
favorable and unfavorable) on the credit files for the related Mortgagor for
each Mortgage Loan to Equifax, Experian and Trans Union Credit Information
Company on a monthly basis.
(ll) With
respect to any mortgage loan underlying the Security that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity: (a)
prior to the mortgage loan’s origination, the borrower agreed to such premium in
exchange for a monetary benefit, including but not limited to a rate or fee
reduction; (b) prior to the mortgage loan’s origination, the borrower was
offered the option of obtaining a mortgage loan that did not require payment
of
such a premium; (c) the prepayment premium is adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) no subprime loan
originated on or after October 1, 2002 underlying the Security will impose
a
prepayment premium for a term in excess of three years and any loans originated
prior to such date, and any non-subprime loans, will not impose prepayment
penalties in excess of five years; in each case unless the loan was modified
to
reduce the prepayment period to no more than three years from the date of the
note and the borrower was notified in writing of such reduction in prepayment
period; and (e) notwithstanding any state or federal law to the contrary, the
servicer shall not impose such prepayment premium in any instance when the
mortgage loan is accelerated or paid off in connection with the workout of
a
delinquent mortgage or due to the borrower’s default.
(mm) With
respect to each mortgage loan originated on or after December 1, 2004 and
underlying the Certificates, neither the related Mortgage nor the related
Mortgage Note requires the Mortgagors to submit to arbitration to resolve any
dispute arising out of or relating in any way to the related mortgage loan
transaction.
(nn) With
respect to each mortgage loan underlying the Security, no borrower obtained
a
prepaid single-premium credit-life, credit disability, credit unemployment
or
credit property insurance policy in connection with the origination of the
mortgage loan.
(oo) With
respect to each mortgage loan underlying the Security, the mortgage loan’s
originator offered the borrower mortgage loan products offered by such mortgage
loan’s originator, or any affiliate of such mortgage loan’s originator, for
which the borrower qualified.
(pp) The
methodology used in underwriting the extension of credit for each mortgage
loan
employs objective mathematical principles which relate the borrower’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the borrower’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the borrower had a reasonable ability to make timely
payments on the mortgage loan.
(qq) No
borrower under a mortgage loan was charged “points and fees” in an amount
greater than (a) $1,000 or (b) 5% of the principal amount of such mortgage
loan,
whichever is greater. For purposes of this representation, “points and fees” (x)
include origination, underwriting, broker and finder’s fees and charges that the
lender imposed as a condition of making the mortgage loan, whether they are
paid
to the lender or a third party; and (y) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination of the
mortgage (such as attorneys’ fees, notaries fees and fees paid for property
appraisals, credit reports, surveys, title examinations and extracts, flood
and
tax certifications, and home inspections); the cost of mortgage insurance or
credit-risk price adjustments; the costs of title, hazard, and flood insurance
policies; state and local transfer taxes or fees; escrow deposits for the future
payment of taxes and insurance premiums; and other miscellaneous fees and
charges that, in total, do not exceed 0.25 percent of the loan
amount.
(rr) All
points, fees and charges (including finance charges), and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each mortgage loan, have been disclosed in writing
to the borrower in accordance with applicable state and federal law and
regulation.
(ss) To
the
best of the Seller’s knowledge, there was no fraud 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.
(tt) All
of
the Covered Mortgage Loans have all of the Loan File Documents (as defined
in
the Pool Policy).
EXHIBIT
A
FORM
OF
CLASS A CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH TRANSFEREE SHALL BE
DEEMED TO HAVE BEEN MADE THE REPRESENTATIONS IN SECTION 5.02(b) OF THE POOLING
AND SERVICING AGREEMENT.
Certificate
No.
|
:
|
[
___]
|
Cut-off
Date
|
:
|
February
1, 2007
|
First
Distribution Date
|
:
|
March
26, 2007
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$[__]
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$[__]
|
CUSIP
|
:
|
[_______]
|
INDYMAC
ABS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust
Home
Equity Mortgage Loan Asset-Backed Certificates, Series
INDS 2007-1
Class
[
__ ]
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Principal
in respect of this Certificate is distributable monthly as stated herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that [___________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac ABS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (the “Trustee”) and as supplemental interest trust
trustee. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
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.
Prior
to
the termination of the Supplemental Interest Trust, each transferee that is
a
Plan subject to ERISA or Section 4975 of the Code, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person using “Plan Assets” to
acquire this Certificate shall be deemed to have made the representations in
Section 5.02(b) of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
February ___, 2007
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
EXHIBIT
B
FORM
OF
CLASS A-IO CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, EACH TRANSFEREE SHALL BE
DEEMED TO HAVE BEEN MADE THE REPRESENTATIONS IN SECTION 5.02(b) OF THE POOLING
AND SERVICING AGREEMENT.
THIS
CERTIFICATE IS ENTITLED TO PAYMENTS OF INTEREST ONLY AS DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
Certificate
No.
|
:
|
[
]
|
Cut-off
Date
|
:
|
February
1, 2007
|
First
Distribution Date
|
:
|
March
26, 2007
|
Initial
Notional Amount of this Certificate (“Denomination”)
|
:
|
$[__]
|
Initial
Notional Amount of all Certificates of this Class
|
:
|
$[__]
|
CUSIP
|
:
|
[_______]
|
Interest Rate | : | Variable |
THE
NOTIONAL AMOUNT OF THIS CERTIFICATE MAY DECLINE ON ANY DISTRIBUTION DATE AND
FOLLOWING THE FEBRUARY 2008 DISTRIBUTION DATE WILL BE ZERO. ACCORDINGLY, THE
OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN
ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
INDYMAC
ABS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2007-1
Class
A-IO
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
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 a Percentage Interest evidenced
by this Certificate (obtained by dividing the Denomination of this Certificate
by the aggregate Notional Amount of the Class A-IO Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the Class
A-IO Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
IndyMac ABS, Inc., as depositor (the “Depositor”), IndyMac Bank, F.S.B., as
seller (in such capacity, the “Seller”) and as servicer (in such capacity, the
“Servicer”), and Deutsche Bank National Trust Company, as trustee (the
“Trustee”) and as supplemental interest trust trustee. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
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.
Prior
to
the termination of the Supplemental Interest Trust, each transferee that is
a
Plan subject to ERISA or Section 4975 of the Code, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person using “Plan Assets” to
acquire this Certificate shall be deemed to have made the representations in
Section 5.02(b) of the Agreement.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
February ___, 2007
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||||
By:
|
||||||||||||||
Countersigned:
|
|||||||||||||
By:
|
|||||||||||||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL
TRUST
COMPANY, not in its individual
capacity,
but
solely as Trustee
|
EXHIBIT
C
FORM
OF
CLASS P CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
SUBJECT
TO THE PROVISIONS OF SECTION 5.02(b) OF THE AGREEMENT NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO
THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
AND IS NOT INVESTING ON BEHALF OF OR WITH ASSETS OF SUCH A PLAN, OR 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 REPRESENTATION LETTER OR
THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID
AND OF NO EFFECT.
Certificate
No.
|
:
|
[
____]
|
Cut-off
Date
|
:
|
February
1, 2007
|
First
Distribution Date
|
:
|
March
26, 2007
|
Initial
Certificate Balance of this Certificate (“Denomination”)
|
:
|
$100
|
Initial
Certificate Balances of all Certificates of this Class
|
:
|
$100
|
INDYMAC
ABS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2007-1
Class
P
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class payable solely from Prepayment Charges.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [_________] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac ABS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (the “Trustee”) and as supplemental interest trust
trustee. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This
Certificate does not have a Pass-Through Rate and will be entitled to
distributions only to the extent set forth in the Agreement and solely payable
from Prepayment Charges. In addition, any distribution of the proceeds of any
remaining assets of the Trust will be made only upon presentment and surrender
of this Certificate at the office or agency maintained by the
Trustee.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such transfer,
subject to the provisions in Section 5.02(b) of the Agreement, the Trustee
shall
require the transferor to execute a transferor certificate (in substantially
the
form attached to the Pooling and Servicing Agreement) and deliver either (i)
an
Investment Letter or the Rule 144A Letter, in either case substantially in
the
form attached to the Agreement, or (ii) a written Opinion of Counsel to the
Trustee that such transfer may be made pursuant to an exemption, describing
the
applicable exemption and the basis therefor, from the 1933 Act or is being
made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
Subject
to the provisions in Section 5.02(b) of the Agreement, no transfer of a
Certificate of this Class shall be made unless the Trustee shall have received
either (i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code, nor a person acting on behalf of
any
such plan, which representation letter shall not be an expense of the Trustee
or
(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 arrangement or any other person
acting on behalf of any such plan or arrangement or using such plan’s or
arrangement’s assets, an Opinion of Counsel satisfactory to the Trustee and the
Servicer, which Opinion of Counsel shall not be an expense of the Trustee,
the
Servicer or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2007
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
EXHIBIT
D
FORM
OF RESIDUAL CERTIFICATE
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SUBJECT
TO THE PROVISIONS OF SECTION 5.02(b) OF THE AGREEMENT NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO
THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
AND IS NOT INVESTING ON BEHALF OF OR WITH ASSETS OF SUCH A PLAN, OR AN OPINION
OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE REPRESENTATION LETTER OR
THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID
AND OF NO EFFECT.
Certificate
No.
|
:
|
[
___]
|
Cut-off
Date
|
:
|
February
1, 2007
|
First
Distribution Date
|
:
|
Xxxxx
00, 0000
|
Xxxxxxxxx
Percentage Interest of the Class R Certificates as of the Issue
Date
|
:
|
[__]%
|
INDYMAC
ABS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2007-1
Class
R
evidencing
the distributions allocable to the Class R Certificates.
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Balance at any time may be less than the
Certificate Balance as set forth herein. This Certificate does not evidence
an
obligation of, or an interest in, and is not guaranteed by the Depositor, the
Seller, the Servicer or the Trustee referred to below or any of their respective
affiliates. Neither this Certificate nor the Mortgage Loans are guaranteed
or
insured by any governmental agency or instrumentality.
This
certifies that [___] is the registered owner of the Percentage Interest
(obtained by dividing the Denomination of this Certificate by the aggregate
of
the Denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the “Agreement”) among
IndyMac ABS, Inc., as depositor (the “Depositor”), IndyMac Bank, F.S.B., as
seller (in such capacity, the “Seller”) and as servicer (in such capacity, the
“Servicer”), and Deutsche Bank National Trust Company, as trustee (the
“Trustee”) and as supplemental interest trust trustee. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Class R Certificate at the
office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such transfer,
subject to the provisions in Section 5.02(b) of the Agreement, the Trustee
shall
require the transferor to execute a transferor certificate (in substantially
the
form attached to the Pooling and Servicing Agreement) and deliver either (i)
an
Investment Letter or the Rule 144A Letter, in either case substantially in
the
form attached to the Agreement, or (ii) a written Opinion of Counsel to the
Trustee that such transfer may be made pursuant to an exemption, describing
the
applicable exemption and the basis therefor, from the 1933 Act or is being
made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor
Subject
to the provisions in Section 5.02(b) of the Agreement, no transfer of a
Certificate of this Class shall be made unless the Trustee shall have received
either (i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code, nor a person acting on behalf of
any
such plan, which representation letter shall not be an expense of the Trustee
or
(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 arrangement or any other person
acting on behalf of any such plan or arrangement or using such plan’s or
arrangement’s assets, an Opinion of Counsel satisfactory to the Trustee and the
Servicer, which Opinion of Counsel shall not be an expense of the Trustee,
the
Servicer or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
Each
Holder of this Class R Certificate shall be deemed by the acceptance or
acquisition an Ownership Interest in this Class R Certificate to have agreed
to
be bound by the following provisions, and the rights of each Person acquiring
any Ownership Interest in this Class R Certificate are expressly subject to
the
following provisions: (i) each Person holding or acquiring any Ownership
Interest in this Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its status
as a
Permitted Transferee, (ii) no Ownership Interest in this Class R Certificate
may
be registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of this Certificate unless, in addition to
the
certificates required to be delivered to the Trustee under Section 5.02(b)
of
the Agreement, the Trustee shall have been furnished with a Transfer Affidavit
of the initial owner or the proposed transferee in the form attached as Exhibit
I to the Agreement (subject to the limitations with respect thereto as set
forth
in Section 5.02(b) of the Agreement), (iii) each Person holding or acquiring
any
Ownership Interest in this Class R Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest this Class R Certificate (subject to the
limitations with respect thereto as set forth in Section 5.02(b) of the
Agreement), (B) to obtain a Transfer Affidavit from any Person for whom such
Person is acting as nominee, trustee or agent in connection with any Transfer
of
this Class R Certificate (subject to the limitations with respect thereto as
set
forth in Section 5.02(b) of the Agreement) and (C) not to Transfer the Ownership
Interest in this Class R Certificate or to cause the Transfer of the Ownership
Interest in this Class R Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee and (iv) any attempted
or purported Transfer of the Ownership Interest in this Class R Certificate
in
violation of the provisions herein shall be absolutely null and void and shall
vest no rights in the purported Transferee.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2007
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
EXHIBIT
E
FORM
OF CLASS C CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
SUBJECT
TO THE PROVISIONS OF SECTION 5.02(b) OF THE AGREEMENT NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE TRANSFEREE DELIVERS TO
THE
TRUSTEE EITHER A REPRESENTATION LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS
NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT
OF 1974, AS AMENDED (“ERISA”), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE,
AND IS NOT INVESTING ON BEHALF OF OR WITH ASSETS OF SUCH A PLAN, OR 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 REPRESENTATION LETTER OR
THE
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID
AND OF NO EFFECT.
NO
TRANSFER OF A CLASS C CERTIFICATE SHALL BE MADE UNLESS THE TRANSFEREE OF
SUCH CERTIFICATE HAS PROVIDED TO THE TRUSTEE A CORRECT, COMPLETE AND DULY
EXECUTED TAX CERTIFICATION FORM (I.E., U.S. INTERNAL REVENUE SERVICE FORM X-0,
X-0XXX, X-0XXX, X-0XXX OR W-8ECI, AS APPLICABLE (OR ANY SUCCESSOR FORM THERETO),
TOGETHER WITH APPROPRIATE ATTACHMENTS) AS A CONDITION TO SUCH TRANSFER AND
AGREES TO UPDATE SUCH TAX CERTIFICATION FORM (I) UPON EXPIRATION OF ANY SUCH
TAX
CERTIFICATION FORM, (II) AS REQUIRED UNDER THEN APPLICABLE U.S. TREASURY
REGULATIONS AND (III) PROMPTLY UPON LEARNING THAT ANY TAX CERTIFICATION FORM
PREVIOUSLY PROVIDED HAS BECOME OBSOLETE OR INCORRECT. UPON RECEIPT OF ANY SUCH
TAX CERTIFICATION FORM FROM A TRANSFEREE OF ANY CLASS C CERTIFICATE, THE TRUSTEE
SHALL PROVIDE SUCH TAX CERTIFICATION FORM TO THE SUPPLEMENTAL INTEREST TRUST
TRUSTEE. THE SUPPLEMENTAL INTEREST TRUST TRUSTEE SHALL PROVIDE SUCH TAX
CERTIFICATION FORM TO THE SWAP PROVIDER.
EACH
HOLDER OF A CLASS C CERTIFICATE AND EACH TRANSFEREE THEREOF SHALL BE DEEMED
TO
HAVE CONSENTED TO THE TRUSTEE AND THE SUPPLEMENTAL INTEREST TRUST TRUSTEE
FORWARDING TO THE SWAP PROVIDER ANY SUCH TAX CERTIFICATION FORM IT HAS PROVIDED
AND UPDATED IN ACCORDANCE WITH THESE TRANSFER RESTRICTIONS. ANY PURPORTED SALES
OR TRANSFERS OF ANY CLASS C CERTIFICATE TO A TRANSFEREE WHICH DOES NOT COMPLY
WITH THESE REQUIREMENTS SHALL BE DEEMED NULL AND VOID UNDER THIS
AGREEMENT.
Certificate
No.
|
:
|
[
____]
|
Cut-off
Date
|
:
|
February
1, 2007
|
First
Distribution Date
|
:
|
March
26, 2007
|
Percentage
Interest of this Certificate (“Denomination”)
|
:
|
[__]%
|
INDYMAC
ABS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2007-1
Class
C
evidencing
a percentage interest in the distributions allocable to the Certificates of
the
above-referenced Class.
Distributions
in respect of this Certificate are distributable monthly as set forth herein.
This Certificate does not evidence an obligation of, or an interest in, and
is
not guaranteed by the Depositor, the Seller, the Servicer or the Trustee
referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any governmental
agency or instrumentality.
This
certifies that [______] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the aggregate of the Denominations of all Certificates of the
Class to which this Certificate belongs) in certain monthly distributions
pursuant to a Pooling and Servicing Agreement dated as of the Cut-off Date
specified above (the “Agreement”) among IndyMac ABS, Inc., as depositor (the
“Depositor”), IndyMac Bank, F.S.B., as seller (in such capacity, the “Seller”)
and as servicer (in such capacity, the “Servicer”), and Deutsche Bank National
Trust Company, as trustee (the “Trustee”) and as supplemental interest trust
trustee. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This
Certificate does not have a Certificate Balance or Pass-Through Rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such disposition
is
exempt from the registration requirements of the Securities Act of 1933, as
amended (the “1933 Act”), and any applicable state securities laws or is made in
accordance with the 1933 Act and such laws. In the event of any such transfer,
subject to the provisions in Section 5.02(b) of the Agreement, the Trustee
shall
require the transferor to execute a transferor certificate (in substantially
the
form attached to the Pooling and Servicing Agreement) and deliver either (i)
an
Investment Letter or the Rule 144A Letter, in either case substantially in
the
form attached to the Agreement, or (ii) a written Opinion of Counsel to the
Trustee that such transfer may be made pursuant to an exemption, describing
the
applicable exemption and the basis therefor, from the 1933 Act or is being
made
pursuant to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
Subject
to the provisions in Section 5.02(b) of the Agreement, no transfer of a
Certificate of this Class shall be made unless the Trustee shall have received
either (i) a representation letter from the transferee of such Certificate,
acceptable to and in form and substance satisfactory to the Trustee, to the
effect that such transferee is not an employee benefit plan subject to Section
406 of ERISA or Section 4975 of the Code, nor a person acting on behalf of
any
such plan, which representation letter shall not be an expense of the Trustee
or
(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 arrangement or any other person
acting on behalf of any such plan or arrangement or using such plan’s or
arrangement’s assets, an Opinion of Counsel satisfactory to the Trustee and the
Servicer, which Opinion of Counsel shall not be an expense of the Trustee,
the
Servicer or the Trust Fund, addressed to the Trustee, to the effect that the
purchase or holding of such Certificate will not result in a nonexempt
prohibited transaction under ERISA or Section 4975 of the Code and will not
subject the Trustee or the Servicer to any obligation in addition to those
expressly undertaken in this Agreement or to any liability.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Trustee.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
________, 2007
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity, but solely as Trustee
|
||||||||||||
By:
|
||||||||||||
Countersigned:
By:
|
||
Authorized
Signatory of
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not
in its individual capacity,
but
solely as Trustee
|
EXHIBIT
F
FORM
OF
REVERSE OF CERTIFICATES
INDYMAC
ABS, INC.
Home
Equity Mortgage Loan Asset-Backed Trust,
Home
Equity Mortgage Loan Asset-Backed Certificates
This
Certificate is one of a duly authorized issue of Certificates designated as
IndyMac ABS, Inc., Home Equity Mortgage Loan Asset-Backed Certificates, of
the
Series specified on the face hereof (herein collectively called the
“Certificates”), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (the “Distribution Date”), commencing on the first
Distribution Date specified on the face hereof, to the Person in whose name
this
Certificate is registered at the close of business on the applicable Record
Date
in an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to Holders of Certificates
of the Class to which this Certificate belongs on such Distribution Date
pursuant to the Agreement. The Record Date applicable to each Distribution
Date
is the last Business Day of the month next preceding the month of such
Distribution Date.
Distributions
on this Certificate shall be made by wire transfer of immediately available
funds to the account of the Holder hereof at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have so
notified the Trustee in writing at least five (5) Business Days prior to the
related Record Date and such Certificateholder shall satisfy the conditions
to
receive such form of payment set forth in the Agreement, or, if not, by check
mailed by first class mail to the address of such Certificateholder appearing
in
the Certificate Register. The final distribution on each Certificate will be
made in like manner, but only upon presentment and surrender of such Certificate
at the location specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holders
of
any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Trustee upon surrender of this Certificate for registration of transfer
at
the office or agency maintained by the Trustee, accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Certificate
Registrar duly executed by the holder hereof or such holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Trustee or any such agent shall be affected by any notice to the
contrary.
On
any
Distribution Date following the date on which the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Remittance
Period is less than 10% of the Cut-off Date Principal Balance of the Mortgage
Loans, the Servicer will have the option to purchase, in whole, from the Trust
Fund all remaining Mortgage Loans and all property acquired in respect of the
Mortgage Loans at a purchase price determined as provided in the Agreement.
The
obligations and responsibilities created by the Agreement will terminate as
provided in Section 9.01 of the Agreement.
Any
term
used herein that is defined in the Agreement shall have the meaning assigned
in
the Agreement, and nothing herein shall be deemed inconsistent with that
meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust Fund.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
____________________________________.
Dated:
Signature by or on behalf of assignor
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to
|
,
|
||||
for
the account of
|
,
|
||||
account
number___________, or, if mailed by check, to
|
,
|
||||
Applicable
statements should be mailed to
|
,
|
||||
.
|
This
information is provided by
|
,
|
|||
the
assignee named above, or
|
,
|
|||
as
its agent.
|
STATE OF _________________ | ) | |
) | ss.: | |
COUNTY OF _______________ | ) |
On
the
___ th day of __________, 200_ before me, a notary public in and for said State,
personally appeared _______________________, known to me who, being by me duly
sworn, did depose and say that he executed the foregoing
instrument.
Notary
Public
|
[Notarial
Seal]
EXHIBIT
G-1
FORM
OF
INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
[Certificate
Insurer]
_____________________
_____________________
Re: |
Pooling and Servicing Agreement among IndyMac
ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche
Bank National Trust Company, as Trustee, Home Equity Mortgage Loan
Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage Loan
Asset-Backed Certificates, Series INDS
0000-0
|
Xxxxxxxxx:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”),
the
undersigned, as Trustee, hereby certifies that, as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage Loan listed in the
attached schedule), it has received:
(i) the
original Mortgage Note, endorsed as provided in the following form: “Pay to the
order of ________, without recourse”; and
(ii) an
executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments); provided,
however, that
it
has received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, priority, perfection, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein have the respective meanings assigned to them
in
the Pooling and Servicing Agreement.
Deutsche
Bank National Trust Company
as
Trustee
|
||||||||||||||
By:
|
||||||||||||||
Name:
|
||||||||||||||
Title:
|
EXHIBIT
G-2
FORM
OF
DELAYED DELIVERY CERTIFICATION
[date]
[Seller]
Depositor]
[Servicer]
[Certificate
Insurer]
cc:
[Rating Agencies]
Re: |
Pooling and Servicing Agreement among IndyMac
ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and
Deutsche
Bank National Trust Company, as Trustee, Home Equity Mortgage Loan
Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage Loan
Asset-Backed Certificates, Series
INDS 0000-0
|
Xxxxxxxxx:
[Reference
is made to the Initial Certification of Trustee relating to the above-referenced
series, with the schedule of exceptions attached thereto, delivered by the
undersigned, as Trustee, on the Closing Date in accordance with Section 2.02
of
the above-captioned Pooling and Servicing Agreement.] The undersigned hereby
certifies that as to each Delayed Delivery Mortgage Loan listed on the Schedule
A attached hereto (other than any Mortgage Loan paid in full or listed on
Schedule B attached hereto) it has received:
(i) (A)
the
original Mortgage Note, endorsed by manual or facsimile signature in blank
in
the following form: “Pay to the order of ______________________________ without
recourse,” with all intervening endorsements showing a complete chain of
endorsement from the originator to the Person endorsing the Mortgage Note (each
such endorsement being sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note) and (B)
with respect to any Lost Mortgage Note, a lost note affidavit from the Seller
stating that the original Mortgage Note was lost or destroyed, together with
a
copy of such Mortgage Note;
(ii) an
executed assignment of the Mortgage (which may be included in a blanket
assignment or assignments), together with, except as provided below, all interim
recorded assignments of such mortgage (each such assignment, when duly and
validly completed, to be in recordable form and sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to which
the assignment relates); provided,
however,
that
such assignment of Mortgage need not be delivered in the case of a Mortgage
for
which the related Mortgaged Property is located in the Commonwealth of Puerto
Rico.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to the Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the above-referenced
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i)
the validity, legality, priority, perfection, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgages identified on the [Mortgage Loan Schedule][Loan Number and
Borrower Identification Mortgage Loan Schedule] or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein have the respective meanings assigned to them
in
the above-captioned Pooling and Servicing Agreement.
Deutsche
Bank National Trust Company
as
Trustee
|
||||||||||||||
By:
|
||||||||||||||
Name:
|
||||||||||||||
Title:
|
EXHIBIT
H
FORM
OF
FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
[Certificate
Insurer]
_____________________
_____________________
Re: |
Pooling and Servicing Agreement among IndyMac
ABS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and
Deutsche
Bank National Trust Company, as Trustee, Home Equity Mortgage
Loan
Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage
Loan
Asset-Backed Certificates, Series
INDS 0000-0
|
Xxxxxxxxx:
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(d)(i)
of
the Pooling and Servicing Agreement, with all intervening endorsements showing
a
complete chain of endorsement from the originator to the Seller.
(ii) The
original recorded Mortgage.
(iii) An
executed assignment of the Mortgage in the form provided in Section 2.01(d)(iii)
of the Pooling and Servicing Agreement; provided,
however, that
it
has received no assignment with respect to any Mortgage for which the related
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the related Mortgage
has not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The
original or duplicate original recorded assignment or assignments of the
Mortgage showing a complete chain of assignment from the originator to the
Seller.
(v) The
original or duplicate original lender’s title policy and all riders thereto or,
any one of an original title binder, an original preliminary title report or
an
original title commitment, or a copy thereof certified by the title
company.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan and
(b)
the information set forth in items (i), (ii), (iii), (iv), (vi) and (xi)(a)
of
the definition of the “Mortgage Loan Schedule” in Section 1.01 of the Pooling
and Servicing Agreement accurately reflects information set forth in the
Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, priority, perfection, sufficiency, enforceability or
genuineness of any of the documents contained in each Mortgage File of any
of
the Mortgage Loans identified on the Mortgage Loan Schedule; or (ii) the
collectability, insurability, effectiveness or suitability of any such Mortgage
Loan. Notwithstanding anything herein to the contrary, the Trustee has made
no
determination and makes no representations as to whether (i) any endorsement
is
sufficient to transfer all interest of the party so endorsing, as Noteholder
or
assignee thereof, in that Mortgage Note or (ii) any assignment is in recordable
form or sufficient to effect the assignment of and transfer to the assignee
thereof, under the Mortgage to which the assignment relates.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
Deutsche
Bank National Trust Company
as
Trustee
|
||||||||||||||
By:
|
||||||||||||||
Name:
|
||||||||||||||
Title:
|
EXHIBIT
I
IndyMac
ABS, Inc.,
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2007-1
STATE OF _________________ | ) | |
) | ss.: | |
COUNTY OF _______________ | ) |
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of ____________________________, the proposed
Transferee of an Ownership Interest in a Class R Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement (the “Agreement”),
relating to the above-referenced Series, by and among IndyMac ABS, 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 Annex
1, shall have the meanings ascribed to such terms in the Agreement. The
Transferee has authorized the undersigned to make this affidavit on behalf
of
the Transferee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account.
3. The
Transferee has been advised of, and understands that: (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the Transferee
furnishes to such Person an affidavit that such Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not have actual
knowledge that the affidavit is false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in the Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed Section 5.02(c) of the Agreement (attached hereto as
Annex 2 and incorporated herein by reference) and understands the legal
consequences of the acquisition of an Ownership Interest in the Certificate
including, without limitation, the restrictions on subsequent Transfers and
the
provisions regarding voiding the Transfer and mandatory sales. The Transferee
expressly agrees to be bound by and to abide by the provisions of Section
5.02(c) of the Agreement and the restrictions noted on the face of the
Certificate. The Transferee understands and agrees that any breach of any of
the
representations included herein shall render the Transfer to the Transferee
contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit J to the Agreement
(a
“Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee’s taxpayer identification number is ________________ and the
Transferee has provided to the Trustee a correct, complete and duly executed
Internal Revenue Service Form W-9 (or successor thereto), together with
appropriate attachments.
8. The
Transferee is a U.S. Person as defined in Code Section 7701(a)(30).
9. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of Treasury regulations promulgated pursuant to the
Code and that the transferor of a noneconomic residual interest will remain
liable for any taxes due with respect to the income on such residual interest,
unless no significant purpose of the transfer was to impede the assessment
or
collection of tax. The Transferee does not have the intention to impede the
assessment or collection of any tax legally required to be paid with respect
to
the Certificate.
10. Transferee
has historically paid the Transferee’s debts as they become due, and Transferee
intends, and believes that the Transferee will be able, to continue to pay
Transferee’s debts as such debts become due in the future. Transferee has a
valid business purpose for purchasing the Residuals.
11. Transferee
is not a foreign permanent establishment or fixed base (within the meaning
of an
applicable income tax treaty) (a “Foreign
Base”)
of a
U.S. taxpayer. In addition, the Transferee will not (a) transfer the Class
R
Certificates, directly or indirectly, to a Foreign Base, and (b) cause income
from the Class R Certificates to be attributable to a Foreign Base of the
Transferee or another U.S. taxpayer.
12. Either:
(a)
(i)
At the time of the transfer, and at the close of each of the Transferee's two
fiscal years preceding the Transferee's fiscal year of transfer, the
Transferee's gross assets for financial reporting purposes exceed $100 million
and its net assets for financial reporting purposes exceed $10 million. For
purposes of the preceding sentence, the gross assets and net assets of a
Transferee do not include any obligation of any Related Person or any other
asset if a principal purpose for holding or acquiring the other asset is to
permit the Transferee to satisfy the conditions of this paragraph 12(a); and
(ii) the Transferee is an Eligible Corporation and hereby agrees that any
subsequent transfer of the interest will be to another Eligible Corporation
in a
transaction that satisfies this Transfer Affidavit, including this paragraph
12(a). For the purpose of this affidavit, the term “Eligible
Corporation”
means
any domestic C corporation (as defined in section 1361(a)(2) of the Code) other
than a corporation which is exempt from, or is not subject to, tax under section
11 of the Code, an entity described in section 851(a) or 856(a) of the Code,
a
REMIC or an organization to which part I, subchapter T, chapter 1, subtitle
A of
the Code applies, and the term “Related
Person”
means
any person that bears a relationship to the Transferee enumerated in section
267(b) or 707(b)(1) of the Code, using "20 percent" instead of "50 percent"
where it appears under the provisions; or is under common control (within the
meaning of section 52(a) and (b) of the Code) with the Transferee;
or
(b)(i)
The
Transferee is a United States Person; and (ii) the present value of the
anticipated tax liabilities associated with holding the residual interest does
not exceed the sum of: (A) the present value of any consideration given to
the
Transferee to acquire the interest, (B) the present value of the expected future
distributions on the interest and (C) the present value of the anticipated
tax
savings associated with holding the interest as the REMIC generates losses.
For
purposes of calculating the aforementioned present values: (i) the transferee
has assumed that it pays tax at a rate equal to the highest rate of tax
specified in Code Section 11(b)(1) (unless the Transferee has been subject
to
the alternative minimum tax under Section 55 of the Code in the preceding two
years and will compute its taxable income in the current taxable year using
the
alternative minimum tax rate, in which case the Transferee can assume that
it
pays tax at the rate specified in Section 55(b)(1)(B) of the Code (provided,
that the Transferee states in this Transfer Affidavit that it is using such
alternate rate and that has been subject to the alternative minimum tax under
Section 55 of the Code in the preceding two years) and will compute its taxable
income in the current taxable year using the alternative minimum tax rate);
and
(ii) the Transferee uses a discount rate equal to the Federal short-term rate
prescribed by section 1274(d) of the Code for the month of the transfer and
the
compounding period used by the Transferee.
13. The
Transferee hereby represents to and for the benefit of the transferor that
the
Transferee intends to pay any tax associated with holding the Ownership Interest
as they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by its Ownership Interest.
14. The
Transferee is not an employee benefit plan that is subject to ERISA or a plan
that is subject to Section 4975 of the Code, and the Transferee is not acting
on
behalf of or using plan assets of such a plan.
In
Witness Whereof,
the
Transferee has caused this instrument to be executed on its behalf, pursuant
to
authority of its Board of Directors, by its duly authorized officer and its
corporate seal to be hereunto affixed, duly attested, this ____ day of
__________________, 20__.
Print
Name of Transferee
|
By:
|
||||||||
Name:
|
||||||||
Title:
|
[Corporate
Seal]
Attest:
[Assistant]
Secretary
|
Personally
appeared before me the above-named ____________, known or proved to me to be
the
same person who executed the foregoing instrument and to be the ______________
of the Transferee, and acknowledged that he executed the same as his free act
and deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this ____ day of ________ , 20__.
Notary
Public
|
My
Commission expires the _____ day of ____________, 20__
Annex
1
to
Exhibit
I
Certain
Definitions
“Ownership
Interest”:
As to
any Certificate, any ownership interest in the Certificate, including any
interest in the Certificate as its Holder and any other interest in it, whether
direct or indirect, legal or beneficial.
“Permitted
Transferee”:
Any
Person other than (i) the United States, any State or political subdivision
thereof, or any agency or instrumentality of any of the foregoing, (ii) a
foreign government, International Organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers’
cooperatives described in Code Section 521) that is exempt from tax imposed
by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in
Code
Section 860E(c)(1)) with respect to any Class R Certificate, (iv) rural electric
and telephone cooperatives described in Code Section 1381(a)(2)(c), (v) a Person
that is not a U.S. Person and (vi) any other Person so designated by the
Depositor based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Class R Certificate to such Person may cause the Trust Fund to
fail to qualify as a REMIC at any time that certain Certificates are
Outstanding. The terms “United
States,”
“State,”
and
“International
Organization”
have
the meanings in Code Section 7701 or successor provisions. A corporation will
not be treated as an instrumentality of the United States or of any State or
political subdivision thereof if all of its activities are subject to tax,
and,
with the exception of the FHLMC, a majority of its board of directors is not
selected by such governmental unit.
“Person”:
Any
individual, corporation, partnership, joint venture, bank, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Certificate,
including the acquisition of a Certificate by the Depositor.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“United
States Person” or “U.S. Person”:
(i) A
citizen or resident of the United States; (ii) a corporation (or entity treated
as a corporation for tax purposes) created or organized in the United States
or
under the laws of the United States or of any state thereof, including, for
this
purpose, the District of Columbia; (iii) a partnership (or entity treated as
a
partnership for tax purposes) organized in the United States or under the laws
of the United States or of any state thereof, including, for this purpose,
the
District of Columbia (unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United States
income tax purposes regardless of its source; (v) a trust, if a court within
the
United States is able to exercise primary supervision over the administration
of
the trust and one or more U.S. Persons have authority to control all substantial
decisions of the trust; or (vi) to the extent provided in Treasury regulations,
certain trusts in existence on September 20, 1996 that are treated as U.S.
Persons before that date and that elect to continue to be treated as U.S.
Persons.
Annex
2
to
Exhibit
I
Section
5.02 (c) of the Agreement
(c) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date or thereafter transferred, and the Trustee shall not register the Transfer
of any Residual Certificate unless, in addition to the certificates required
to
be delivered to the Trustee under subparagraph (b) above, the Trustee shall
have
been furnished with an affidavit (a “Transfer
Affidavit”)
of the
initial owner or the proposed transferee in the form of Exhibit I (subject
to
the limitations with respect thereto as set forth in Section
5.02(b)).
(iii) Subject
to the limitations set forth in Section 5.02(b), each Person holding or
acquiring any Ownership Interest in a Residual Certificate shall
agree:
(A)
to
obtain
a Transfer Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate;
(B)
to
obtain
a Transfer Affidavit from any Person for whom such Person is acting as nominee,
trustee or agent in connection with any Transfer of a Residual Certificate;
and
(C)
not
to
Transfer its Ownership Interest in a Residual Certificate or to cause the
Transfer of an Ownership Interest in a Residual Certificate to any other Person
if it has actual knowledge that such Person is not a Permitted
Transferee.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of this Section 5.02(c) shall be absolutely null and
void and shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in violation of
this
Section 5.02(c), then the last preceding Permitted Transferee shall be restored
to all rights as Holder thereof retroactive to the date of registration of
Transfer of such Residual Certificate. The Trustee shall not be liable to any
Person for any registration of Transfer of a Residual Certificate that is in
fact not permitted by Section 5.02(b) and this Section 5.02(c) or for making
any
payments due on such Certificate to the Holder thereof or taking any other
action with respect to such Holder under this Agreement so long as the Transfer
was registered after receipt of the related Transfer Affidavit, Transferor
Certificate and either the Rule 144A Letter or the Investment Letter. The
Trustee shall be entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee at the time
it
became a Holder or, at such subsequent time as it became other than a Permitted
Transferee, all payments made on such Residual Certificate at and after either
such time. Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Residual Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Residual Certificate in this Section 5.02(c)
shall cease to apply (and the applicable portions of the legend on a Residual
Certificate may be deleted) with respect to Transfers occurring after delivery
to the Trustee of an Opinion of Counsel, which Opinion of Counsel shall not
be
an expense of the Trust Fund, the Trustee, the Seller or the Servicer, to the
effect that the elimination of such restrictions will not cause the Trust Fund
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust Fund, a
Certificateholder or any other Person. The Opinion of Counsel shall be
accompanied by written notification from each Rating Agency that the removal
of
the restriction will not cause the Rating Agency to downgrade its ratings of
the
Certificates (without regard to the Policy). Each Person holding or acquiring
any Ownership Interest in a Residual Certificate hereby consents to any
amendment of this Agreement that, based on an Opinion of Counsel furnished
to
the Trustee, is reasonably necessary (a) to ensure that the record ownership
of,
or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and
(b)
to provide for a means to compel the Transfer of a Residual Certificate that
is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
Exhibit
J
Form
of
Transferor Certificate
__________,
20__
IndyMac
ABS, Inc.
000
Xxxxx
Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Transfer Unit IN07G1
Series
INDS 2007-1
Re: |
IndyMac
ABS, Inc. Home Equity Loan Asset-Backed Trust, Series INDS 2007-1,
Home
Equity Mortgage Loan Asset-Backed Certificates, Series INDS
2007-1,
Class [ __ ] __
|
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”),
and
are being disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or
solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that
would be deemed, or taken any other action that would result in, a violation
of
Section 5 of the Act and (c) to the extent we are disposing of a Residual
Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very
truly yours,
|
|||||||||||||
Print
Name of Transferor
|
|||||||||||||
By:
|
||||||||
Authorized
Officer
|
||||||||
EXHIBIT
K
[RESERVED]
EXHIBIT
L
RULE
144A
LETTER
____________,
20__
IndyMac
ABS, Inc.
000
Xxxxx
Xxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
DB
Services Tennessee
000
Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Transfer Unit IN07G1
Series
INDS 2007-1
Re: |
Home Equity Mortgage Loan Asset-Backed Trust,
Series INDS 2007-1Home Equity Mortgage Loan Asset-Backed Certificates,
Series INDS 2007-1, 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) (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) we are purchasing a Certificate that is not
a
Class C, Class P or Class R Certificate and has been the subject of an
ERISA-Qualifying Underwriting and we are an insurance company that is purchasing
such Certificates with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE
95-60”))
and
the purchase and holding of such 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) to the extent that the Certificate transferred is
a
Class C Certificate, we are a bankruptcy-remote entity and (g) we are a
“qualified institutional buyer” as that term is defined in Rule 144A under the
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Act.
Annex
1
to Exhibit L
Qualified
Institutional Buyer Status Under SEC Rule 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule
144A”)
because (i) the Buyer owned or invested on a discretionary basis
$____________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
___ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, that is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
___ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934, as amended.
___ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and that is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
___ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940, as amended.
___ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
___ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940, as amended.
3. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer, (ii) securities that are part of an unsold allotment to or subscription
by the Buyer, if the Buyer is a dealer, (iii) securities issued or guaranteed
by
the U.S. or any instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi) repurchase agreements,
(vii) securities owned but subject to a repurchase agreement and (viii)
currency, interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned or invested
on
a discretionary basis by the Buyer, the Buyer used the cost of such securities
to the Buyer and did not include any of the securities referred to in the
preceding paragraph, except (i) where the Buyer reports its securities holdings
in its financial statements on the basis of their market value and (ii) no
current information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the securities
may
be valued at market. Further, in determining such aggregate amount, the Buyer
may have included securities owned by subsidiaries of the Buyer, but only if
such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
1 Buyer
must own or invest on a discretionary basis at least $100,000,000 in securities
unless Buyer is a dealer, and, in that case, Buyer must own or invest on
a
discretionary basis at least $10,000,000 in
securities.
Print
Name of Transferee
|
||||||||
By:
|
||||||||
Name:
|
||||||||
Title:
|
||||||||
Date:
|
Annex
2
to Exhibit L
Qualified
Institutional Buyer Status Under SEC Rule 144A
[For
Transferees that are Registered Investment Companies]
The
undersigned (the “Buyer”)
hereby
certifies as follows to the parties listed in the Rule 144A Transferee
Certificate to which this certification relates with respect to the Certificates
described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule
144A”)
because Buyer is part of a Family of Investment Companies, is such an officer
of
the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
___ The
Buyer
owned $____________ in securities (other than the excluded securities referred
to below) as of the end of the Buyer’s most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies that owned in the aggregate
$________ in securities (other than the excluded securities referred to below)
as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print
Name of Buyer or Advisor
|
||||||||
By:
|
||||||||
Name:
|
||||||||
Title:
|
If
an
Adviser:
Print
Name of Buyer
|
||||||||
Date:
|
EXHIBIT
M
FORM
OF
REQUEST FOR RELEASE
(for
Trustee)
IndyMac
ABS, Inc.,
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2007-1
Loan
Information
Name
of Mortgagor
|
||
Servicer
Loan
No.:
|
Trustee
Name:
|
||
Address:
|
||
Trustee
Mortgage
File No.:
|
The
undersigned Servicer hereby acknowledges that it has received from Deutsche
Bank
National Trust Company, as Trustee for the Holders of Home Equity Mortgage
Loan
Asset-Backed Certificates, of the above-referenced Series, the documents
referred to below (the “Documents”).
All
capitalized terms not otherwise defined in this Request for Release shall have
the meanings given them in the Pooling and Servicing Agreement (the
“Pooling
and Servicing Agreement”)
relating to the above-referenced Series among the Trustee, IndyMac Bank, F.S.B.,
as Seller and Servicer and IndyMac ABS, Inc., as Depositor.
(__)
|
Mortgage
Note dated ____________, ____, in the original principal sum of
$__________, made by __________________ payable to, or endorsed to
the
order of, the Trustee.
|
|
(__)
|
Mortgage
recorded on ________________ as instrument no. __________ in the
County
Recorder’s Office of the County of ____________, State of ___________ in
book/reel/docket __________of official records at page/image
___________.
|
|
(__)
|
Deed
of Trust recorded on ____________ as instrument no. ____________
in the
County Recorder’s Office of the County of ___________, State of __________
in book/reel/docket _____________ of official records at page/image
___________.
|
|
(__)
|
Assignment
of Mortgage or Deed of Trust to the Trustee, recorded on ____________,
____, as instrument no. __________ in the County Recorder’s Office of the
County of ________, State of _________ in book/reel/docket _________
of
official records at page/image _____________.
|
|
(__)
|
Other
documents, including any amendments, assignments or other assumptions
of
the Mortgage Note or Mortgage.
|
|
(__)
|
||
(__)
|
||
(__)
|
||
(__)
|
The
undersigned Servicer hereby acknowledges and agrees as follows:
(1) The
Servicer shall hold and retain possession of the Documents in trust for the
benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2) The
Servicer shall not cause or knowingly permit the Documents to become subject
to,
or encumbered by, any claim, liens, security interest, charges, writs of
attachment or other impositions nor shall the Servicer assert or seek to assert
any claims or rights of setoff to or against the Documents or any proceeds
thereof.
(3) The
Servicer shall return each and every Document previously requested from the
Mortgage File to the Trustee when the need therefor no longer exists, unless
the
Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except as expressly
provided in the Agreement.
(4) The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Servicer shall at all times be earmarked
for the account of the Trustee, and the Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the Servicer’s
possession, custody or control.
IndyMac
Bank, F.S.B.
|
||||||||||||||
By:
|
||||||||||||||
Its:
|
Date:
________________
EXHIBIT
N
FORM
OF
REQUEST FOR RELEASE OF DOCUMENTS
To:
|
Deutsche
Bank National Trust Company, Attn: Trust Admin. -
IN07G1
|
Re:
|
The
Pooling & Servicing Agreement dated as of February 1, 2007 among
IndyMac Bank, F.S.B., as Seller and Servicer, IndyMac ABS, Inc.,
as
Depositor, 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 ABS, Inc., we request the release of the Mortgage Loan File for
the
Mortgage Loans described below, for the reason indicated.
FT
Account #: Pool
#:
Mortgagor’s
Name, Address and Zip Code:
Mortgage
Loan Number:
Reason
for Requesting Documents
(check
one)
_______1. Mortgage
Loan paid in full (IndyMac hereby certifies that all amounts have been
received.)
_______2. Mortgage
Loan Liquidated (IndyMac hereby certifies that all proceeds of foreclosure,
insurance, or other liquidation have been finally received.)
_______3. Mortgage
Loan in Foreclosure.
_______4. Other
(explain): ____________________________________
If
item 1
or 2 above is checked, and if all or part of the Mortgage File was previously
released to us, please release to us our previous receipt on file with you,
as
well as an additional documents in your possession relating to the
above-specified Mortgage Loan. If item 3 or 4 is checked, upon return of all
of
the above documents to you as Trustee, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
IndyMac
Bank, F.S.B.
000
Xxxx
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
By:
|
||
Name:
|
||
Title:
|
||
Date:
|
Trustee
Consent to Release and
Acknowledgment
of Receipt
By:
|
||
Name:
|
||
Title:
|
||
Date:
|
EXHIBIT
O-1
FORM
OF
CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re: IndyMac
ABS Inc.
I,
[identify the certifying individual], certify that:
1. I
have
reviewed this report on Form 10-K and all reports on Form 10-D required to
be
filed in respect of the period covered by this report on Form 10-K of Home
Equity Mortgage Loan Asset-Backed Trust, Series INDS 2007-1 (the “Exchange Act
periodic reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in light of the circumstances under
which
such statements were made, not misleading with respect to the period covered
by
this report;
3. Based
on
my knowledge, the distribution, servicing and other information required to
be
provided under Form 10-D for the period covered by this report is included
in
the Exchange Act periodic reports;
4. Based
on
my knowledge and the servicer compliance statement required in this report
under
Item 1123 of Regulation AB and except as disclosed in the Exchange Act periodic
reports, the servicer has fulfilled its obligations under the servicing
agreement in all material respects; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Deutsche Bank National Trust
Company.
Date:
__________________
[Signature]
[Title]
|
EXHIBIT
O-2
TRUSTEE’S
OFFICER’S CERTIFICATE
I,
____________________, a duly elected and acting officer of Deutsche Bank
National Trust Company (the “Trustee”) hereby certify as follows:
Reference
is hereby made to the Pooling and Servicing Agreement dated as of February
1,
2007 (the “Pooling Agreement”) by and among IndyMac Bank, F.S.B., as seller and
servicer, IndyMac ABS, Inc., as depositor and Deutsche Bank National Trust
Company, as trustee, pursuant to which was created the Home Equity Mortgage
Loan
Asset-Backed Trust, Series INDS 2007-1 (the “Trust”). Capitalized terms used
herein but not defined shall have the meanings assigned to them in the Pooling
Agreement.
1. I
am an
authorized officer of the Trustee and I have reviewed this annual report on
Form
10-K and all reports on Form 10-D required to be filed in respect of the period
covered by this report on Form 10-K of Home Equity Mortgage Loan Asset-Backed
Trust, Series INDS 2007-1 (the “Exchange Act Periodic Reports”);
2. For
purposes of this certificate, “Relevant Information” means the information in
the report on assessment of the Trustee’s compliance with the servicing criteria
set forth in Item 1122(d) of Reg AB (the “Servicing Assessment”), the registered
public accounting firm’s attestation provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Reg AB ( the
“Attestation Report”) applicable to the Trustee and the Monthly Statements
(excluding information provided, or based on information provided, by the
Servicer or any servicer) and those items in Exhibit S attached to the Pooling
and Servicing Agreement which indicate the 4.03 statement or the Trustee as
the
responsible party during the Relevant Year. Based on my knowledge, the Relevant
Information, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this annual report;
and
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in the Monthly
Statements.
4. I
am
responsible for reviewing the activities performed by the Trustee, as servicer
under the Pooling Agreement during the Relevant Year. Based upon the review
required by the Pooling Agreement and except as disclosed in the Servicing
Assessment or Attestation Report, to the best of my knowledge, the Trustee
has
fulfilled its obligations under the Pooling Agreement throughout the Relevant
Year. Relevant Year shall mean 200__.
DATED
as
of _____________, 200____.
By:
_____________________________
Name:
Title:
EXHIBIT
P
[RESERVED]
EXHIBIT
Q
FORM
OF
INTEREST RATE SWAP AGREEMENT
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
000
XXXXXXX XXXXXX
XXX
XXXX,
XXX XXXX 00000
000-000-0000
DATE:
February
14, 2007
TO:
Deutsche
Bank National Trust Company, not in its individual capacity, but solely as
Supplemental Interest Trust Trustee, with respect to Home Equity Mortgage
Loan
Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage Loan Asset-Backed
Certificates, Series INDS 2007-1
ATTENTION:
Trust
Administration IN07G1
TELEPHONE:
714-247-6000
FACSIMILE:
000-000-0000
FROM:
Derivatives
Documentation
TELEPHONE: 000-000-0000
FACSIMILE:
000-000-0000
SUBJECT:
Mortgage
Derivatives Confirmation and Agreement
REFERENCE
NUMBER:
FXINDS071
The
purpose of this long-form confirmation (“Confirmation”)
is to
confirm the terms and conditions of the current Transaction entered into
on the
Trade Date specified below (the “Transaction”)
between
Bear Xxxxxxx Financial Products Inc. (“Party
A”) and
Deutsche Bank National Trust Company, not in its individual capacity, but
solely
as Supplemental Interest Trust Trustee, with respect to Home Equity Mortgage
Loan Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage Loan
Asset-Backed Certificates, Series INDS 2007-1 (“Party B”). Reference is hereby
made to the Pooling and Servicing Agreement, dated as of February
1, 2007, among IndyMac ABS, Inc., as depositor (the “Depositor”), IndyMac Bank,
F.S.B., as seller (in that capacity, the “Seller”) and as servicer (in that
capacity, the “Servicer”), and Deutsche Bank National Trust Company, as trustee
(in that capacity, the “Trustee”) and as supplemental interest trust trustee (in
that capacity, the “Supplemental Interest Trust Trustee”) (the “Pooling
and Servicing Agreement”).
This
Confirmation evidences a complete and binding agreement between you and us
to
enter into the Transaction on the terms set forth below and replaces any
previous agreement between us with respect to the subject matter hereof.
This
Confirmation constitutes a “Confirmation”
and also
constitutes a “Schedule”
as
referred to in the ISDA Master Agreement, and Paragraph 13 of a Credit Support
Annex to the Schedule.
1. |
This
Confirmation shall supplement, form a part of, and be subject to
an
agreement in the form of the ISDA Master Agreement (Multicurrency
- Cross
Border) as published and copyrighted in 1992 by the International
Swaps
and Derivatives Association, Inc. (the “ISDA
Master Agreement”),
as if Party A and Party B had executed an agreement in such form
on the
date hereof, with a Schedule as set forth in Item 4 of this Confirmation,
and an ISDA Credit Support Annex (Bilateral Form - ISDA Agreements
Subject
to New York Law Only version) as published and copyrighted in 1994
by the
International Swaps and Derivatives Association, Inc., with Paragraph
13
thereof as set forth in Annex A hereto (the “Credit
Support Annex”).
For the avoidance of doubt, the Transaction described herein shall
be the
sole Transaction governed by such ISDA Master Agreement. In the
event of
any inconsistency among any of the following documents, the relevant
document first listed shall govern: (i) this Confirmation, exclusive
of
the provisions set forth in Item 4 hereof and Annex A hereto; (ii)
the
provisions set forth in Item 4 hereof, which are incorporated by
reference
into the Schedule; (iii) the Credit Support Annex; (iv) the Definitions;
and (v) the ISDA Master Agreement.
|
Each
reference herein to a “Section” (unless specifically referencing the Pooling and
Servicing Agreement) or to a “Section” “of this Agreement” will be construed as
a reference to a Section of the ISDA Master Agreement; each herein reference
to
a “Part” will be construed as a reference to the provisions herein deemed
incorporated in a Schedule to the ISDA Master Agreement; each reference herein
to a “Paragraph” will be construed as a reference to a Paragraph of the Credit
Support Annex.
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
Type
of
Transaction:
Interest
Rate Swap
Notional
Amount:
With
respect to any Calculation Period, the lesser of (i) the Scheduled Amount
set
forth for such period on Schedule I attached hereto and (ii) the product
of (x)
1/Scale Factor and (y) the aggregate principal balance of the Mortgage Loans
as
of the first day of the Remittance Period in which the related Calculation
Period begins.
Trade
Date:
February
1, 2007
Effective
Date:
February
9, 2007
Termination
Date:
February
25, 2014 subject to adjustment in accordance with the Business Day Convention;
provided, however, that for the purpose of determining the final Fixed Rate
Payer Period End Date, Termination Date shall be subject to No
Adjustment.
Fixed
Amounts:
Fixed
Rate
Payer:
Party
B
Fixed
Rate Payer
Period
End
Dates:
The
25th
calendar
day of each month during the Term of this Transaction, commencing March 25,
2007, and ending on the Termination Date, with No Adjustment.
Fixed
Rate Payer
Payment
Dates:
The
25th
calendar
day of each month during the Term of this Transaction, commencing March 25,
2007, and ending on the Termination Date,
subject
to adjustment in accordance with the Business Day Convention.
Fixed
Rate:
5.468%
Fixed
Amount:
To
be
determined in accordance with the following formula:
Scale
Factor* Fixed Rate * Notional Amount * Fixed Rate Day Count
Fraction
Fixed
Rate Day
Count
Fraction:
30/360
Floating
Amounts:
Floating
Rate Payer:
Party
A
Floating
Rate Payer
Period
End
Dates:
The
25th
calendar
day of each month during the Term of this Transaction, commencing March 25,
2007, and ending on the Termination Date, subject to adjustment in accordance
with the Business Day Convention.
Floating
Rate Payer
Payment
Dates:
The
25th
calendar
day of each month during the Term of this Transaction, commencing March 25,
2007, and ending on the Termination Date, subject to adjustment in accordance
with the Business Day Convention.
Floating
Rate Option: USD-LIBOR-BBA
Designated
Maturity:
One
Month
Floating
Amount:
To
be
determined in accordance with the following formula:
Scale
Factor * Floating Rate Option * Notional Amount * Floating Rate Day Count
Fraction
Designated
Maturity:
One
month
Floating
Rate Day
Count
Fraction:
Actual/360
Reset
Dates:
The
first
day of each Calculation Period.
Compounding: Inapplicable
Business
Days:
New
York
Business
Day Convention: Following
Scale
Factor:
250
Calculation
Agent:
Party
A
3.
Additional
Provisions:
For
each
Calculation Period, Counterparty will make available on its website
xxxxx://xxx.xxx.xx.xxx/xxxx indicating the outstanding principal balance
of the
Mortgage Loans as of the first day of the Remittance Period.
4.
|
Provisions
Deemed Incorporated in a Schedule to the ISDA Master
Agreement:
|
Part
1.
|
Termination
Provisions.
|
For
the
purposes of this Agreement:-
(a)
“Specified
Entity”
will not
apply to Party A or Party B for any purpose.
(b)
|
“Specified
Transaction”
will have the meaning specified in Section
14.
|
(c)
|
Events
of Default.
|
The
statement below that an Event of Default will apply to a specific party means
that upon the occurrence of such an Event of Default with respect to such
party,
the other party shall have the rights of a Non-defaulting Party under Section
6
of this Agreement; conversely, the statement below that such event will not
apply to a specific party means that the other party shall not have such
rights.
(i) |
The
“Failure
to Pay or Deliver”
provisions of Section 5(a)(i) will apply to Party A and will apply
to
Party B; provided, however, that notwithstanding anything to the
contrary
in Section 5(a)(i) or in Paragraph 7 of the Credit Support Annex,
any
failure by Party A to comply with or perform any obligation to
be complied
with or performed by Party A under the Credit Support Annex shall
not
constitute an Event of Default under Section 5(a)(i) unless (A)
a Required
Ratings Downgrade Event has occurred and been continuing for 30
or more
Local Business Days and (B) such failure is not remedied on or
before the
third Local Business Day after notice of such failure is given
to Party
A.
|
(ii) |
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) will apply to Party A and will not
apply to
Party B.
|
(iii) |
The
“Credit
Support Default”
provisions of Section 5(a)(iii) will apply to Party A and will
not apply
to Party B except that Section 5(a)(iii)(1) will apply to Party
B solely
in respect of Party B’s obligations under Paragraph 3(b) of the Credit
Support Annex; provided, however, that notwithstanding anything
to the
contrary in Section 5(a)(iii)(1), any failure by Party A to comply
with or
perform any obligation to be complied with or performed by Party
A under
the Credit Support Annex shall not constitute an Event of Default
under
Section 5(a)(iii) unless (A) a Required Ratings Downgrade Event
has
occurred and been continuing for 30 or more Local Business Days
and (B)
such failure is not remedied on or before the third Local Business
Day
after notice of such failure is given to Party
A.
|
(iv) |
The
“Misrepresentation”
provisions of Section 5(a)(iv) will apply to Party A and will not
apply to
Party B.
|
(v) |
The
“Default
under Specified Transaction”
provisions of Section 5(a)(v) will apply to Party A and will not
apply to
Party B.
|
(vi) |
The
“Cross
Default”
provisions of Section 5(a)(vi) will apply to Party A and will not
apply to
Party B. For purposes of Section 5(a)(vi), solely with respect
to Party
A:
|
“Specified
Indebtedness” will have the meaning specified in Section 14.
“Threshold
Amount” means USD 100,000,000.
(vii) |
The
“Bankruptcy”
provisions of Section 5(a)(vii) will apply to Party A and will
apply to
Party B except that the provisions of Section 5(a)(vii)(2), (6)
(to the
extent that such provisions refer to any appointment contemplated
or
effected by the Pooling and Servicing Agreement or any appointment
to
which Party B has not become subject), (7) and (9) will not apply
to Party
B; provided that, with respect to Party B only, Section 5(a)(vii)(4)
is
hereby amended by adding after the words “against it” the words
“(excluding any proceeding or petition instituted or presented by
Party A
or its Affiliates)”, and Section 5(a)(vii)(8) is hereby amended by
deleting the words “to (7) inclusive” and inserting lieu thereof “, (3),
(4) as amended, (5), (6) as amended, or
(7)”.
|
(viii) |
The
“Merger
Without Assumption”
provisions of Section 5(a)(viii) will apply to Party A and will
apply to
Party B.
|
(d)
Termination
Events.
The
statement below that a Termination Event will apply to a specific party means
that upon the occurrence of such a Termination Event, if such specific party
is
the Affected Party with respect to a Tax Event, the Burdened Party with respect
to a Tax Event Upon Merger (except as noted below) or the non-Affected Party
with respect to a Credit Event Upon Merger, as the case may be, such specific
party shall have the right to designate an Early Termination Date in accordance
with Section 6 of this Agreement; conversely, the statement below that such
an
event will not apply to a specific party means that such party shall not
have
such right; provided, however, with respect to “Illegality” the statement that
such event will apply to a specific party means that upon the occurrence
of such
a Termination Event with respect to such party, either party shall have the
right to designate an Early Termination Date in accordance with Section 6
of
this Agreement.
(i)
The
“Illegality”
provisions of Section 5(b)(i) will apply to Party A and will apply to Party
B.
(ii)
|
The
“Tax
Event”
provisions of Section 5(b)(ii) will apply to Party A and will apply
to
Party B.
|
(iii)
|
The
“Tax
Event Upon Merger”
provisions of Section 5(b)(iii) will apply to Party A and will
apply to
Party B, provided that Party A shall not be entitled to designate
an Early
Termination Date by reason of a Tax Event upon Merger in respect
of which
it is the Affected Party.
|
(iv)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and will
not
apply to Party B.
|
(e)
|
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A and will not
apply to
Party B.
|
(f)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i) |
The
Second Method will apply.
|
(ii) |
Market
Quotation will apply, provided, however, that, if Party A is the
Defaulting Party or the sole Affected Party, the following provisions
will
apply:
|
(A)
|
Section
6(e) is hereby amended by inserting on the first line thereof the
words
“or is effectively designated” after “If an Early Termination Date
occurs”;
|
(B)
|
The
definition of Market Quotation in Section 14 shall be deleted in
its
entirety and replaced with the following:
|
“Market
Quotation” means,
with respect to one or more Terminated Transactions, and a party making the
determination, an amount determined on the basis of one or more Firm Offers
from
Reference Market-makers that are Eligible Replacements. Each Firm Offer will
be
(1) for an amount that would be paid to Party B (expressed as a negative
number)
or by Party B (expressed as a positive number) in consideration of an agreement
between Party B and such Reference Market-maker to enter into a Replacement
Transaction, and (2) made on the basis that Unpaid Amounts in respect of
the
Terminated Transaction or group of Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date are to be included.
The
party making the determination (or its agent) will request each Reference
Market-maker that is an Eligible Replacement to provide its Firm Offer to
the
extent reasonably practicable as of the same day and time (without regard
to
different time zones) on or as soon as reasonably practicable after the
designation or occurrence of the relevant Early Termination Date. The day
and
time as of which those Firm Offers are to be provided (the “bid time”) will be
selected in good faith by the party obliged to make a determination under
Section 6(e), and, if each party is so obliged, after consultation with the
other. If at least one Firm Offer from an Approved Replacement (which, if
accepted, would determine the Market Quotation) is provided at the bid time,
the
Market Quotation will be the Firm Offer (among such Firm Offers as specified
in
clause (C) below) actually accepted by Party B no later than the Business
Day
immediately preceding the Early Termination Date. If no Firm Offer from an
Approved Replacement (which, if accepted, would determine the Market Quotation)
is provided at the bid time, it will be deemed that the Market Quotation
in
respect of such Terminated Transaction or group of Transactions cannot be
determined.
(C)
|
If
more than one Firm Offer from an Approved Replacement (which, if
accepted,
would determine the Market Quotation) is provided at
the bid time,
Party B shall accept the Firm Offer (among such Firm Offers) which
would
require either (x) the lowest payment by Party B to the Reference
Market-maker, to the extent Party B would be required to make a
payment to
the Reference Market-maker or (y) the highest payment from the
Reference
Market-maker to Party B, to the extent the Reference Market-maker
would be
required to make a payment to Party B. If only one Firm Offer from
an
Approved Replacement (which, if accepted, would determine the Market
Quotation) is provided at the bid time, Party B shall accept such
Firm
Offer.
|
(D)
|
If
Party B requests Party A in writing to obtain Market Quotations,
Party A
shall use its reasonable efforts to do so.
|
(E)
|
If
the Settlement Amount is a negative number, Section 6(e)(i)(3)
shall be
deleted in its entirety and replaced with the
following:
|
“(3)
Second
Method and Market Quotation.
If the
Second Method and Market Quotation apply, (I) Party B shall pay to Party
A an
amount equal to the absolute value of the Settlement Amount in respect of
the
Terminated Transactions, (II) Party B shall pay to Party A the Termination
Currency Equivalent of the Unpaid Amounts owing to Party A and (III) Party
A
shall pay to Party B the Termination Currency Equivalent of the Unpaid Amounts
owing to Party B; provided, however, that (x) the amounts payable under the
immediately preceding clauses (II) and (III) shall be subject to netting
in
accordance with Section 2(c) of this Agreement and (y) notwithstanding any
other
provision of this Agreement, any amount payable by Party A under the immediately
preceding clause (III) shall not be netted-off against any amount payable
by
Party B under the immediately preceding clause (I).”
(g)
“Termination
Currency”
means
USD.
(h)
Additional
Termination Events.
Additional Termination Events will apply as provided in Part 5(c).
Part
2. Tax
Matters.
(a)
Tax
Representations.
(i)
|
Payer
Representations.
For the purpose of Section 3(e) of this Agreement:
|
(A)
Party
A
makes the following representation(s):
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to
be made
by it to the other party under this Agreement.
In
making
this representation, it may rely on:
(1)
|
the
accuracy of any representations made by the other party pursuant
to
Section 3(f) of this Agreement;
|
(2)
|
the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii)
of
this Agreement and the accuracy and effectiveness of any document
provided
by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of
this
Agreement; and
|
(3)
|
the
satisfaction of the agreement of the other party contained in Section
4(d)
of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (ii) and the
other party
does not deliver a form or document under Section 4(a)(iii) by
reason of
material prejudice to its legal or commercial
position.
|
(B)
Party
B
makes the following representation(s):
None.
(ii)
Payee
Representations.
For the
purpose of Section 3(f) of this Agreement:
(A)
Party
A
makes the following representation(s):
Party
A
is a corporation organized under the laws of the State of Delaware and its
U.S.
taxpayer identification number is 00-0000000.
(B)
Party
B
makes the following representation(s):
None.
(b)
|
Tax
Provisions.
|
(i)
|
Gross
Up.
Section 2(d)(i)(4) shall not apply to Party B as X, such that Party
B
shall not be required to pay any additional amounts referred to
therein.
|
(ii)
|
Indemnifiable
Tax.
Notwithstanding the definition of “Indemnifiable Tax” in Section 14 of
this Agreement, all Taxes in relation to payments by Party A shall
be
Indemnifiable Taxes (including any Tax imposed in relation to a
Credit
Support Document or in relation to any payment thereunder) unless
(i) such
Taxes are assessed directly against Party B and not by deduction
or
withholding by Party A or (ii) arise as a result of a Change in
Tax Law
(in which case such Tax shall be an Indemnifiable Tax only if such
Tax
satisfies the definition of Indemnifiable Tax provided in Section
14). In
relation to payments by Party B, no Tax shall be an Indemnifiable
Tax.
|
Part
3. Agreement
to Deliver Documents.
(a) For
the
purpose of Section 4(a)(i), tax forms, documents, or certificates to be
delivered are:
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Party
A
|
An
original properly completed and executed United States Internal
Revenue
Service Form W-9 (or any successor thereto) with respect to any
payments
received or to be received by Party A that eliminates U.S. federal
withholding and backup withholding Tax on payments to Party A under
this
Agreement.
|
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
promptly upon the reasonable demand by Party B, (iv) prior to the
expiration or obsolescence of any previously delivered form, and
(v)
promptly upon the information on any such previously delivered
form
becoming inaccurate or incorrect.
|
Party
B
|
(i)
Upon execution of this Agreement, an original properly completed
and
executed United States Internal Revenue Service Form W-9 (or any
successor
thereto) with respect to any payments received or to be received
by the
initial beneficial owner of payments to Party B that eliminates
U.S.
federal withholding and backup withholding Tax on payments to Party
B
under this Agreement, and (ii) thereafter, the appropriate tax
certification form (i.e., IRS Form W-9 or IRS Form X-0XXX, X-0XXX,
X-0XXX
or W-8ECI, as applicable (or any successor form thereto)) with
respect to
any payments received or to be received by the beneficial owner
of
payments to Party B under this Agreement from time to time.
|
(i)
upon execution of this Agreement, (ii) on or before the first payment
date
under this Agreement, including any Credit Support Document, (iii)
in the
case of a tax certification form other than a Form W-9, before
December 31
of each third succeeding calendar year, (iv) promptly upon the
reasonable
demand by Party B, (v) prior to the expiration or obsolescence
of any
previously delivered form, and (vi) promptly upon the knowledge
that
information on any such previously delivered form becoming inaccurate
or
incorrect.
|
(b) For
the
purpose of Section 4(a)(ii), other documents to be delivered are:
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
Party
A and
Party
B
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it
to execute
and deliver the Agreement, this Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under the Agreement, this Confirmation and any Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
Party
A and
Party
B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing the
Agreement, this Confirmation, and any relevant Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement
|
Yes
|
Party
A
|
Annual
Report of Party A containing consolidated financial statements
certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles in the country in
which
Party A is organized
|
Upon
request by Party B
|
Yes
|
Party
A
|
Quarterly
Financial Statements of Party A containing unaudited, consolidated
financial statements of Party A’s fiscal quarter prepared in accordance
with generally accepted accounting principles in the country in
which
Party A is organized
|
Upon
request by Party B
|
Yes
|
Party
A and
Party
B
|
An
opinion of counsel of such party regarding the enforceability of
this
Agreement in a form reasonably satisfactory to the other
party.
|
Upon
the execution and delivery of this Agreement
|
No
|
Party
B
|
An
executed copy of the Pooling and Servicing Agreement
|
Promptly
upon filing of such agreement with the U.S. Securities and Exchange
Commission
|
No
|
Part
4. Miscellaneous.
(a)
|
Address
for Notices:
For the purposes of Section 12(a) of this
Agreement:
|
Address
for notices or communications to Party A:
Address:
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
DPC
Manager
Facsimile:
(000)
000-0000
with
a
copy to:
Address:
Xxx
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
Attention:
Derivative
Operations 7th Floor
Facsimile:
(000)
000-0000
with
a
copy to:
MBIA
Insurance Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
XX 00000
Attention:
IPM-Structured
Phone:
000-000-0000
Fax:
000-000-0000
(For
all
purposes)
Address
for notices or communications to Party B:
Address:
Home
Equity Mortgage Loan Asset Backed
Trust
Series INDS 2007-1
|
C/O
Corporate Trust Office,
|
Deutsche
Bank National Trust Company
|
0000
Xxxx Xx. Xxxxxx Xxxxx
|
Xxxxx
Xxx, XX 00000
|
Attention:
Trust
Administration IN07G1
Facsimile:
(714)
-656-2626
Phone:
|
(000)-000-0000
|
with
a
copy to:
MBIA
Insurance Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
XX 00000
Attention:
IPM-Structured
Phone:
000-000-0000
Fax:
000-000-0000
(For
all
purposes)
(b)
Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not applicable.
Party
B
appoints as its Process Agent: Not applicable.
(c)
|
Offices.
The provisions of Section 10(a) will apply to this Agreement; neither
Party A nor Party B has any Offices other than as set forth in
the Notices
Section.
|
(d)
|
Multibranch
Party.
For the purpose of Section 10(c) of this
Agreement:
|
Party
A
is not a Multibranch Party.
Party
B is not a Multibranch Party.
|
(e)
|
Calculation
Agent.
The Calculation Agent is Party A.
|
(f)
Credit
Support Document.
Party
A:
|
The
Credit Support Annex, and any guarantee in support of Party A’s
obligations under this Agreement.
|
Party
B: The
Credit Support Annex.
(g)
|
Credit
Support Provider.
|
Party
A:
The
guarantor under any guarantee in support of Party A’s obligations under this
Agreement.
Party
B:
None.
(h)
|
Governing
Law.
The parties to this Agreement hereby agree that the law of the
State of
New York shall govern their rights and duties in whole, without
regard to
the conflict of law provisions thereof other than New York General
Obligations Law Sections 5-1401 and 5-1402.
|
(i)
|
Netting
of Payments.
The parties agree that subparagraph (ii) of Section 2(c) will apply
to
each Transaction hereunder.
|
(j)
|
Affiliate.
Party A and Party B shall be deemed to have no Affiliates for purposes
of
this Agreement, including for purposes of Section
6(b)(ii).
|
Part
5. Others
Provisions.
(a)
|
Definitions.
Unless
otherwise specified in a Confirmation, this Agreement and each
Transaction
under this Agreement are subject to the 2000 ISDA Definitions as
published
and copyrighted in 2000 by the International Swaps and Derivatives
Association, Inc. (the “Definitions”),
and will be governed in all relevant respects by the provisions
set forth
in the Definitions, without regard to any amendment to the Definitions
subsequent to the date hereof. The provisions of the Definitions
are
hereby incorporated by reference in and shall be deemed a part
of this
Agreement, except that (i) references in the Definitions to a “Swap
Transaction” shall be deemed references to a “Transaction” for purposes of
this Agreement, and (ii) references to a “Transaction” in this Agreement
shall be deemed references to a “Swap Transaction” for purposes of the
Definitions. Each term capitalized but not defined in this Agreement
shall
have the meaning assigned thereto in the Pooling and Servicing
Agreement.
|
(b)
Amendments
to ISDA Master Agreement.
(i)
|
Single
Agreement.
Section 1(c) is hereby amended by the adding the words “including, for the
avoidance of doubt, the Credit Support Annex” after the words “Master
Agreement”.
|
(ii)
|
[Reserved.]
|
(iii)
|
[Reserved.]
|
(iv)
|
Representations.
Section 3 is hereby amended by adding at the end thereof the following
subsection (g):
|
“(g)
|
Relationship
Between Parties.
|
(1)
|
Nonreliance.
(i) It is not relying on any statement or representation of the
other
party regarding the Transaction (whether written or oral), other
than the
representations expressly made in this Agreement or the Confirmation
in
respect of that Transaction, (ii) it has consulted with its own
legal,
regulatory, tax, business, investment, financial and accounting
advisors
to the extent it has deemed necessary, and it has made its own
investment,
hedging and trading decisions based upon its own judgment and upon
any
advice from such advisors as it has deemed necessary and not upon
any view
expressed by the other party, (iii) it is not relying on any communication
(written or oral) of the other party as investment advice or as
a
recommendation to enter into this Transaction; it being understood
that
information and explanations related to the terms and conditions
of this
Transaction shall not be considered investment advice or a recommendation
to enter into this Transaction, and (iv) it has not received from
the
other party any assurance or guaranty as to the expected results
of this
Transaction.
|
(2)
|
Evaluation
and Understanding. (i) It has the capacity to evaluate (internally
or
through independent professional advice) the Transaction and has
made its
own decision to enter into the Transaction and (ii) it understands
the
terms, conditions and risks of the Transaction and is willing and
able to
accept those terms and conditions and to assume those risks, financially
and otherwise.
|
(3)
|
Purpose.
It is entering into the Transaction for the purposes of managing
its
borrowings or investments, hedging its underlying assets or liabilities
or
in connection with a line of business.
|
(4)
|
Status
of Parties. The other party is not acting as an agent, fiduciary
or
advisor for it in respect of the Transaction.
|
(5)
|
Eligible
Contract Participant. It is an “eligible swap participant” as such term is
defined in, Section 35.1(b)(2) of the regulations (17 C.F.R. 35)
promulgated under, and an “eligible contract participant” as defined in
Section 1(a)(12) of the Commodity Exchange Act, as
amended.”
|
(v)
|
Transfer
to Avoid Termination Event.
Section 6(b)(ii) is hereby amended by (i) deleting the words “or if a Tax
Event Upon Merger occurs and the Burdened Party is the Affected
Party,”
and (ii) deleting the last paragraph thereof and inserting the
following
in lieu thereof:
|
“Notwithstanding
anything to the contrary in Section 7 (as amended herein) and Part 5(f),
any
transfer by Party A under this Section 6(b)(ii) shall not require the consent
of
Party B for such transfer if the following conditions are
satisfied:
(1)
|
the
transferee (the “Section 6 Transferee”) is an Eligible
Replacement;
|
(2)
|
if
the Section 6 Transferee is domiciled in a different country or
political
subdivision thereof from both Party A and Party B, such transfer
satisfies
the Rating Agency Condition;
|
(3)
|
the
Section 6 Transferee will not, as a result of such transfer, be
required
on the next succeeding Scheduled Payment Date to withhold or deduct
on
account of any Tax (except in respect of default interest) amounts in
excess of that which Party A would, on the next succeeding Scheduled
Payment Date have been required to so withhold or deduct unless
the
Section 6 Transferee would be required to make additional payments
pursuant to Section 2(d)(i)(4) corresponding to such excess;
|
(4)
|
a
Termination Event or Event of Default does not occur as a result
of such
transfer; and
|
(5)
|
the
Section 6 Transferee confirms in writing that it will accept all
of the
interests and obligations in and under this Agreement which are
to be
transferred to it in accordance with the terms of this
provision.”
|
(vi)
|
Jurisdiction.
Section
13(b) is hereby amended by: (i) deleting in the second line of
subparagraph (i) thereof the word "non-", (ii) deleting “; and” from the
end of subparagraph 1 and inserting “.” in lieu thereof, and (iii)
deleting the final paragraph
thereof.
|
(vii)
|
Local
Business Day.
The definition of Local Business Day in Section 14 is hereby amended
by
the addition of the words “or any Credit Support Document” after “Section
2(a)(i)” and the addition of the words “or Credit Support Document” after
“Confirmation”.
|
(c)
|
Additional
Termination Events.
The following Additional Termination Events will
apply:
|
(i)
S&P
First Level Downgrade.
If an
S&P Approved Ratings Downgrade Event has occurred and is continuing and
Party A fails to take any action described under Part (5)(d)(i)(1), within
the
time period specified therein, then an Additional Termination Event shall
have
occurred with respect to Party A, Party A shall be the sole Affected Party
with
respect to such Additional Termination Event and all Transactions hereunder
shall be Affected Transaction.
(ii)
Xxxxx’x
First Rating Trigger Collateral.
If (A)
it is not the case that a Xxxxx’x Second Trigger Ratings Event has occurred and
been continuing for 30 or more Local Business Days and (B) Party
A
has failed to comply with or perform any obligation to be complied with or
performed by Party A in accordance with the Credit Support Annex, then an
Additional Termination Event shall have occurred with respect to Party A,
Party
A shall be the sole Affected Party with respect to such Additional Termination
Event and all Transactions hereunder shall be Affected Transactions.
(iii)
S&P
Second Level Downgrade.
If an
S&P Required Ratings Downgrade Event has occurred and is continuing and
Party A fails to take any action described under Part (5)(d)(i)(2) within
the
time period specified therein, then an Additional Termination Event shall
have
occurred with respect to Party A, Party A shall be the sole Affected Party
with
respect to such Additional Termination Event and all Transactions hereunder
shall be Affected Transaction.
(iv)
Xxxxx’x
Second Rating Trigger Replacement.
If (A) a
Xxxxx’x Second Trigger Ratings Event has occurred and been continuing for 30 or
more Local Business Days and (B) (i) at least one Eligible Replacement has
made
a Firm Offer to be the transferee of all of Party A’s rights and obligations
under this Agreement (and such Firm Offer remains an offer that will become
legally binding upon such Eligible Replacement upon acceptance by the offeree)
and/or (ii) an Eligible Guarantor has made a Firm Offer to provide an Eligible
Guarantee (and such Firm Offer remains an offer that will become legally
binding
upon such Eligible Guarantor immediately upon acceptance by the offeree),
then
an Additional Termination Event shall have occurred with respect to Party
A,
Party A shall be the sole Affected Party with respect to such Additional
Termination Event and all Transactions hereunder shall be Affected Transactions.
(v)
Amendment
of the Pooling and Servicing Agreement.
If,
without the prior written consent of Party A where such consent is required
under the Pooling and Servicing Agreement (such consent not to be unreasonably
withheld), an amendment is made to the Pooling and Servicing Agreement which
amendment could reasonably be expected to have a material adverse effect
on the
interests of Party A under this Agreement, an Additional Termination Event
shall
have occurred with respect to Party B, Party B shall be the sole Affected
Party
with respect to such Additional Termination Event and all Transactions hereunder
shall be Affected Transactions.
(vi) Optional
Termination of Securitization.
An
Additional Termination Event shall occur upon the notice to Certificateholders
of an Optional Termination becoming unrescindable in accordance with Article
IX
of the Pooling and Servicing Agreement (such notice, the “Optional
Termination Notice”).
With
respect to such Additional Termination Event: (A) Party B shall be the sole
Affected Party; (B) notwithstanding anything to the contrary in Section 6(b)(iv)
or Section 6(c)(i), the final Distribution Date specified in the Optional
Termination Notice is hereby designated as the Early Termination Date for
this
Additional Termination Event in respect of all Affected Transactions; (C)
Section 2(a)(iii)(2) shall not be applicable to any Affected Transaction
in
connection with the Early Termination Date resulting from this Additional
Termination Event; notwithstanding anything to the contrary in Section 6(c)(ii),
payments and deliveries under Section 2(a)(i) or Section 2(e) in respect
of the
Terminated Transactions resulting from this Additional Termination Event
will be
required to be made through and including the Early Termination Date designated
as a result of this Additional Termination Event; provided, for the avoidance
of
doubt, that any such payments or deliveries that are made on or prior to
such
Early Termination Date will not be treated as Unpaid Amounts in determining
the
amount payable in respect of such Early Termination Date; (D) notwithstanding
anything to the contrary in Section 6(d)(i), (I) if, no later than 4:00 pm
New
York City time on the day that is four Business Days prior to the final
Distribution Date specified in the Optional Termination Notice, the Trustee
requests the amount of the Estimated Swap Termination Payment, Party A shall
provide to the Trustee in writing (which may be done in electronic format)
the
amount of the Estimated Swap Termination Payment no later than 2:00 pm New
York
City time on the following Business Day and (II) if the Trustee provides
written
notice (which may be done in electronic format) to Party A no later than
two
Business Days prior to the final Distribution Date specified in the Optional
Termination Notice that all requirements of the Optional Termination have
been
met, then Party A shall, no later than one Business Day prior to the final
Distribution Date specified in the Optional Termination Notice, make the
calculations contemplated by Section 6(e) of the ISDA Master Agreement (as
amended herein) and provide to the Trustee in writing (which may be done
in
electronic format) the amount payable by either Party B or Party A in respect
of
the related Early Termination Date in connection with this Additional
Termination Event; provided, however, that the amount payable by Party B,
if
any, in respect of the related Early Termination Date shall be the lesser
of (x)
the amount calculated to be due by Party B pursuant to Section 6(e) and (y)
the
Estimated Swap Termination Payment; and (E) notwithstanding anything to the
contrary in this Agreement, any amount due from Party B to Party A in respect
of
this Additional Termination Event will be payable on the final Distribution
Date
specified in the Optional Termination Notice and any amount due from Party
A to
Party B in respect of this Additional Termination Event will be payable one
Business Day prior to the final Distribution Date specified in the Optional
Termination Notice; and (F) for purposes of determining the payment under
Section 6(e) of the ISDA Master Agreement, for all Calculation Periods beginning
on or after the Early Termination Date, the definition of Notional Amount
in the
Confirmation shall be deleted in its entirety and replaced with the following:
“With respect to each Calculation Period, the Scheduled Amount for such
Calculation Period as set forth in the Schedule of Scheduled Amounts attached
hereto multiplied by the quotient of (A) the Notional Amount for the Calculation
Period immediately prior to the Early Termination Date divided by (B) the
Scheduled Amount for the Calculation Period immediately prior to the Early
Termination Date as set forth in the Schedule of Scheduled Amounts attached
hereto.
The
Trustee shall be an express third party beneficiary of this Agreement as
if a
party hereto to the extent of the Trustee’s rights specified herein.
(vii)
Failure
to Pay Class A and Class A-IO Certificates.
If (a)
the Trustee on behalf of the Trust, is unable to pay, or fails or admits
in
writing its inability to pay (1) on any Distribution Date, any Accrued Interest
Certificate Distribution Amount with respect to the Class A and Class A-IO
Certificates or (2) by the Distribution Date immediately following the maturity
date for the Mortgage Loan with the latest maturity date, the ultimate payment
of principal with respect to the Class A Certificates, in either case to
the
extent required pursuant to the terms of the Pooling and Servicing Agreement
to
be paid to the Class A Certificates and (b) such payment is not made on or
before the third Local Business Day after notice has been given by Bear Xxxxxxx
to the Certificate Insurer of the inability to make any such payment, then
an
Additional Termination Event shall have occurred with respect to Party B,
Party
B shall be the sole Affected Party and all Transactions hereunder shall be
Affected Transactions.
(d)
|
Rating
Agency Downgrade.
|
(i)
S&P
Downgrade:
(1)
|
In
the event that an S&P Approved Ratings Downgrade Event occurs and is
continuing, then within 30 days after such rating downgrade, Party
A
shall, subject to the Rating Agency Condition with respect to S&P, at
its own expense, either (i) procure a Permitted Transfer, (ii)
obtain an
Eligible Guarantee or (iii) post collateral in accordance with
the Credit
Support Annex.
|
(2)
|
In
the event that an S&P Required Ratings Downgrade Event occurs and is
continuing, then within 10 Local Business Days after such rating
withdrawal or downgrade, Party A shall, subject to the Rating Agency
Condition with respect to S&P, at its own expense, procure either (i)
a Permitted Transfer or (ii) an Eligible
Guarantee.
|
(ii)
Moody’s
Downgrade.
(1)
|
In
the event that a Moody’s Second Trigger Ratings Event occurs and is
continuing, Party A shall, as soon as reasonably practicable thereafter,
at its own expense and using commercially reasonable efforts, either
(i)
procure a Permitted Transfer or (ii) obtain an Eligible Guarantee.
|
(e)
|
Item
1115 Agreement.
Party A and Party B hereby agree that the terms of the Item 1115
Agreement, dated as of November 15, 2006 (the “Item
1115 Agreement”),
among IndyMac Bank F.S.B (“Sponsor“), IndyMac ABS, Inc, (a “Depositor”),
IndyMac MBS, Inc. (a “Depositor”) and Bear Xxxxxxx Financial Products Inc.
(the “Derivative Provider”) shall be incorporated by reference into this
Agreement and Party B shall be an express third party beneficiary
of the
Item 1115 Agreement. A copy of the Item 1115 Agreement is annexed
hereto
at Annex B.
|
(f)
|
Transfers.
|
(i)
Section
7
is hereby amended to read in its entirety as follows:
“Except
with respect to a Permitted Transfer pursuant to Section 6(b)(ii), Part 5(d),
Part 5(b)(v) or the succeeding sentence, neither Party A nor Party B is
permitted to assign, novate or transfer (whether by way of security or
otherwise) as a whole or in part any of its rights, obligations or interests
under the Agreement or any Transaction unless (a) the prior written consent
of
the other party is obtained and (b) the Rating Agency Condition has been
satisfied with respect to S&P. At any time at which no Relevant Entity has
credit ratings at least equal to the Approved Ratings Threshold, Party A
may
make a Permitted Transfer. Notwithstanding anything to the contrary in this
Agreement, neither Party A nor Party B is permitted to assign, novate or
transfer (whether by way of security or otherwise) as a whole or in part
any of
its rights, obligations or interests under the Agreement or any Transaction
unless the prior written consent of the Certificate Insurer is obtained”
(ii)
|
If
an Eligible Replacement has made a Firm Offer (which remains an
offer that
will become legally binding upon acceptance by Party B) to be the
transferee pursuant to a Permitted Transfer, Party B shall, at
Party A’s
written request and at Party A’s expense, execute such documentation
provided to it as is reasonably deemed necessary by Party A to
effect such
transfer.
|
(g)
|
Non-Recourse.
Party A acknowledges and agree that, notwithstanding any provision
in this
Agreement to the contrary, the obligations of Party B hereunder
are
limited recourse obligations of Party B, payable solely from the
Supplemental Interest Trust and
the proceeds thereof, in accordance with the priority of payments
and
other terms of the Pooling and Servicing Agreement and that Party
A will
not have any recourse to any of the directors, officers, agents,
employees, shareholders or affiliates of Party B with respect to
any
claims, losses, damages, liabilities, indemnities or other obligations
in
connection with any transactions contemplated hereby. In the event
that
the Supplemental Interest Trust and the proceeds thereof, should
be
insufficient to satisfy all claims outstanding and following the
realization of the Supplemental Interest Trust and the proceeds
thereof,
any claims against or obligations of Party B under this Agreement
or any
other confirmation thereunder still outstanding shall be extinguished
and
thereafter not revive. The Supplemental Interest Trust Trustee
shall not
have liability for any failure or delay in making a payment hereunder
to
Party A due to any failure or delay in receiving amounts in the
Supplemental Interest Trust from the Trust created pursuant to
the Pooling
and Servicing Agreement. This provision will survive the termination
of
this Agreement.
|
(h)
|
Timing
of Payments
by Party B upon Early Termination.
Notwithstanding anything to the contrary in Section 6(d)(ii), to
the
extent that all or a portion (in either case, the “Unfunded Amount”) of
any amount that is calculated as being due in respect of any Early
Termination Date under Section 6(e) from Party B to Party A will
be paid
by Party B from amounts other than any upfront payment paid to
Party B by
an Eligible Replacement that has entered a Replacement Transaction
with
Party B, then such Unfunded Amount shall be due on the next subsequent
Distribution Date following the date on which the payment would
have been
payable as determined in accordance with Section 6(d)(ii), and
on any
subsequent Distribution Dates until paid in full (or if such Early
Termination Date is the final Distribution Date, on such final
Distribution Date); provided, however, that if the date on which
the
payment would have been payable as determined in accordance with
Section
6(d)(ii) is a Distribution Date, such payment will be payable on
such
Distribution Date.
|
(i)
|
Rating
Agency Notifications. Notwithstanding
any other provision of this Agreement, no Early Termination Date
shall be
effectively designated hereunder by Party B and no transfer of
any rights
or obligations under this Agreement shall be made by either party
unless
each Swap Rating Agency has been given prior written notice of
such
designation or transfer.
|
(j)
|
No
Set-off.
Except as expressly provided for in Section 2(c), Section 6 or
Part
1(f)(i)(D) hereof, and notwithstanding any other provision of this
Agreement or any other existing or future agreement, each party
irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of
any obligation between it and the other party hereunder against
any
obligation between it and the other party under any other agreements.
Section 6(e) shall be amended by deleting the following sentence:
“The
amount, if any, payable in respect of an Early Termination Date
and
determined pursuant to this Section will be subject to any
Set-off.”.
|
(k)
|
Amendment.
Notwithstanding any provision to the contrary in this Agreement,
no
amendment of either this Agreement or any Transaction under this
Agreement
shall be permitted by either party unless each of the Swap Rating
Agencies
has been provided prior written notice of the same and such amendment
satisfies the Rating Agency Condition with respect to
S&P.
|
(l)
|
Notice
of Certain Events or Circumstances.
Each Party agrees, upon learning of the occurrence or existence
of any
event or condition that constitutes (or that with the giving of
notice or
passage of time or both would constitute) an Event of Default or
Termination Event with respect to such party, promptly to give
the other
Party and to each Swap Rating Agency notice of such event or condition;
provided that failure to provide notice of such event or condition
pursuant to this Part 5(l) shall not constitute an Event of Default
or a
Termination Event.
|
(m) Proceedings.
No
Relevant Entity shall institute against, or cause any other person to institute
against, or join any other person in instituting against Party B, the
Supplemental Interest Trust, or the trust formed pursuant to the Pooling
and
Servicing Agreement, in any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law for a period of one year (or, if longer, the
applicable preference period) and one day following payment in full of the
Certificates and any Notes. This provision will survive the termination of
this
Agreement.
(n) Supplemental
Interest Trust Trustee Liability Limitations.
It is
expressly understood and agreed by the parties hereto that (a) any such
documentation is executed and delivered by Deutsche Bank National Trust Company
not in its individual capacity, but solely as Supplemental Interest Trust
Trustee under the Pooling and Servicing Agreement in the exercise of the
powers
and authority conferred and invested in it thereunder; (b) Deutsche Bank
National Trust Company has been directed pursuant to the Pooling and Servicing
Agreement to enter into this Agreement and to perform its obligations hereunder;
(c) each of the representations, undertakings and agreements herein made
on
behalf of the Supplemental Interest Trust is made and intended not as personal
representations of Deutsche Bank National Trust Company but is made and intended
for the purpose of binding only the Supplemental Interest Trust; (d) nothing
herein contained shall be construed as creating any liability on Deutsche
Bank
National Trust Company, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any,
being
expressly waived by the parties who are signatories to this letter agreement
and
by any person claiming by, through or under such parties, under no circumstances
shall Deutsche
Bank National Trust Company in its individual capacity be personally liable
for
any payments hereunder or for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Agreement;
(e) DBNTC has been directed, pursuant to the Pooling and Servicing Agreement,
to
enter into this Agreement and to perform its obligations hereunder.
Notwithstanding anything herein to the contrary, in no event shall the foregoing
affect (i) the rights of the Counterparty as an intended third party beneficiary
under the Pooling and Servicing Agreement or (ii) the obligations of the
Trustee
under the Pooling and Servicing Agreement.
In
order to comply with laws, rules, regulations and executive orders
in
effect from time to time applicable to banking institutions, including
those relating to the funding of terrorist activities and money
laundering
(“Applicable Law”), Deutsche Bank National Trust Company is required to
obtain, verify and record certain information relating to individuals
and
entities which maintain a business relationship with Deutsche Bank
National Trust Company. Accordingly, each of the parties agree
to provide
to Deutsche Bank National Trust Company upon its request from time
to time
such identifying information and documentation as may be available
for
such party in order to enable the Deutsche Bank National Trust
Company to
comply with Applicable Law.
|
(o)
|
Severability.
If
any term, provision, covenant, or condition of this Agreement,
or the
application thereof to any party or circumstance, shall be held
to be
invalid or unenforceable (in whole or in part) in any respect,
the
remaining terms, provisions, covenants, and conditions hereof shall
continue in full force and effect as if this Agreement had been
executed
with the invalid or unenforceable portion eliminated, so long as
this
Agreement as so modified continues to express, without material
change,
the original intentions of the parties as to the subject matter
of this
Agreement and the deletion of such portion of this Agreement will
not
substantially impair the respective benefits or expectations of
the
parties; provided, however, that this severability provision shall
not be
applicable if any provision of Section 2, 5, 6, or 13 (or any definition
or provision in Section 14 to the extent it relates to, or is used
in or
in connection with any such Section) shall be so held to be invalid
or
unenforceable.
|
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(p)
|
Agent
for Party B. Party
A acknowledges that Party B has appointed the Supplemental Interest
Trust
Trustee as its agent under the Pooling and Servicing Agreement
to carry
out certain functions on behalf of Party B, and that the Supplemental
Interest Trust Trustee shall be entitled to give notices and to
perform
and satisfy the obligations of Party B hereunder on behalf of Party
B.
|
(q)
|
Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any
time and
from time to time, by the other party of any and all communications
between trading, marketing, and operations personnel of the parties
and
their Affiliates, waives any further notice of such monitoring
or
recording, and agrees to notify such personnel of such monitoring
or
recording.
|
(r)
|
Waiver
of Jury Trial.
Each party waives any right it may have to a trial by jury in respect
of
any in respect of any suit, action or proceeding relating to this
Agreement or any Credit Support Document.
|
(s)
|
Form
of ISDA Master Agreement. Party
A and Party B hereby agree that the text of the body of the ISDA
Master
Agreement is intended to be the printed form of the ISDA Master
Agreement
(Multicurrency -
Crossborder) as published and copyrighted in 1992 by the International
Swaps and Derivatives Association,
Inc.
|
(t)
|
Payment
Instructions.
Party A hereby agrees that, unless notified in writing by Party
B of other
payment instructions, any and all amounts payable by Party A to
Party B
under this Agreement shall be paid to the account specified in
Item 4 of
this Confirmation, below.
|
(u)
|
Capacity.
Party A represents to Party B on the date on which Party A enters
into
this Agreement
that it is entering into the Agreement and the Transaction as principal
and not as agent of any person. Deutsche Bank National Trust Company
represents to Party A on the date on which Party
B enters
into this Agreement that Deutsche Bank National Trust Company is
executing
the Agreement not in its individual capacity, but solely as Supplemental
Interest Trust Trustee on behalf of the Supplemental Interest
Trust.
|
(v)
|
Substantial
financial transactions.
Each party hereto is hereby advised and acknowledges as of the
date hereof
that the other party has engaged in (or refrained from engaging
in)
substantial financial transactions and has taken (or refrained
from
taking) other material actions in reliance upon the entry by the
parties
into the Transaction being entered into on the terms and conditions
set
forth herein and in the Pooling and Servicing Agreement relating
to such
Transaction, as applicable. This paragraph shall be deemed repeated
on the
trade date of each Transaction.
|
(w)
|
[Reserved].
|
(x)
|
[Reserved].
|
(y)
Additional
Definitions.
As
used
in this Agreement, the following terms shall have the meanings set forth
below,
unless the context clearly requires otherwise:
“Approved
Ratings Threshold”
means
each of the S&P Approved Ratings Threshold and the Moody’s First Trigger
Ratings Threshold.
“Approved
Replacement” means,
with respect to a Market Quotation, an entity making such Market Quotation,
which entity would satisfy conditions (a), (b), (c) and (d) of the definition
of
Permitted Transfer (as determined by Party B in its sole discretion, acting
in a
commercially reasonable manner) if such entity were a Transferee, as defined
in
the definition of Permitted Transfer.
“Eligible
Guarantee”
means an
unconditional and irrevocable guarantee of all present and future payment
obligations and obligations to post collateral of Party A or an Eligible
Replacement to Party B under this Agreement that is provided by an Eligible
Guarantor as principal debtor rather than surety and that is directly
enforceable by Party B, the form and substance of which guarantee are subject
to
the Rating Agency Condition with respect to S&P.
“Eligible Guarantor”
means an
entity that (A) has credit ratings from S&P at least equal to the S&P
Approved Ratings Threshold and (B) has credit ratings from Moody’s at least
equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Guarantee of an Eligible Guarantor with
credit ratings below the Moody’s First Trigger Ratings Threshold will not cause
a Collateral Event (as defined in the Credit Support Annex) not to occur
or
continue with respect to Moody’s. An Eligible Guarantor shall provide to Party B
in writing all credit ratings described in this definition, upon request
of
Party B
“Eligible
Replacement”
means an
entity (A) (i) (a) that has credit ratings from S&P at least equal to the
S&P Approved Ratings Threshold, and (b) has credit ratings from Moody’s at
least equal to the Moody’s Second Trigger Ratings Threshold, provided, for the
avoidance of doubt, that an Eligible Replacement with credit ratings below
the
Moody’s First Trigger Ratings Threshold will not cause a Collateral Event (as
defined in the Credit Support Annex) not to occur or continue with respect
to
Moody’s, or (ii) the present and future obligations (for the avoidance of doubt,
not limited to payment obligations) of which entity to Party B under this
Agreement are guaranteed pursuant to an Eligible Guarantee and (B) that has
executed an Item 1115 Agreement with Depositor and Sponsor. An Eligible
Guarantor shall provide to Party B in writing all credit ratings described
in
this definition, upon request of Party B
“Estimated
Swap Termination Payment”
means,
with respect to an Early Termination Date, an amount determined by Party
A in
good faith and in a commercially reasonable manner as the maximum payment
that
could be owed by Party B to Party A in respect of such Early Termination
Date
pursuant to Section 6(e) of the ISDA Master Agreement, taking into account
then
current market conditions.
“Firm
Offer”
means
(A) with respect to an Eligible Replacement, a quotation from such Eligible
Replacement (i) in an amount equal to the actual amount payable by or to
Party B
in consideration of an agreement between Party B and such Eligible Replacement
to replace Party A as the counterparty to this Agreement by way of novation
or,
if such novation is not possible, an agreement between Party B and such Eligible
Replacement to enter into a Replacement Transaction (assuming that all
Transactions hereunder become Terminated Transactions), and (ii) that
constitutes an offer by such Eligible Replacement to replace Party A as the
counterparty to this Agreement or enter a Replacement Transaction that will
become legally binding upon such Eligible Replacement upon acceptance by
Party
B, and (B) with respect to an Eligible Guarantor, an offer by such Eligible
Guarantor to provide an Eligible Guarantee that will become legally binding
upon
such Eligible Guarantor upon acceptance by the offeree.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor thereto.
“Moody’s
First Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
First Trigger Ratings Threshold.
“Moody’s
First Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A2” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-1”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating or counterparty rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of
“A1”.
“Moody’s
Second Trigger Ratings Event” means
that no
Relevant Entity has credit ratings from Moody’s at least equal to the Moody’s
Second Trigger Ratings Threshold.
“Moody’s
Second Trigger Ratings Threshold” means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, (i) if such entity has a short-term unsecured and
unsubordinated debt rating from Moody’s, a long-term unsecured and
unsubordinated debt rating or counterparty rating from Moody’s of “A3” and a
short-term unsecured and unsubordinated debt rating from Moody’s of “Prime-2”,
or (ii) if such entity does not have a short-term unsecured and unsubordinated
debt rating from Moody’s, a long-term unsecured and unsubordinated debt rating
or counterparty rating from Moody’s of “A3”.
“Permitted
Transfer” means
a
transfer by novation by Party A pursuant to Section 6(b)(ii), Part
5(d),
the Item 1115 Agreement, Part
5(b)(v), or the second sentence of Section 7 (as amended herein) to a transferee
(the “Transferee”)
of all,
but not less than all, of Party A’s rights, liabilities, duties and obligations
under this Agreement, with
respect to which transfer each of the following conditions is
satisfied:
(a) the
Transferee is an Eligible Replacement; (b) Party A and the Transferee are
both
“dealers in notional principal contracts” within the meaning of Treasury
regulations section 1.1001-4 (in each case as certified by such entity);
(c) as
of the date of such transfer the Transferee would not be required to withhold
or
deduct on account of Tax from any payments under this Agreement or would
be
required to gross up for such Tax under Section 2(d)(i)(4); (d) an Event
of
Default or Termination Event would not occur as a result of such transfer;
(e)
pursuant to a written instrument (the “Transfer
Agreement”),
the
Transferee acquires and assumes all rights and obligations of Party A under
the
Agreement and the relevant Transaction; (f) Party B shall have determined,
in
its sole discretion, acting in a commercially reasonable manner, that such
Transfer Agreement is effective to transfer to the Transferee all, but not
less
than all, of Party A’s rights and obligations under the Agreement and all
relevant Transactions; (g) Party A will be responsible for any costs or expenses
incurred in connection with such transfer (including any replacement cost
of
entering into a replacement transaction); (h) either (A) Moody’s has been given
prior written notice of such transfer and the Rating Agency Condition is
satisfied with respect to S&P or (B) each Swap Rating Agency has been given
prior written notice of such transfer and such transfer is in connection
with
the assignment and assumption of this Agreement without modification of its
terms, other than party names, dates relevant to the effective date of such
transfer, tax representations (provided that the representations in Part
2(a)(i)
are not modified) and any other representations regarding the status of the
substitute counterparty of the type included in Part 5(b)(iv), Part 5(v)(i)(2)
or Part 5(v)(ii), notice information and account details; and (i) such transfer
otherwise complies with the terms of the Pooling and Servicing
Agreement.
“Rating
Agency Condition”
means,
with respect to any particular proposed act or omission to act hereunder
and
each Swap Rating Agency specified in connection with such proposed act or
omission, that the party acting or failing to act must consult with each
of the
specified Swap Rating Agencies and receive from each such Swap Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of any Certificates
or
Notes (when considered without the effect of the Certificate Insurance
Policy).
“Relevant
Entity” means
Party A and, to the extent applicable, a guarantor under an Eligible
Guarantee.
“Replacement
Transaction”
means,
with respect to any Terminated Transaction or group of Terminated Transactions,
a transaction or group of transactions that (i) would have the effect of
preserving for Party B the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming
the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of Terminated
Transactions that would, but for the occurrence of the relevant Early
Termination Date, have been required after that Date, and (ii) has terms
which
are substantially the same as this Agreement, including, without limitation,
rating triggers, Regulation AB compliance, and credit support documentation,
save for the exclusion of provisions relating to Transactions that are not
Terminated Transaction, as determined by Party B in its sole discretion,
acting
in a commercially reasonable manner.
“Required
Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the Required
Ratings Threshold. For purposes of determining whether a Required Ratings
Downgrade Event has occurred, each Relevant Entity shall provide its credit
ratings to Party B in writing, upon request of Party B.
“Required
Ratings Threshold” means
each of the S&P Required Ratings Threshold and the Moody’s Second Trigger
Ratings Threshold.
“S&P”
means
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“S&P
Approved Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Approved Ratings Threshold.
“S&P
Approved Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a short-term unsecured and unsubordinated debt rating
from
S&P of “A-1”, or, if such entity does not have a short-term unsecured and
unsubordinated debt rating from S&P, a long-term unsecured and
unsubordinated debt rating or counterparty rating from S&P of
“A+”.
“S&P
Required Ratings Downgrade Event”
means
that no Relevant Entity has credit ratings at least equal to the S&P
Required Ratings Threshold.
“S&P
Required Ratings Threshold”
means,
with respect to Party A, the guarantor under an Eligible Guarantee or an
Eligible Replacement, a long-term unsecured and unsubordinated debt rating
or
counterparty rating from S&P of “BBB-”.
“Swap
Rating Agencies”
means,
with respect to any date of determination, each of S&P and Xxxxx’x, to the
extent that each such rating agency is then providing a rating for any of
the
Home Equity Mortgage Loan Asset-Backed Certificates, Series INDS 2007-1 (the
“Certificates”) or any notes backed by the Certificates (the
“Notes”).
[Remainder
of this page intentionally left blank.]
5.
Account
Details and Settlement Information:
Payments
to Party A:
Citibank,
N.A., New York
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products
Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Payments
to Party B:
Home
Equity Mortgage Loan Asset Backed Trust Series INDS 2007-1
c/o
Deutsche Bank Trust Co Americas, Xxx Xxxx, XX 00000
ABA:
000-000-000
Account:
00000000
Name:
NYLTD Funds Control-Stars West
Re:
IndyMac INDS Mortgage Loan Trust 2007-1
NEITHER
THE BEAR XXXXXXX COMPANIES INC. NOR ANY SUBSIDIARY OR AFFILIATE OF THE BEAR
XXXXXXX COMPANIES INC. OTHER THAN PARTY A IS AN OBLIGOR OR A CREDIT SUPPORT
PROVIDER ON THIS AGREEMENT.
This
Agreement may be executed in several counterparts, each of which shall be
deemed
an original but all of which together shall constitute one and the same
instrument.
Party
B
hereby agrees to check this Confirmation and to confirm that the foregoing
correctly sets forth the terms of the Transaction by signing in the space
provided below and returning to Party A a facsimile of the fully-executed
Confirmation to 000-000-0000. For inquiries regarding U.S. Transactions,
please
contact Derivatives Documentation by telephone at 000-000-0000. For all other
inquiries please contact Derivatives Documentation by telephone at
000-0-000-0000. Originals will be provided for your execution upon your
request.
We
are
very pleased to have executed this Transaction with you and we look forward
to
completing other transactions with you in the near future.
Very
truly yours,
BEAR
XXXXXXX FINANCIAL PRODUCTS INC.
By: _____________________________
Name:
Title:
Party
B,
acting through its duly authorized signatory, hereby agrees to, accepts and
confirms the terms of the foregoing as of the date hereof.
DEUTSCHE
BANK NATIONAL TRUST COMPANY, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS
SUPPLEMENTAL INTEREST TRUST TRUSTEE, WITH RESPECT TO HOME EQUITY MORTGAGE
LOAN
ASSET-BACKED TRUST, SERIES INDS 2007-1, HOME EQUITY MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES INDS 2007-1
By: ______________________________
Name:
Title:
SCHEDULE
I
(where
for
the purposes of (i) determining Floating Amounts, all such dates subject
to
adjustment in accordance with the Following Business Day Convention and (ii)
determining Fixed Amounts, all such dates subject to No Adjustment.)
From
and including
|
To
but excluding
|
Scheduled
Amount
|
(USD)
|
||
Effective
Date
|
25-Mar-2007
|
1,800,000.00
|
25-Mar-2007
|
25-Apr-2007
|
1,786,384.00
|
25-Apr-2007
|
25-May-2007
|
1,769,536.00
|
25-May-2007
|
25-Jun-2007
|
1,749,396.00
|
25-Jun-2007
|
25-Jul-2007
|
1,726,008.00
|
25-Jul-2007
|
25-Aug-2007
|
1,699,412.00
|
25-Aug-2007
|
25-Sep-2007
|
1,669,688.00
|
25-Sep-2007
|
25-Oct-2007
|
1,637,212.00
|
25-Oct-2007
|
25-Nov-2007
|
1,601,840.00
|
25-Nov-2007
|
25-Dec-2007
|
1,563,728.00
|
25-Dec-2007
|
25-Jan-2008
|
1,523,080.00
|
25-Jan-2008
|
25-Feb-2008
|
1,483,496.00
|
25-Feb-2008
|
25-Mar-2008
|
1,434,916.00
|
25-Mar-2008
|
25-Apr-2008
|
1,397,868.00
|
25-Apr-2008
|
25-May-2008
|
1,361,820.00
|
25-May-2008
|
25-Jun-2008
|
1,326,752.00
|
25-Jun-2008
|
25-Jul-2008
|
1,292,628.00
|
25-Jul-2008
|
25-Aug-2008
|
1,259,428.00
|
25-Aug-2008
|
25-Sep-2008
|
1,212,652.00
|
25-Sep-2008
|
25-Oct-2008
|
1,182,088.00
|
25-Oct-2008
|
25-Nov-2008
|
1,152,348.00
|
25-Nov-2008
|
25-Dec-2008
|
1,123,412.00
|
25-Dec-2008
|
25-Jan-2009
|
1,095,252.00
|
25-Jan-2009
|
25-Feb-2009
|
1,067,852.00
|
25-Feb-2009
|
25-Mar-2009
|
1,025,448.00
|
25-Mar-2009
|
25-Apr-2009
|
1,000,184.00
|
25-Apr-2009
|
25-May-2009
|
975,600.00
|
25-May-2009
|
25-Jun-2009
|
951,680.00
|
25-Jun-2009
|
25-Jul-2009
|
928,396.00
|
25-Jul-2009
|
25-Aug-2009
|
905,732.00
|
25-Aug-2009
|
25-Sep-2009
|
850,932.00
|
25-Sep-2009
|
25-Oct-2009
|
830,144.00
|
25-Oct-2009
|
25-Nov-2009
|
809,904.00
|
25-Nov-2009
|
25-Dec-2009
|
790,208.00
|
25-Dec-2009
|
25-Jan-2010
|
771,036.00
|
25-Jan-2010
|
25-Feb-2010
|
752,376.00
|
25-Feb-2010
|
25-Mar-2010
|
708,396.00
|
25-Mar-2010
|
25-Apr-2010
|
691,352.00
|
25-Apr-2010
|
25-May-2010
|
674,768.00
|
25-May-2010
|
25-Jun-2010
|
658,616.00
|
25-Jun-2010
|
25-Jul-2010
|
642,896.00
|
25-Jul-2010
|
25-Aug-2010
|
627,592.00
|
25-Aug-2010
|
25-Sep-2010
|
587,512.00
|
25-Sep-2010
|
25-Oct-2010
|
573,612.00
|
25-Oct-2010
|
25-Nov-2010
|
560,080.00
|
25-Nov-2010
|
25-Dec-2010
|
546,908.00
|
25-Dec-2010
|
25-Jan-2011
|
534,084.00
|
25-Jan-2011
|
25-Feb-2011
|
521,596.00
|
25-Feb-2011
|
25-Mar-2011
|
485,508.00
|
25-Mar-2011
|
25-Apr-2011
|
474,276.00
|
25-Apr-2011
|
25-May-2011
|
463,344.00
|
25-May-2011
|
25-Jun-2011
|
452,692.00
|
25-Jun-2011
|
25-Jul-2011
|
442,320.00
|
25-Jul-2011
|
25-Aug-2011
|
432,220.00
|
25-Aug-2011
|
25-Sep-2011
|
399,716.00
|
25-Sep-2011
|
25-Oct-2011
|
390,664.00
|
25-Oct-2011
|
25-Nov-2011
|
381,844.00
|
25-Nov-2011
|
25-Dec-2011
|
373,252.00
|
25-Dec-2011
|
25-Jan-2012
|
364,884.00
|
25-Jan-2012
|
25-Feb-2012
|
356,736.00
|
25-Feb-2012
|
25-Mar-2012
|
326,128.00
|
25-Mar-2012
|
25-Apr-2012
|
318,784.00
|
25-Apr-2012
|
25-May-2012
|
311,636.00
|
25-May-2012
|
25-Jun-2012
|
304,664.00
|
25-Jun-2012
|
25-Jul-2012
|
297,876.00
|
25-Jul-2012
|
25-Aug-2012
|
291,264.00
|
25-Aug-2012
|
25-Sep-2012
|
265,304.00
|
25-Sep-2012
|
25-Oct-2012
|
259,400.00
|
25-Oct-2012
|
25-Nov-2012
|
253,644.00
|
25-Nov-2012
|
25-Dec-2012
|
248,040.00
|
25-Dec-2012
|
25-Jan-2013
|
242,576.00
|
25-Jan-2013
|
25-Feb-2013
|
237,252.00
|
25-Feb-2013
|
25-Mar-2013
|
217,584.00
|
25-Mar-2013
|
25-Apr-2013
|
212,820.00
|
25-Apr-2013
|
25-May-2013
|
208,176.00
|
25-May-2013
|
25-Jun-2013
|
203,648.00
|
25-Jun-2013
|
25-Jul-2013
|
199,232.00
|
25-Jul-2013
|
25-Aug-2013
|
194,936.00
|
25-Aug-2013
|
25-Sep-2013
|
176,880.00
|
25-Sep-2013
|
25-Oct-2013
|
172,796.00
|
25-Oct-2013
|
25-Nov-2013
|
168,812.00
|
25-Nov-2013
|
25-Dec-2013
|
164,936.00
|
25-Dec-2013
|
25-Jan-2014
|
161,148.00
|
25-Jan-2014
|
Termination
Date
|
157,460.00
|
ANNEX
A
Paragraph
13 of the Credit Support
Annex
ISDA®
CREDIT
SUPPORT ANNEX
to
the
Schedule to the
ISDA
Master Agreement
dated
as
of February 9, 2007 between
Bear
Xxxxxxx Financial Products Inc. (hereinafter referred to as “Party
A”
or
“Pledgor”)
and
Deutsche
Bank National Trust Company, not in its individual capacity, but solely as
Supplemental Interest Trust Trustee, with respect to Home Equity Mortgage Loan
Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage Loan Asset-Backed
Certificates, Series INDS 2007-1 (hereinafter referred to as “Party
B”
or
“Secured
Party”)
For
the
avoidance of doubt, and notwithstanding anything to the contrary that may be
contained in the Agreement, this Credit Support Annex shall relate solely to
the
Transaction documented in the Confirmation dated February 9, 2007 between Party
A and Party B, Reference Number FXINDS071
Paragraph
13. Elections and Variables.
(a) |
Security
Interest for “Obligations”.
The term “Obligations”
as
used in this Annex includes the following additional
obligations:
|
With
respect to Party A: not applicable.
With
respect to Party B: not applicable.
(b) |
Credit
Support Obligations.
|
(i) |
Delivery
Amount, Return Amount and Credit Support
Amount.
|
(A) |
“Delivery
Amount”
has the meaning specified in Paragraph 3(a) as amended (I) by deleting
the
words “upon a demand made by the Secured Party on or promptly following
a
Valuation Date” and inserting in lieu thereof the words “not later than
the close of business on each Valuation Date” and (II) by deleting in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Value as of that Valuation Date of all Posted
Credit Support held by the Secured Party.” and inserting in lieu thereof
the following:
|
The
“Delivery
Amount”
applicable to the Pledgor for any Valuation Date will equal the greatest of
(1)
|
the
amount by which (a) the S&P Credit Support Amount for such Valuation
Date exceeds (b) the S&P Value as of such Valuation Date of all Posted
Credit Support held by the Secured Party,
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x First Trigger Value as of such
Valuation Date of all Posted Credit Support held by the Secured Party,
and
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Credit Support Amount for
such Valuation Date exceeds (b) the Xxxxx’x Second Trigger Value as of
such Valuation Date of all Posted Credit Support held by the Secured
Party.
|
(B) |
“Return
Amount”
has the meaning specified in Paragraph 3(b) as amended by deleting
in its
entirety the sentence beginning “Unless otherwise specified in Paragraph
13” and ending “(ii) the Credit Support Amount.” and inserting in lieu
thereof the following:
|
The
“Return
Amount”
applicable to the Secured Party for any Valuation Date will equal the least
of
(1)
|
the
amount by which (a) the S&P Value as of such Valuation Date of all
Posted Credit Support held by the Secured Party exceeds (b) the S&P
Credit Support Amount for such Valuation Date,
|
(2)
|
the
amount by which (a) the Xxxxx’x First Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Xxxxx’x First Trigger Credit Support Amount for such Valuation Date,
and
|
(3)
|
the
amount by which (a) the Xxxxx’x Second Trigger Value as of such Valuation
Date of all Posted Credit Support held by the Secured Party exceeds
(b)
the Xxxxx’x Second Trigger Credit Support Amount for such Valuation
Date.
|
(C) |
“Credit
Support Amount”
shall not apply. For purposes of calculating any Delivery Amount
or Return
Amount for any Valuation Date, reference shall be made to the S&P
Credit Support Amount, the Xxxxx’x First Trigger Credit Support Amount, or
the Xxxxx’x Second Trigger Credit Support Amount, in each case for such
Valuation Date, as provided in Paragraphs 13(b)(i)(A) and 13(b)(i)(B),
above.
|
(ii) |
Eligible
Collateral.
|
The
items
set forth on the schedule of Eligible Collateral attached as Schedule A hereto
will qualify as “Eligible
Collateral”
(for
the avoidance of doubt, all Eligible Collateral described in (B) and (C) of
column one of the Collateral Schedule to be denominated in USD).
(iii) |
Other
Eligible Support.
|
The
following items will qualify as “Other
Eligible Support”
for the
party specified:
Not
applicable.
(iv) |
Threshold.
|
(A) |
“Independent
Amount”
means zero with respect to Party A and Party
B.
|
(B) |
“Threshold”
means, with respect to Party A and any Valuation Date, zero if (i)
a
Collateral Event has occurred and has been continuing (x) for at
least 30
days or (y) since this Annex was executed or (ii) a Required Ratings
Downgrade Event has occurred and is continuing; otherwise,
infinity.
|
“Threshold”
means,
with respect to Party B and any Valuation Date, infinity.
(C) |
“Minimum
Transfer Amount” means
USD 100,000 with respect to Party A and Party B; provided, however,
that
if the aggregate Certificate Principal Balance of the Certificates
and the
aggregate principal balance of the Notes rated by S&P is at the time
of any transfer less than USD 50,000,000, the “Minimum
Transfer Amount”
shall be USD 50,000.
|
(D) |
Rounding:
The Delivery Amount will be rounded up to the nearest integral multiple
of
USD 10,000. The Return Amount will be rounded down to the nearest
integral
multiple of USD 10,000.
|
(c) |
Valuation
and Timing.
|
(i) |
“Valuation
Agent”
means Party A.
|
(ii) |
“Valuation
Date” means
each Local Business Day on which any of the S&P Credit Support Amount,
the Xxxxx’x First Trigger Credit Support Amount or the Xxxxx’x Second
Trigger Credit Support Amount is greater than
zero.
|
(iii) |
“Valuation
Time” means
the close of business in the city of the Valuation Agent on the Local
Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided
that the calculations of Value and Exposure will be made as of
approximately the same time on the same date. The Valuation Agent
will
notify each party (or the other party, if the Valuation Agent is
a party)
of its calculations not later than the Notification Time on the applicable
Valuation Date (or in the case of Paragraph 6(d), the Local Business
Day
following the day on which such relevant calculations are
performed).”
|
(iv) |
“Notification
Time” means
11:00 a.m., New York time, on a Local Business Day.
|
(v) |
External
Calculations.
At
any time at which Party A (or, to the extent applicable, its Credit
Support Provider) does not have a long-term unsubordinated and unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall (at
its own expense) obtain external calculations of Party B’s Exposure from
at least two Reference Market-makers on the last Local Business Day
of
each calendar month. Any determination of the S&P Credit Support
Amount shall be based on the greatest of Party B’s Exposure determined by
the Valuation Agent and such Reference Market-makers. Such external
calculation may not be obtained from the same Reference Market-maker
more
than four times in any 12-month
period.
|
(vi) |
Notice
to S&P.
At
any time at which Party A (or, to the extent applicable, its Credit
Support Provider) does not have a long-term unsubordinated and unsecured
debt rating of at least “BBB+” from S&P, the Valuation Agent shall
provide to S&P not later than the Notification Time on the Local
Business Day following each Valuation Date its calculations of Party
B’s
Exposure and the S&P Value of any Eligible Credit Support or Posted
Credit Support for that Valuation Date. The Valuation Agent shall
also
provide to S&P any external marks of Party B’s
Exposure.
|
(d) |
Conditions
Precedent and Secured Party’s Rights and
Remedies.
The following Termination Events will be a “Specified
Condition”
for the party specified (that party being the Affected Party if the
Termination Event occurs with respect to that party): With respect
to
Party A and Party B: None.
|
(e) |
Substitution.
|
(i) |
“Substitution
Date”
has the meaning specified in Paragraph
4(d)(ii).
|
(ii) |
Consent.
If
specified here as applicable, then the Pledgor must obtain the Secured
Party’s consent for any substitution pursuant to Paragraph 4(d):
Inapplicable.
|
(f) |
Dispute
Resolution.
|
(i) |
“Resolution
Time”
means 1:00 p.m. New York time on the Local Business Day following
the date
on which the notice of the dispute is given under Paragraph
5.
|
(ii) |
Value.
Notwithstanding anything to the contrary in Paragraph 12, for the
purpose
of Paragraphs 5(i)(C) and 5(ii), the S&P Value, Xxxxx’x First Trigger
Value, and Xxxxx’x Second Trigger Value, on any date, of Eligible
Collateral other than Cash will be calculated as follows:
|
For
Eligible Collateral in the form of securities listed in Paragraph 13(b)(ii):
the
product of (1)(x) the bid-side quotation at the Valuation Time for such
securities on the principal national securities exchange on which such
securities are listed, or (y) if such securities are not listed on a national
securities exchange, the arithmetic mean of the bid-side quotations for such
securities quoted at the Valuation Time by any three principal market makers
for
such securities selected by the Valuation Agent, provided that if only two
bid-side quotations are obtained, then the arithmetic mean of such two bid-side
quotations will be used, and if only one bid-side quotation is obtained, such
quotation shall be used, or (z) if no such bid price is listed or quoted for
such date, the bid price listed or quoted (as the case may be) at the Valuation
Time for the day next preceding such date on which such prices were available
and (2) the applicable Valuation Percentage for such Eligible
Collateral.
(iii) |
Alternative.
The provisions of Paragraph 5 will
apply.
|
(g) |
Holding
and Using Posted
Collateral.
|
(i) |
Eligibility
to Hold Posted Collateral; Custodians. Party
B (or its Custodian) will be entitled to hold Posted Collateral pursuant
to Paragraph 6(b), provided that the following conditions applicable
to it
are satisfied:
|
(1)
|
it
is not a Defaulting Party.
|
(2)
|
Posted
Collateral consisting of Cash or certificated securities that cannot
be
paid or delivered by book-entry may be held only in any state of
the
United States which has adopted the Uniform Commercial
Code.
|
(3)
|
in
the case of any Custodian for Party B, such Custodian (or, to the
extent
applicable, its parent company or credit support provider) shall
then have
a short-term unsecured and unsubordinated debt rating from S&P of at
least “A-1”.
|
Initially,
the Custodian
for
Party B is: Supplemental Interest Trust Trustee
(ii) Use
of Posted Collateral.
The
provisions of Paragraph 6(c) will not apply to Party B, and Party B
shall
not have any right to use Posted Collateral or take any action specified in
such
Paragraph 6(c).
(h) |
Distributions
and Interest Amount.
|
(i) |
Interest
Rate.
The “Interest
Rate”
will be the actual interest rate earned on Posted Collateral in the
form
of Cash that is held by Party B or its Custodian. Posted Collateral
in the
form of Cash shall be invested in such overnight (or redeemable within
two
Local Business Days of demand) Permitted Investments rated at least
(x)
AAAm or AAAm-G by S&P and (y) Prime-1 by Xxxxx’x or Aaa by Xxxxx’x, as
directed by Party A. Gains and losses incurred in respect of any
investment of Posted Collateral in the form of Cash in Permitted
Investments as directed by Party A shall be for the account of Party
A.
|
(ii) |
Amendment
of Paragraph 6(d)(i) - Distributions.
Clause (d)(i) of Paragraph 6 shall be amended and restated to read
in its
entirety as follows:
|
“(i)
Distributions. If Party B receives Distributions on a Local Business Day, it
will Transfer to Party A not later than the following Local Business Day any
Distributions it receives, and such Distributions will constitute Posted
Collateral and will be subject to the security interest granted under Paragraph
2. For the avoidance of doubt, any Distributions will not be Transferred to
Party A pursuant to Paragraph 6.”
(iii) |
Amendment
of Paragraph 6(d)(ii) - Interest Amount.
Clause (d)(ii) of Paragraph 6 shall be amended and restated to read
in its
entirety as follows:
|
“(ii)
Interest
Amount.
In lieu
of any interest, dividends or other amounts paid with respect to Posted
Collateral in the form of Cash (all of which may be retained by the Secured
Party), the Secured Party will Transfer to the Pledgor on the 25th day of each
calendar month (or if such day is not a Local Business Day, the next Local
Business Day) the Interest Amount. Any Interest Amount or portion thereof not
Transferred pursuant to this Paragraph will constitute Posted Collateral in
the
form of Cash and will be subject to the security interest granted under
Paragraph 2. For purposes of calculating the Interest Amount the amount of
interest calculated for each day of the interest period shall be compounded
monthly.” Secured Party shall not be obligated to transfer any Interest Amount
unless and until it has received such amount.
(i) |
Additional
Representation(s).
There are no additional representations by either
party.
|
(j) |
Other
Eligible Support and Other Posted Support.
|
(i) |
“Value”
with respect to Other Eligible Support and Other Posted Support means:
not
applicable.
|
(ii) |
“Transfer”
with respect to Other Eligible Support and Other Posted Support means:
not
applicable.
|
(k) |
Demands
and Notices.All
demands, specifications and notices under this Annex will be made
pursuant
to the Notices Section of this Agreement, except that any demand,
specification or notice shall be given to or made at the following
addresses, or at such other address as the relevant party may from
time to
time designate by giving notice (in accordance with the terms of
this
paragraph) to the other party:
|
If
to
Party A, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B, at the address specified pursuant to the Notices Section of this
Agreement.
If
to
Party B’s Custodian: at the address designated in writing from time to
time.
(l) |
Address
for Transfers.
Each Transfer hereunder shall be made to the address specified below
or to
an address specified in writing from time to time by the party to
which
such Transfer will be made.
|
Party
A
account details for holding collateral:
Citibank,
N.A., New York
ABA
Number: 000-0000-00, for the account of Bear, Xxxxxxx Securities
Corp.
Account
Number: 0925-3186, for further credit to Bear Xxxxxxx Financial Products
Inc.
Sub-account
Number: 102-04654-1-3
Attention:
Derivatives Department
Party
B’s
Custodian account details for holding collateral:
Home
Equity Mortgage Loan Asset Backed Trust Series INDS 2007-1
c/o
Deutsche Bank Trust Co Americas, Xxx Xxxx, XX 00000
ABA:
000-000-000
Account:
00000000
Name:
NYLTD Funds Control-Stars West
Re:
IndyMac INDS Mortgage Loan Trust 2007-1
(m) |
Other
Provisions.
|
(i) |
Collateral
Account.
Party B shall open and maintain a segregated account, which shall
be an
Eligible Account, and hold, record and identify all Posted Collateral
in
such segregated account.
|
(ii) |
Agreement
as to Single Secured Party and Single Pledgor.
Party A and Party B hereby agree that, notwithstanding anything to
the
contrary in this Annex, (a) the term “Secured Party” as used in this Annex
means only Party B, (b) the term “Pledgor” as used in this Annex means
only Party A, (c) only Party A makes the pledge and grant in Paragraph
2,
the acknowledgement in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9.
|
(iii) |
Calculation
of Value.
Paragraph 4(c) is hereby amended by deleting the word “Value” and
inserting in lieu thereof “S&P Value, Xxxxx’x First Trigger Value,
Xxxxx’x Second Trigger Value”. Paragraph 4(d)(ii) is hereby amended by (A)
deleting the words “a Value” and inserting in lieu thereof “an S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value” and
(B) deleting the words “the Value” and inserting in lieu thereof “S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
Paragraph 5 (flush language) is hereby amended by deleting the word
“Value” and inserting in lieu thereof “S&P Value, Xxxxx’x First
Trigger Value, or Xxxxx’x Second Trigger Value”. Paragraph 5(i) (flush
language) is hereby amended by deleting the word “Value” and inserting in
lieu thereof “S&P Value, Xxxxx’x First Trigger Value, and Xxxxx’x
Second Trigger Value”. Paragraph 5(i)(C) is hereby amended by deleting the
word “the Value, if” and inserting in lieu thereof “any one or more of the
S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger
Value, as may be”. Paragraph 5(ii) is hereby amended by (1) deleting the
first instance of the words “the Value” and inserting in lieu thereof “any
one or more of the S&P Value, Xxxxx’x First Trigger Value, or Xxxxx’x
Second Trigger Value” and (2) deleting the second instance of the words
“the Value” and inserting in lieu thereof “such disputed S&P Value,
Xxxxx’x First Trigger Value, or Xxxxx’x Second Trigger Value”. Each of
Paragraph 8(b)(iv)(B) and Paragraph 11(a) is hereby amended by deleting
the word “Value” and inserting in lieu thereof “least of the S&P
Value, Xxxxx’x First Trigger Value, and Xxxxx’x Second Trigger Value”.
|
(iv) |
Form
of Annex. Party
A and Party B hereby agree that the text of Paragraphs 1 through
12,
inclusive, of this Annex is intended to be the printed form of ISDA
Credit
Support Annex (Bilateral Form - ISDA Agreements Subject to New York
Law
Only version) as
published and copyrighted in 1994 by the International Swaps and
Derivatives Association, Inc.
|
(v) |
Events
of Default.
Clause (iii) of Paragraph 7 shall not apply to Party
B.
|
(vi) |
Expenses.
Notwithstanding anything to the contrary in Paragraph 10, the Pledgor
will
be responsible for, and will reimburse the Secured Party for, all
transfer
and other taxes and other costs involved in any Transfer of Eligible
Collateral.
|
(vii) |
Withholding.
Paragraph 6(d)(ii) is hereby amended by inserting immediately after
“the
Interest Amount” in the fourth line thereof the words “less any applicable
withholding taxes.”
|
(ix) Additional
Definitions.
As used
in this Annex:
“Collateral
Event” means
that no Relevant Entity has credit ratings at least equal to the Approved
Ratings Threshold.
“DV01”
means,
with respect to a Transaction and any date of determination, the estimated
change in the Secured Party’s Transaction Exposure with respect to such
Transaction that would result from a one basis point change in the relevant
swap
curve on such date, as determined by the Valuation Agent in good faith and
in a
commercially reasonable manner. The Valuation Agent shall, upon request of
Party
B, provide to Party B a statement showing in reasonable detail such
calculation.
“Exposure”
has the
meaning specified in Paragraph 12, except that after the word “Agreement” the
words “(assuming, for this purpose only, that Part 1(f) of the Schedule is
deleted)” shall be inserted.
“Local
Business Day”
means,
for purposes of this Annex: any day on which (A) commercial banks are open
for
business (including dealings in foreign exchange and foreign currency deposits)
in New York and the location of Party A, Party B and any Custodian, and (B)
in
relation to a Transfer of Eligible Collateral, any day on which the clearance
system agreed between the parties for the delivery of Eligible Collateral is
open for acceptance and execution of settlement instructions (or in the case
of
a Transfer of Cash or other Eligible Collateral for which delivery is
contemplated by other means a day on which commercial banks are open for
business (including dealings in foreign exchange and foreign deposits) in New
York and the location of Party A, Party B and any Custodian.
“Xxxxx’x
First Trigger Credit Support Amount” means,
for any Valuation Date, the excess, if any, of
(I)
|
(A)
|
for
any Valuation Date on which (I) a Xxxxx’x First Trigger Ratings Event has
occurred and has been continuing (x) for at least 30 Local Business
Days
or (y) since this Annex was executed and (II) it is not the case
that a
Xxxxx’x Second Trigger Ratings Event has occurred and been continuing for
at least 30 Local Business Days, an amount equal to the greater of
(a)
zero and (b) the sum of (i) the Secured Party’s Exposure for such
Valuation Date and (ii) the sum, for each Transaction to which this
Annex
relates, of the lesser of (x) the product of the Xxxxx’x First Trigger
DV01 Multiplier and DV01 for such Transaction and such Valuation
Date and
(y) the product of (i)
Xxxxx’x First Trigger Notional Amount Multiplier, (ii) Scale Factor (as
defined in the related confirmation) for such Transaction, and (iii)
the
Notional Amount for such Transaction for the Calculation Period for
such
Transaction (each as defined in the related Confirmation) which includes
such Valuation Date, or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A such Valuation Date.
“Xxxxx’x
First Trigger DV01 Multiplier”
means
15.
“Xxxxx’x
First Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash, the
bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x First Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Xxxxx’x
First Trigger Notional Amount Multiplier”
means
2%.
“Xxxxx’x
Second Trigger Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
|
(A)
|
for
any Valuation Date on which it is the case that a Xxxxx’x Second Trigger
Ratings Event has occurred and been continuing for at least 30 Local
Business Days, an amount equal to the greatest of (a) zero, (b) the
aggregate amount of the next payment due to be paid by Party A under
each
Transaction to which this Annex relates, and (c) the sum of (x) the
Secured Party’s Exposure for such Valuation Date and (y) the sum, for each
Transaction to which this Annex relates,
of:
|
(1) |
if
such Transaction is not a Transaction-Specific Hedge, the lesser
of (i)
the product of the Xxxxx’x Second Trigger DV01 Multiplier and DV01 for
such Transaction and such Valuation Date and (ii) the product of
(1) the
Xxxxx’x Second Trigger Notional Amount Multiplier, (2) Scale Factor (as
defined in the related confirmation) for such Transaction,
and
(3) the Notional Amount for such Transaction for the Calculation
Period
for such Transaction (each as defined in the related Confirmation)
which
includes such Valuation Date];
or
|
(2) |
if
such Transaction is a Transaction-Specific Hedge, the lesser of (i)
the
product of the Xxxxx’x Second Trigger Transaction-Specific Hedge DV01
Multiplier and DV01 for such Transaction and such Valuation Date
and (ii)
the product of (1) the Xxxxx’x Second Trigger Transaction-Specific Hedge
Notional Amount Multiplier, (2) Scale Factor (as defined in the related
confirmation) for such Transaction and (3) the Notional Amount for
such
Transaction for the Calculation Period for such Transaction (each
as
defined in the related Confirmation) which includes such Valuation Date;
or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“Xxxxx’x
Second Trigger DV01 Multiplier”
means
50.
“Xxxxx’x
Second Trigger Notional Amount Multiplier”
means
8%.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge DV01
Multiplier”
means
65.
“Xxxxx’x
Second Trigger Transaction-Specific Hedge Notional Amount
Multiplier”
means
10%.
“Xxxxx’x
Second Trigger Value”
means,
on any date and with respect to any Eligible Collateral other than Cash, the
bid
price obtained by the Valuation Agent multiplied by the Xxxxx’x Second Trigger
Valuation Percentage for such Eligible Collateral set forth in Paragraph
13(b)(ii).
“Remaining
Weighted Average Maturity” means,
with respect to a Transaction, the expected weighted average maturity for such
Transaction as determined by the Valuation Agent.
“S&P
Credit Support Amount”
means,
for any Valuation Date, the excess, if any, of
(I)
|
(A)
|
for
any Valuation Date on which (i) an S&P Approved Ratings Downgrade
Event has occurred and been continuing for at least 30 days or (ii)
a
S&P Required Ratings Downgrade Event has occurred and is continuing,
an amount equal to the sum of (1) 100.0% of the Secured Party’s Exposure
for such Valuation Date and (2) the sum, for each Transaction to
which
this Annex relates, of the product of (i) the Volatility Buffer for
such
Transaction, (ii) Scale Factor (as defined in the related confirmation)
for such Transaction, and (iii) the Notional Amount of such Transaction
for the Calculation Period of such Transaction (each as defined in
the
related Confirmation) which includes such Valuation Date,
or
|
(B)
|
for
any other Valuation Date, zero,
over
|
(II)
the
Threshold for Party A for such Valuation Date.
“S&P
Value”
means,
on any date and with respect to any Eligible Collateral other than Cash, the
product of (A) the bid price obtained by the Valuation Agent for such Eligible
Collateral and (B) the S&P Valuation Percentage for such Eligible Collateral
set forth in paragraph 13(b)(ii).
“Transaction
Exposure”
means,
for any Transaction, Exposure determined as if such Transaction were the only
Transaction between the Secured Party and the Pledgor.
“Transaction-Specific
Hedge” means
any
Transaction that is (i) an interest rate swap in respect of which (x) the
notional amount of the interest rate swap is “balance guaranteed” or (y) the
notional amount of the interest rate swap for any Calculation Period (as defined
in the related Confirmation) otherwise is not a specific dollar amount that
is
fixed at the inception of the Transaction, (ii) an interest rate cap, (iii)
an
interest rate floor or (iv) an interest rate swaption.
“Valuation
Percentage”
shall
mean, for purposes of determining the S&P Value, Xxxxx’x First Trigger
Value, or Xxxxx’x Second Trigger Value with respect to any Eligible Collateral
or Posted Collateral, the applicable S&P Valuation Percentage, Xxxxx’x First
Trigger Valuation Percentage, or Xxxxx’x Second Trigger Valuation Percentage for
such Eligible Collateral or Posted Collateral, respectively, in each case as
set
forth in Paragraph 13(b)(ii).
“Value”
shall
mean, in respect of any date, the related S&P Value, the related Xxxxx’x
First Trigger Value, and the related Xxxxx’x Second Trigger Value.
“Volatility
Buffer”
means,
for any Transaction, the related percentage set forth in the following table.
The
higher of the S&P credit rating of (i) Party A and (ii) the Credit
Support Provider of Party A, if applicable
|
Remaining
Weighted Average Maturity
up
to 3 years
|
Remaining
Weighted Average Maturity
up
to 5 years
|
Remaining
Weighted Average Maturity
up
to 10 years
|
Remaining
Weighted Average Maturity
up
to 30 years
|
“A-2”
or higher
|
2.75%
|
3.25%
|
4.00%
|
4.75%
|
“A-3”
|
3.25%
|
4.00%
|
5.00%
|
6.25%
|
“BB+”
or
lower
|
3.50%
|
4.50%
|
6.75%
|
7.50%
|
[Remainder
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Annex by their duly authorized
representatives as of the date of the Agreement.
Bear
Xxxxxxx Financial Products Inc.
|
Deutsche
Bank National Trust Company, not in its individual capacity, but
solely as
Supplemental Interest Trust Trustee, with respect to Home Equity
Mortgage
Loan Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage
Loan
Asset-Backed Certificates, Series INDS 2007-1
|
By: ___________________________
Name
Title:
Date:
|
By:
____________________________
Name
Title:
Date
|
SCHEDULE
A
ELIGIBLE
COLLATERAL
ISDA
Collateral Asset Definition
(ICAD) Code
|
Remaining
Maturity in Years
|
S&P
Valuation
Percentage
|
Xxxxx’x
First
Trigger Valuation
Percentage
|
Xxxxx’x
Second
Trigger
Valuation
Percentage
|
(A)
US-CASH
|
N/A
|
100%
|
100%
|
100%
|
(B)
US-TBILL
US-TNOTE
US-TBOND
|
||||
1
or less
|
98.9%
|
100%
|
100%
|
|
More
than 1 but not more than 2
|
98.0%
|
100%
|
99%
|
|
More
than 2 but not more than 3
|
97.4%
|
100%
|
98%
|
|
More
than 3 but not more than 5
|
95.5%
|
100%
|
97%
|
|
More
than 5 but not more than 7
|
93.7%
|
100%
|
96%
|
|
More
than 7 but not more than 10
|
92.5%
|
100%
|
94%
|
|
More
than 10 but not more than 20
|
91.1%
|
100%
|
90%
|
|
More
than 20
|
88.6%
|
100%
|
88%
|
|
(C)
US-GNMA
US-FNMA
US-FHLMC
|
||||
1
or less
|
98.5%
|
100%
|
99%
|
|
More
than 1 but not more than 2
|
97.7%
|
100%
|
99%
|
|
More
than 2 but not more than 3
|
97.3%
|
100%
|
98%
|
|
More
than 3 but not more than 5
|
94.5%
|
100%
|
96%
|
|
More
than 5 but not more than 7
|
93.1%
|
100%
|
93%
|
|
More
than 7 but not more than 10
|
90.7%
|
100%
|
93%
|
|
More
than 10 but not more than 20
|
87.7%
|
100%
|
89%
|
|
More
than 20
|
84.4%
|
100%
|
87%
|
The
ISDA
Collateral Asset Definition (ICAD) Codes used in this Schedule A are taken
from
the Collateral Asset Definitions (First Edition - June 2003) as published and
copyrighted in 2003 by the International Swaps and Derivatives Association,
Inc.
Annex
B
ITEM
1115 AGREEMENT
Item
1115
Agreement (this “Agreement”), dated as of November 15, 2006, among IndyMac Bank
F.S.B. (“Sponsor”), IndyMac ABS, Inc, (a “Depositor”), IndyMac MBS, Inc. (a
“Depositor”) and Bear Xxxxxxx Financial Products Inc. (the “Derivative
Provider”).
RECITALS
WHEREAS,
the Depositors have each filed a Registration Statement on Form S-3 (each,
a
“Registration Statement”) with the U.S. Securities and Exchange Commission (the
“Commission”) for purposes of offering mortgage-backed or asset-backed notes
and/or certificates (the “Securities”) through special purpose vehicles (each,
an “Issuing Entity”);
WHEREAS,
from time to time, on or prior to the closing date of a securitization (the
“Closing Date”) pursuant to which Securities are offered (each, a
“Securitization”), the Derivative Provider may enter into certain derivative
agreements with the Issuing Entity (or a trustee or securities or swap
administrator or other person acting in a similar capacity in connection
with
such Securitization (each, an “Administrator”)), or the Derivative Provider may
enter into certain derivative agreements with Sponsor or an affiliate of
the
Sponsor and such derivative agreements are assigned to the Issuing Entity
or
Administrator (each, in either case, a “Derivative Agreement”), in each case
with respect to such Securitization;
WHEREAS,
the Derivative Provider agrees and acknowledges that the Sponsor and Depositors
are required under Regulation AB (as defined herein) to disclose certain
financial data and/or financial statements with respect to the Derivative
Provider, depending on the applicable “significance percentage” for each
Derivative Agreement as calculated from time to time in accordance with Item
1115 of Regulation AB;
WHEREAS,
the Sponsor, on behalf of itself and each Issuing Entity through which it
effects Securitizations, the Depositors and the Derivative Provider, desire
to
set forth certain rights and obligations with regard to financial data and/or
financial statements which the Sponsor and Depositors and other information
which the Sponsor and Depositors may be required to disclose in accordance
with
Regulation AB (as defined herein) and certain related matters.
NOW,
THEREFORE, in consideration of the mutual agreements set forth herein and
for
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the parties hereby agree as follows:
Section
1. Definitions.
Additional
Termination Event:
With
respect to any Derivative Agreement, as defined in the related Master Agreement.
Affected
Party:
With
respect to any Derivative Agreement, as defined in the related Master Agreement.
Company
Information:
As
defined in Addendum A.
Company
Financial Information:
With
respect to each Securitization, the financial data described in Item 1115(b)(1)
of Regulation AB or the financial statements described in Item 1115(b)(2)
of
Regulation AB, in either case with respect to the Derivative Provider providing
derivative instruments to the related Issuing Entity and/or
Administrator.
GAAP:
As
defined in Section 3(a)(ii).
Exchange
Act:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exchange
Act Reports:
With
respect to an Issuing Entity, all Distribution Reports on Form 10-D, Current
Reports on Form 8-K and Annual Reports on Form 10-K and any amendments thereto,
required to be filed by a Depositor with respect to such Issuing Entity pursuant
to the Exchange Act.
Free
Writing Prospectus:
With
respect to each Securitization, the free writing prospectus or prospectuses
prepared in connection with the public offering and sale of the related
Securities and used to price such Securities.
Master
Agreement:
With
respect to any Derivative Agreement, the ISDA Master Agreement referenced
in
such Derivative Agreement, together with any Schedule, Credit Support Annex
and
Confirmations forming a part thereof or incorporated therein, or, if no such
ISDA Master Agreement exists, the ISDA Master Agreement deemed to apply to
such
Derivative Agreement pursuant to its terms, together with any Schedule, Credit
Support Annex and Confirmations deemed to form a part thereof or to be
incorporated therein.
Prospectus
Supplement:
With
respect to each Securitization, the prospectus supplement prepared in connection
with the public offering and sale of the related Securities.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Section
2. Information
to be Provided by the Derivative Provider.
(a) |
Prior
to printing the Free Writing Prospectus and/or Prospectus Supplement
relating to each Securitization, the Derivative Provider, at its
own
expense, shall:
|
(i) |
provide
to the Depositor the following information and such other information
as
is reasonably requested by the Depositor for the purpose of compliance
with Item 1115(a)(1) of Regulation AB or the Securities Act in
respect of
such Securitization:
|
(A) |
the
Derivative Provider’s legal name (and any
d/b/a),
|
(B) |
the
organizational form of the Derivative Provider,
|
(C) |
a
description of the general character of the business of the Derivative
Provider,
|
(D) |
a
description of any affiliation or relationship (as set forth in
Item 1119)
between the Derivative Provider and any of the following
parties:
|
(1) |
any
servicer that is not affiliated with the Sponsor (or other person
acting
in a similar capacity) identified as such in the related Free Writing
Prospectus and/or Prospectus
Supplement,
|
(2) |
the
trustee (or other person acting in a similar capacity) identified
as such
in the related Free Writing Prospectus and/or Prospectus
Supplement,
|
(3) |
any
originator identified as such in the related Free Writing Prospectus
and/or Prospectus Supplement,
|
(4) |
any
enhancement or support provider identified to the Derivative Provider
by
the Sponsor, and
|
(5) |
any
other material Securitization party identified to the Derivative
Provider
by the Sponsor;
|
(E) |
information
relating to any material legal or governmental proceedings that
would
affect the Derivative Provider’s ability to perform its obligations under
the related Derivative Agreement;
and
|
(F) |
any
other information that is material or otherwise required for the
purpose
of compliance (as determined in good faith by the Depositor its
sole
discretion and acting in a commercially reasonable manner) with
the
Securities Act; and
|
(ii) |
if
reasonably requested by the Depositor for the purpose of compliance
with
Item 1115(b) of Regulation AB with respect to such Securitization,
provide
to the Depositor the Company Financial Information described in
Item
1115(b)(1) of Regulation AB or Item 1115(b)(2) of Regulation AB
(as
specified by the Depositor).
|
(b) |
Following
the Closing Date with respect to each
Securitization:
|
(i) |
for
so long as the Depositor is required to file Exchange Act Reports
in
respect of the related Issuing Entity (which the parties hereto
may assume
shall be for the calendar year following the closing date of the
related
Securitization, unless otherwise notified in writing by the Sponsor),
the
Derivative Provider, at its own expense, shall no later than the
25th
calendar day of each month, notify the Depositor in writing of
any known
material affiliations or relationships that develop following the
Closing
Date between the Derivative Provider and any of the parties specified
in
Section 2(a)(i)(D) (and any other parties identified in writing
by the
Depositor), and provide to the Depositor a description of such
affiliations or relationships;
|
(ii) |
if,
on any Business Day for so long as the Depositor is required to
file
Exchange Act Reports in respect of the related Issuing Entity,
the
Depositor provides written notice to the Derivative Provider that
the
“significance percentage” for any Derivative Agreement relating to such
Securitization (calculated separately or in the aggregate with
other
Derivative Agreements for such Securitization, such aggregation
as
determined by the Depositor in its sole discretion), is (x) 10%
or more
(but less than 20%) or (y) 20% or more, in each case based on a
reasonable
good-faith determination by the Depositor of the “significance percentage”
in accordance with Item 1115 of Regulation AB (the providing of
such
notice, a “Derivative Disclosure Event”), the Derivative Provider, at its
own expense, shall:
|
(A) |
provide
to the Depositor the Company Financial Information described in
(x) Item
1115(b)(1) of Regulation AB or (y) Item 1115(b)(2) of Regulation
AB,
respectively,
|
(B) |
with
respect to each Derivative Agreement entered into in connection
with such
Securitization, cause another entity to replace the Derivative
Provider as
a party to such Derivative Agreement or, if such replacement cannot
be
effected, to enter into a replacement derivative agreement on terms
substantially identical to such Derivative Agreement (as determined
by the
Depositor in its sole discretion), which entity (1) meets or exceeds
(or a
guarantor, as applicable, for such entity meets or exceeds) any
rating
agency criteria set forth in, or otherwise applicable to, such
Derivative
Agreement (as determined by the Depositor in its sole discretion),
(2) has
entered into an agreement with Sponsor and Depositor substantially
in the
form of this Agreement, (3) has
agreed to comply with the immediately preceding clause (A) and
Section
2(b)(iii), and
(4) has been approved by the Depositor (which approval shall not
be
unreasonably withheld),
|
(C) |
obtain
a guaranty of the Derivative Provider’s obligations under the Derivative
Agreement from an affiliate of the Derivative Provider, which affiliate
(1) meets or exceeds any rating agency criteria set forth in, or
otherwise
applicable to, such Derivative Agreement (as determined by the
Depositor
in its sole discretion), (2) has entered into an agreement with
the
Sponsor and Depositor substantially in the form of this Agreement,
(3) has
agreed to comply with the immediately preceding clause (A) and
Section
2(b)(iii) such that the information provided in respect of such
affiliate
will satisfy any requirements under Item 1115 of Regulation AB
that are
applicable to the Derivative Provider (as determined by the Depositor
in
its sole discretion), and (4) has been approved by the Depositor
(which
approval shall not be unreasonably withheld),
or
|
(D) |
post
collateral in an amount sufficient to reduce the “significance percentage”
for purposes of Item 1115 of Regulation AB with respect to any
Derivative
Agreement relating to such Securitization, calculated separately
or in the
aggregate with other Derivative Agreements for such Securitization
(such
aggregation and calculation of the “significance percentage” as determined
by the Depositor in its sole discretion) (1) to 5% if the Depositor
has
notified the Derivative Provider that the “significance percentage” is 10%
or more (but less than 20%) or (2) to 15% if the Depositor has
notified
the Derivative Provider that the “significance percentage” is 20% or more;
and
|
(iii) |
for
so long (A) as the Depositor is required to file Exchange Act Reports
in
respect of the related Issuing Entity (which the parties hereto
may assume
shall be for the calendar year following the closing date of the
related
Securitization, unless otherwise notified in writing by the Sponsor)
and
(B) the “significance percentage” for any Derivative Agreement relating to
such Securitization (calculated separately or in the aggregate
with other
Derivative Agreements for such Securitization) is (x) 10% or more
(but
less than 20%) or (y) 20% or more, in each case based on a reasonable
good-faith determination by the Depositor of the significance percentage
in accordance with Item 1115 of Regulation AB, if the Derivative
Provider
has provided Company Financial Information to the Depositor pursuant
to
Section 2(a)(ii) or Section 2(b)(ii), the Derivative Provider,
at its own
expense, shall within five (5) days of the release of any updated
Company
Financial Information, provide to the Depositor such updated Company
Financial Information.
|
(iv) |
In
no event shall the Derivative Provider be required to calculate
the
“significance percentage” for purposes of this
Agreement.
|
(c) |
The
Derivative Provider shall provide all Company Financial Information
provided pursuant to this Section 2 in Microsoft Word® format, Microsoft
Excel® format or another format suitable for conversion to the format
required for filing by the Depositor with the Commission via the
Electronic Data Gathering and Retrieval System (XXXXX) (for avoidance
of
doubt, Company Financial Information shall not be provided in .pdf
format); alternatively, if permitted by Regulation AB (as determined
by
the Sponsor in its sole discretion), the Derivative Provider may
provide
such Company Financial Information by providing to the Depositor
written
consent to incorporate by reference in Exchange Act Reports of
the
Depositor such Company Financial Information from reports filed
by the
Derivative Provider pursuant to the Exchange Act. In addition,
the
Derivative Provider shall also provide Company Financial Information
provided pursuant to Section 2(a)(ii) in a format appropriate for
use in
the related Free Writing Prospectus and Prospectus Supplement.
If any
Company Financial Information provided pursuant to this Section
2 has been
audited, the Derivative Provider shall cause its outside accounting
firm
to provide to the Depositor such accounting firm’s written consent to the
filing or incorporation by reference in the Exchange Act Reports
of the
Depositor of such accounting firm’s report relating to its audits of such
Company Financial Information.
|
Section
3. Representations
and Warranties of the Derivative Provider.
The
Derivative Provider represents and warrants to the Depositor, as of the date
on
which the Derivative Provider first provides Company Financial Information
to
the Depositor under Section 2(a)(ii), Section 2(b)(ii) or Section 2(b)(iii),
that, except as disclosed in writing to the Depositor prior to such date:
(a) |
the
outside accounting firm that certifies the financial statements
and
supporting schedules included in Company Financial Information,
or which
provides a procedures letter with respect to such Company Financial
Information, (as applicable) is an independent registered public
accounting firm as required by the Securities
Act;
|
(b) |
the
selected financial data and summary financial information included
in the
Company Financial Information present fairly the information shown
therein
and have been compiled on a basis consistent with that of the audited
financial statements of the Derivative
Provider;
|
(c) |
the
financial statements included in the Company Financial Information
present
fairly the consolidated financial position of the Derivative Provider
and
its consolidated subsidiaries as of the dates indicated and the
consolidated results of their operations and cash flows for the
periods
specified; except as otherwise stated in the Company Financial
Information, such financial statements have been prepared in conformity
with United States generally accepted accounting principles (“GAAP”)
applied on a consistent basis; and the supporting schedules included
in
the Company Financial Information present fairly in accordance
with GAAP
the information required to be stated therein; and
|
(d) |
the
Company Financial Information and other Company Information included
in
any Free Writing Prospectus or Prospectus Supplement or referenced
via a
website link or incorporated by reference in the Registration Statement
(including through filing on an Exchange Act Report), at the time
they
were or hereafter are filed with the Commission, complied in all
material
respects with the requirements of Item 1115(b) of Regulation AB
(in the
case of the Company Financial Information), and did not and will
not
contain an untrue statement of a material fact or omit to state
a material
fact required to be stated therein or necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading.
|
Section
4. Third
Party Beneficiaries.
The
Derivative Provider agrees that the terms of this Agreement shall be
incorporated by reference into any Derivative Agreement so that each Issuing
Entity or Administrator that is a party to a Derivative Agreement shall be
an
express third party beneficiary of this Agreement.
Section
5. Indemnification.
The
Derivative Provider indemnification set forth in Addendum A hereto is
incorporated by reference herein.
Section
6. Additional
Termination Events.
(a) |
(i)
Any breach by the Derivative Provider of a representation or warranty
set
forth in Section 3 to the extent made as of a date prior to a Closing
Date, which is not cured by such Closing Date (or, in the case
of
information required under Section 2(a), the date of printing of
the Free
Writing Prospectus or Prospectus Supplement, as applicable), or
(ii) any
breach by the Derivative Provider of a representation or warranty
pursuant
to Section 3 to the extent made as of a date subsequent to such
Closing
Date, or (iii) any failure by the Derivative Provider to comply
with the
requirements of Section 2(a), Section 2(b)(ii) or so much of Section
2(b)(iii) as relates to Section 2(a) or 2(b)(ii), shall immediately
and
automatically, without notice, constitute an Additional Termination
Event
under each Derivative Agreement, entered into in connection with
the
related Securitization with respect to which the Derivative Provider
shall
be the sole Affected Party.
|
(b) |
Any
failure of the Derivative Provider to satisfy the requirements
of Section
2(b)(ii) within ten (10) calendar days of any Derivative Disclosure
Event
shall constitute an Additional Termination Event under each Derivative
Agreement entered into in connection with the related Securitization,
which respect to which the Derivative Provider shall be the sole
Affected
Party.
|
(c) |
Following
a termination of a Derivative Agreement resulting from an Additional
Termination Event set forth in this Section 6, a termination payment
(if
any) shall be payable under such Derivative Agreement by the applicable
party as determined under Section 6(e)(ii) of the related Master
Agreement, with Market Quotation and Second Method being the applicable
method for determining such termination payment (notwithstanding
anything
in such Derivative Agreement to the contrary).
|
(d) |
In
the event that a replacement entity or replacement derivative agreement
has been secured in accordance with Section 2(b)(ii)(B), or a guarantor
has been secured in accordance with Section 2(b)(ii)(C), the Derivative
Provider shall promptly reimburse the Issuing Entity for all reasonable
incidental expenses incurred by the Issuing Entity in connection
with the
replacement of the Derivative Provider or Derivative Agreement
or addition
of such guarantor. The provisions of this paragraph shall not limit
whatever rights the Issuing Entity may have under other provisions
of this
Agreement or otherwise, whether in equity or at law, such as an
action for
damages, specific performance or injunctive
relief.
|
Section
7. Miscellaneous.
(a) |
Construction.
Throughout this Agreement, as the context requires, (i) the singular
tense
and number includes the plural, and the plural tense and number
includes
the singular, (ii) the past tense includes the present, and the
present
tense includes the past, and (iii) references to parties, sections,
schedules, and exhibits mean the parties, sections, schedules,
and
exhibits of and to this Agreement. The section headings in this
Agreement
are inserted only as a matter of convenience, and in no way define,
limit,
extend, or interpret the scope of this Agreement or of any particular
section.
|
(b) |
Assignment.
No party to this Agreement may assign its rights under this Agreement
without the prior written consent of the other parties hereto.
Subject to
the foregoing, this Agreement shall be binding on and inure to
the benefit
of the parties and their respective successors and permitted assigns.
|
(c) |
Notices.
All
notices and other communications hereunder will be in writing (including
by facsimile) and effective only upon receipt, and, if sent to
the
Derivative Provider will be mailed or delivered to Bear Xxxxxxx
Financial
Products Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
DPC Manager, if sent to the Sponsor will be mailed or delivered
to IndyMac
Bank, F.S.B., 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Capital Markets, and if sent to a Depositor will be
mailed or
delivered to IndyMac ABS, Inc. or IndyMac MBS, Inc., as applicable,
000
Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Capital
Markets.
|
(d) |
Governing
Law. This Agreement shall be governed by and construed in accordance
with
the internal laws of the State of New York without regard to the
conflict
of laws principles thereof (other than Sections 5-1401 and 5-1402
of the
New York General Obligations Law).
|
(e) |
Additional
Documents. Each party hereto agrees to execute any and all further
documents and writings and to perform such other actions which
may be or
become necessary or expedient to effectuate and carry out this
Agreement.
|
(f) |
Amendment
and Waiver. This Agreement may not be modified or amended except
by an
instrument in writing signed by the parties hereto. No waiver of
any
provision of this Agreement or of any rights or obligations of
any party
under this Agreement shall be effective unless in writing and signed
by
the party or parties waiving compliance, and shall be effective
only in
the specific instance and for the specific purpose stated in that
writing.
|
(g) |
Counterparts.
This Agreement may be executed in one or more counterparts, each
of which
shall be deemed an original, all of which together shall constitute
one
and the same instrument.
|
(h) |
Severability.
Any provision hereof which is prohibited or unenforceable shall
be
ineffective only to the extent of such prohibition or unenforceability
without invalidating the remaining provisions
hereof.
|
(i) |
Integration.
This Agreement contains the entire understanding of the parties
with
respect to the subject matter hereof. There are no restrictions,
agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than
those
expressly set forth or referred to herein. This Agreement supersedes
all
prior agreements and understandings between the parties with respect
to
its subject matter.
|
IN
WITNESS WHEREOF, the parties hereto 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
BANK F.S.B.
By:
________________________________________
Name:
Title:
INDYMAC
ABS, INC.
By:
________________________________________
Name:
Title:
INDYMAC
MBS, INC.
By:
________________________________________
Name:
Title:
BEAR
XXXXXXX FINANCIAL PRODUCTS, INC.
By:
________________________________________
Name:
Title:
Addendum
A
Indemnification
(a) The
Derivative Provider shall indemnify IndyMac Bank FSB (“IndyMac” or the
“Sponsor”), the related Depositor and Issuing Entity, each person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Depositor or Issuing Entity, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under
the Exchange Act; each broker dealer acting as underwriter, each person who
controls any of such parties (within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the
respective present and former directors, officers, employees and agents of
each
of the foregoing, and shall hold each of them harmless from and against any
losses, damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that any
of
them may sustain arising out of or based upon:
(i) |
(A)
any untrue statement of a material fact contained or alleged to
be
contained in any
information, report, accountants’ consent or other material
provided in written or electronic form under
Section 2 of that certain Item 1115 Agreement, dated as of November
__,
2006, among IndyMac Bank FSB, the Depositor and the Derivative
Provider
(the “Agreement”)
by
or on behalf of the Derivative Provider or
referenced via a website link or incorporated by reference in the
Registration Statement (including through filing on an Exchange
Act
Report) (collectively,
the “Company
Information”),
or (B) the omission or alleged omission to state in the Company
Information a material fact required to be stated in the Company
Information or necessary in order to make the statements therein,
in the
light of the circumstances under which they were made, not
misleading;
|
(ii) |
any
failure by the Derivative Provider to deliver any information,
report,
certification, accountants’ letter or other material when and as required
under Section 2 of the Agreement, other than the information required
by
Sections 2(a)(ii) and 2(b)(ii) of the Agreement; or
|
(iii) |
any
breach by the Derivative Provider of a representation or warranty
set
forth in Section 3 of the Agreement and made as of a date prior
to the
Closing Date, to the extent that such breach is not cured by the
Closing
Date, or any breach by the Derivative Provider of a representation
or
warranty pursuant to Section 3 to the extent made as of a date
subsequent
to the Closing Date.
|
In
the
case of any failure of performance described in clause 2 of this addendum,
the
Derivative Provider shall promptly reimburse the Depositor, the Sponsor or
the
Issuing Entity, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect
to such Securitization Transaction, for all costs reasonably incurred by
each
such party in order to obtain the information, report, certification,
accountants’ letter or other material not delivered as required by the
Derivative Provider.
(b)
IndyMac Bank and the related Depositor shall indemnify the Derivative Provider,
each person who controls the Derivative Provider (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing, and shall hold each of them harmless from and against any losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments, and any other costs, fees and expenses that any of them
may
sustain arising out of or based upon (A) any untrue statement of a material
fact
contained or alleged to be contained in the related Free Writing Prospectus
or
Prospectus Supplement (other than the Company Information), or (B) the omission
or alleged omission to state in related Free Writing Prospectus or Prospectus
Supplement (other than the Company Information) a material fact required
to be
stated in the Free Writing Prospectus or Prospectus Supplement or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Capitalized
terms used and not otherwise defined in this addendum shall have the meanings
set forth in the Agreement.
EXHIBIT
R
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Key:
X
-
obligation
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
NA
|
||
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Trustee
|
Notes
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
X
|
||
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
X
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of Pool Assets serviced by the Servicer.
|
X
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
X
|
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements.
|
X
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
X
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the Servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
X
|
||
1122(d)(4)(v)
|
The
Servicer’s records regarding the pool assets agree with the Servicer’s
records with respect to an obligor’s unpaid principal balance.
|
X
|
||
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
||
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
|
X
|
||
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
X
|
||
Reg
AB Reference
|
Servicing
Criteria
|
Servicer
|
Trustee
|
Notes
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the Servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
||
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
X (with
respect to a swap disclosure event)
|
X
|
EXHIBIT
S
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.24(e). If the Trustee is indicated below as to any item, then
the
Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.03 statement” are required to be
included in the periodic Distribution Date statement under Section 4.03,
provided by the Trustee based on information received from the Servicer; and
b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.03 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
Form
|
Item
|
Description
|
Responsible
Party
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
||
1
|
Distribution
and Pool Performance Information
|
||
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.03
statement
|
||
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.03
statement
|
||
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.03
statement
|
||
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.03
statement
|
||
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
4.03
statement
|
||
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
4.03
statement
|
||
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.03
statement
|
||
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.03
statement
|
||
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable.
|
4.03
statement
|
||
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.03
statement
|
||
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.03
statement
|
||
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted
average
life, weighted average remaining term, pool factors and prepayment
amounts.
|
4.03
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.03
statement.
Form
10-D report: Servicer
|
||
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.03
statement
|
||
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties
or
payments during the distribution period or that have cumulatively
become
material over time.
|
Form
10-D report: Servicer
|
||
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Trustee (based on actual knowledge to the extent not
notified
by the Servicer or the Depositor)and Depositor (to the extent of
actual
knowledge)
|
||
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.03
statement
|
||
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a pre-funding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any pre-funding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Servicer
Form
10-D report: Servicer
|
||
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
N/A
|
||
2
|
Legal
Proceedings
|
||
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
of 20% or more of pool assets as of the Cut-off Date
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Seller
Trustee
|
||
3
|
Sales
of Securities and Use of Proceeds
|
||
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
||
4
|
Defaults
Upon Senior Securities
|
||
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Trustee
|
||
5
|
Submission
of Matters to a Vote of Security Holders
|
||
Information
from Item 4 of Part II of Form 10-Q
|
Party
submitting the matter to Holders for vote
|
||
6
|
Significant
Obligors of Pool Assets
|
||
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||
7
|
Significant
Enhancement Provider Information
|
||
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
8
|
Other
Information
|
||
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
9
|
Exhibits
|
||
Distribution
report
|
Trustee
|
||
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
1.01
|
Entry
into a Material Definitive Agreement
|
||
Disclosure
is required regarding entry into or amendment of any definitive agreement
that
is material to the securitization, even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
||
1.02
|
Termination
of a Material Definitive Agreement
|
||
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is
not
a party.
Examples:
servicing agreement, custodial agreement.
|
Servicer;
or any of the following that is a party to the agreement if Servicer
is
not: Trustee, Sponsor, Depositor
|
||
1.03
|
Bankruptcy
or Receivership
|
||
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Depositor, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, affiliated Servicer, other Servicer
servicing 20% or more of pool assets at time of report, other material
servicers, Trustee, significant obligor, credit enhancer (10% or
more),
derivatives counterparty
|
Depositor
|
||
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
Includes
an early amortization, performance trigger or other event, including
event
of
default,
that would materially alter the payment priority/distribution of
cash
flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.03 statement
|
Servicer/Trustee
(to the extent of actual knowledge)
|
||
3.03
|
Material
Modification to Rights of Security Holders
|
||
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Trustee
|
||
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
5.06
|
Change
in Shell Company Status
|
||
[Not
applicable to ABS issuers]
|
Depositor
|
||
6.01
|
ABS
Informational and Computational Material
|
||
[Not
included in reports to be filed under Section 3.18]
|
Depositor
|
||
6.02
|
Change
of Servicer or Trustee
|
||
Requires
disclosure of any removal, replacement, substitution or addition
of any
servicer, affiliated servicer, other servicer servicing 10% or more
of
pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Servicer
|
||
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
Covers
termination of any enhancement in manner other than by its terms,
the
addition
of
an enhancement, or a material change in the enhancement provided.
Applies
to external credit enhancements as well as derivatives. Reg AB disclosure
about any new enhancement provider is also required.
|
Depositor
or Trustee
|
||
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
6.05
|
Securities
Act Updating Disclosure
|
||
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
If
there are any new servicers or originators required to be disclosed
under
Regulation
AB as a result of the foregoing, provide the information called for
in
Items 1108 and 1110 respectively.
|
Depositor
|
||
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
8.01
|
Other
Events
|
||
Any
event, with respect to which information is not otherwise called
for in
Form 8-K,
that
the registrant deems of importance to security holders.
|
Depositor
|
||
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
9B
|
Other
Information
|
||
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
15
|
Exhibits
and Financial Statement Schedules
|
||
Item
1112(b) - Significant
Obligor Financial Information
|
Servicer
|
||
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
Depositor
|
||
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Sponsor
(Seller)
Depositor
Trustee
Issuing
entity
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
of 20% or more of pool assets as of the Cut-off Date
|
Seller
Depositor
Trustee
Depositor
Servicer
Servicer
|
||
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Sponsor
(Seller)
Depositor
Trustee
Servicer,
affiliated Servicer, other Servicer servicing 20% or more of pool
assets
at time of report, other material servicers
Originator
Credit
Enhancer/Support Provider
Significant
Obligor
|
Seller
Depositor
Trustee
(only as to affiliations between the Trustee and such other parties
listed)
Servicer
Depositor
Depositor
Servicer
|
||
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
Item
1123 - Servicer Compliance Statement
|
Servicer
|
EXHIBIT
T
CERTIFICATE
GUARANTY INSURANCE POLICY
CERTIFICATE
GUARANTY INSURANCE POLICY
POLICY
NUMBER: 491720
OBLIGATIONS:
IndyMac
Home Equity Mortgage Loan Asset-Backed Trust,
Series
INDS 2007-1
Home
Equity Mortgage Loan Asset-Backed Certificates,
Series
INDS 2007-1, Class A and Class A-IO
MBIA
Insurance Corporation (the “Insurer”), in consideration of the payment of the
premium and subject to the terms of this Certificate Guaranty Insurance Policy
(this “Policy”), hereby unconditionally and irrevocably guarantees to any Owner
that an amount equal to each full and complete Insured Payment will be received
from the Insurer by Deutsche Bank National Trust Company, or its successors,
as
trustee for the Owners (the “Trustee”), on behalf of the Owners, for
distribution by the Trustee to each Owner of each Owner’s applicable share of
the Insured Payment. The Insurer’s obligations hereunder with respect to a
particular Insured Payment shall be discharged to the extent funds equal
to the
applicable Insured Payment are received by the Trustee, whether or not such
funds are properly applied by the Trustee. Insured Payments shall be made
only
at the time set forth in this Policy, and no accelerated Insured Payments
shall
be made regardless of any acceleration of the Obligations, unless such
acceleration is at the sole option of the Insurer.
Notwithstanding
the foregoing paragraph, this Policy does not cover shortfalls, if any,
attributable to the liability of the Trust Fund, any REMIC or the Trustee
for
withholding taxes, if any (including interest and penalties in respect of
any
such liability).
The
Insurer shall pay any Insured Payment that is a Preference Amount on the
Business Day following receipt on a Business Day by the Fiscal Agent (as
described below) of (a) a certified copy of the order requiring the return
of a preference payment, (b) an opinion of counsel satisfactory to the
Insurer that such order is final and not subject to appeal, (c) an
assignment in such form as is reasonably required by the Insurer, irrevocably
assigning to the Insurer all rights and claims of the Owner relating to or
arising under the Obligations against the debtor which made such preference
payment or otherwise with respect to such preference payment and
(d) appropriate instruments to effect the appointment of the Insurer as
agent for such Owner in any legal proceeding related to such preference payment,
such instruments being in a form satisfactory to the Insurer, provided that
if
such documents are received after 12:00 noon, New York City time, on
such Business Day, they will be deemed to be received on the following Business
Day. Such payments shall be disbursed to the receiver or trustee in bankruptcy
named in the final order of the court exercising jurisdiction on behalf of
the
Owner and not to any Owner directly unless such Owner has returned principal
or
interest paid on the Obligations to such receiver or trustee in bankruptcy,
in
which case such payment shall be disbursed to such Owner.
The
Insurer shall pay any other amount payable hereunder no later than
12:00 noon, New York City time, on the later of the Distribution Date
on which the related Deficiency Amount is due or the third Business Day
following receipt in New York, New York on a Business Day by U.S. Bank
Trust National Association, as fiscal agent for the Insurer, or any successor
fiscal agent appointed by the Insurer (the “Fiscal Agent”), of a Notice (as
described below), provided that if such Notice is received after
12:00 noon, New York City time, on such Business Day, it will be
deemed to be received on the following Business Day. If any such Notice received
by the Fiscal Agent is not in proper form or is otherwise insufficient for
the
purpose of making claim hereunder, it shall be deemed not to have been received
by the Fiscal Agent for purposes of this paragraph, and the Insurer or the
Fiscal Agent, as the case may be, shall promptly so advise the Trustee and
the
Trustee may submit an amended Notice.
Insured
Payments due hereunder, unless otherwise stated herein, will be disbursed
by the
Fiscal Agent to the Trustee on behalf of the Owners by wire transfer of
immediately available funds in the amount of the Insured Payment less, in
respect of Insured Payments related to Preference Amounts, any amount held
by
the Trustee for the payment of such Insured Payment and legally available
therefor.
The
Fiscal Agent is the agent of the Insurer only, and the Fiscal Agent shall
in no
event be liable to Owners for any acts of the Fiscal Agent or any failure
of the
Insurer to deposit, or cause to be deposited, sufficient funds to make payments
due under this Policy.
Subject
to the terms of the Agreement, the Insurer shall be subrogated to the rights
of
each Owner to receive payments under the Obligations to the extent of any
payment by the Insurer hereunder.
As
used
herein, the following terms shall have the following meanings:
“Agreement”
means
the Pooling and Servicing Agreement, dated as of February 1, 2007, among
IndyMac
Bank, F.S.B., as Seller and Servicer, IndyMac ABS, Inc., as Depositor, and
the
Trustee, as trustee and as supplemental interest trust trustee, in each case
without regard to any amendment or supplement thereto, unless such amendment
or
supplement has been approved in writing by the Insurer.
“Business
Day”
means
any day other than (a) a Saturday or a Sunday or (b) a day on which
banking institutions in the States of New York or California or the city
in
which the Corporate Trust Office or the office of the Insurer is located
are
required or authorized by law or executive order to be closed.
“Deficiency
Amount”
means,
with respect to any Distribution Date, the excess, if any, of Required
Distributions for such Distribution Date over Offered Certificate Available
Funds. Notwithstanding anything to the contrary herein, the aggregate Deficiency
Amount which may be paid under this Policy shall not exceed the Maximum Insured
Amount.
“Final
Scheduled Distribution Date”
means
the Distribution Date in March 2037.
“Insured
Payment”
means
(a) as of any Distribution Date, any Deficiency Amount and (b) any
Preference Amount.
“Maximum
Insured Amount”
means
$449,550,000 in respect of principal, plus interest thereon calculated at
the
applicable Pass-Through Rate for the Class A Certificates plus interest on
the
Notional Amount of the Class A-IO Certificates calculated at the applicable
Pass-Through Rate.
“Notice”
means
the telephonic or telegraphic notice, promptly confirmed in writing by facsimile
substantially in the form of Exhibit A attached hereto, the original of
which is subsequently delivered by registered or certified mail, from the
Trustee specifying the Insured Payment which shall be due and owing on the
applicable Distribution Date.
“Offered
Certificate Available
Funds”
means,
with respect to any Distribution Date, funds allocated from amounts available
pursuant to the Agreement to make distributions on the Class A and Class
A-IO
Certificates on such Distribution Date, including without limitation amounts
on
deposit in the Distribution Account and amounts received under the Interest
Rate
Swap Agreement.
“Owner”
means
each Certificateholder (as defined in the Agreement) of an Obligation who,
on
the applicable Distribution Date, is entitled under the terms of the applicable
Obligations to payment thereunder.
“Preference
Amount” means
any
amount previously distributed to an Owner on the Obligations that is recoverable
and sought to be recovered as a voidable preference by a trustee in bankruptcy
pursuant to the United States Bankruptcy Code (11 U.S.C.), as amended
from time to time, in accordance with a final nonappealable order of a court
having competent jurisdiction.
“Required
Distributions” means,
(a) with respect to any Distribution Date, the sum of (i) the amount of interest
that has accrued on the Obligations at the applicable Pass-Through Rate during
the related Interest Accrual Period, net of any Net Interest Shortfalls and
(ii)
if such Distribution Date is not the Final Scheduled Distribution Date, the
amount, if any, by which the Class Certificate Balance of the Class A
Certificates (after giving effect to all distributions of Offered Certificate
Available Funds on such Distribution Date) exceeds the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Remittance Period, and (b) on the Final Scheduled Distribution Date, the
Class
Certificate Balance of the Class A Certificates (after giving effect to all
distributions to be made on such Distribution Date). Required Distributions
do
not include Net WAC Cap Carry Forward Amounts.
Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Agreement as of the date of execution of this Policy,
without giving effect to any subsequent amendment to or modification of the
Agreement unless such amendment or modification has been approved in writing
by
the Insurer.
Any
notice hereunder or service of process on the Fiscal Agent may be made at
the
address listed below for the Fiscal Agent or such other address as the Insurer
shall specify in writing to the Trustee.
The
notice address of the Fiscal Agent is 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Services, or such
other address as the Fiscal Agent shall specify to the Trustee in
writing.
THIS
POLICY IS BEING ISSUED UNDER AND PURSUANT TO, AND SHALL BE CONSTRUED UNDER,
THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF.
The
insurance provided by this Policy is not covered by the Property/Casualty
Insurance Security Fund specified in Article 76 of the New York
Insurance Law.
This
Policy is not cancelable for any reason. The premium on this Policy is not
refundable for any reason, including payment, or provision being made for
payment, prior to maturity of the Obligations.
IN
WITNESS WHEREOF, the Insurer has caused this Policy to be executed and attested
this 14th day of February 2007.
MBIA
INSURANCE CORPORATION
By
___________________________________
Title:
President
Attest:
By
___________________________________
Title:
Assistant Secretary
EXHIBIT
A
TO
CERTIFICATE GUARANTY INSURANCE
POLICY
NUMBER: 491720
NOTICE
UNDER CERTIFICATE GUARANTY
INSURANCE
POLICY NUMBER: 491720
U.S.
Bank
Trust National Association, as Fiscal Agent
for
MBIA Insurance Corporation
000
Xxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Attention: Corporate
Trust Services
MBIA
Insurance Corporation
000
Xxxx
Xxxxxx
Xxxxxx,
XX 00000
The
undersigned, a duly authorized officer of [NAME OF TRUSTEE] as trustee (the
“Trustee”), hereby certifies to U.S. Bank Trust National Association (the
“Fiscal Agent”) and MBIA Insurance Corporation (the “Insurer”), with reference
to Certificate Guaranty Insurance Policy Number: 491720 (the “Policy”)
issued by the Insurer in respect of the IndyMac Home Equity Mortgage Loan
Asset-Backed Trust, Series INDS 2007-1, Home Equity Mortgage Loan Asset-Backed
Certificates, Series INDS 2007-1, Class A and Class A-IO (the “Obligations”),
that:
(a) the
Trustee is the trustee under the Pooling and Servicing Agreement, dated as
of
February 1, 2007, among IndyMac Bank, F.S.B., as Seller and Servicer, IndyMac
ABS, Inc., as Depositor, and the Trustee, as trustee and as supplemental
interest trust trustee for the Owners;
(b) the
amount due under the definition of Deficiency Amount for the Distribution
Date
occurring on [ ]
(the
“Applicable Distribution Date”) is $[ ]
(the
“Deficiency Amount”);
(c) the
amount of previously distributed payments on the Obligations that is recoverable
and sought to be recovered as a voidable preference by a trustee in bankruptcy
pursuant to the Bankruptcy Code in accordance with a final nonappealable
order
of a court having competent jurisdiction is $[ ]
(the
“Preference Amount”);
(d) the
total
Insured Payment due is $[ ],
which
amount equals the sum of the Deficiency Amount and the Preference
Amount;
(e) the
Trustee is making a claim under and pursuant to the terms of the Policy for
the
dollar amount of the Insured Payment set forth in (b) above to be applied
to the
payment of the Deficiency Amount for the Applicable Distribution Date in
accordance with the Agreement and for the dollar amount of the Insured Payment
set forth in (c) above to be applied to the payment of any Preference Amount;
and
(f) the
Trustee directs that payment of the Insured Payment be made to the following
account by bank wire transfer of federal or other immediately available funds
in
accordance with the terms of the Policy: [TRUSTEE’S ACCOUNT
NUMBER].
Any
capitalized term used in this Notice and not otherwise defined herein shall
have
the meaning assigned thereto in the Policy.
Any
Person Who Knowingly And With Intent To Defraud Any Insurance Company Or
Other
Person Files An Application For Insurance Or Statement Of Claim Containing
Any
Materially False Information, Or Conceals For The Purpose Of Misleading,
Information Concerning Any Fact Material Thereto, Commits A Fraudulent Insurance
Act, Which Is A Crime, And Shall Also Be Subject To A Civil Penalty Not To
Exceed Five Thousand Dollars And The Stated Value Of The Claim For Each Such
Violation.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this Notice under
the
Policy as of the [ ]
day of
[ ],
[ ].
[NAME
OF
TRUSTEE], as Trustee
By
___________________________________
Title
__________________________________