EXHIBIT 99.1
------------
The Pooling and Servicing Agreement.
Exhibit 99.1
EXECUTION COPY
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INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2006
----------------------------------------
INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR21
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-AR21
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TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS 10
Section 1.01. Definitions...........................................................10
Section 1.02. Rules of Construction.................................................46
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES 48
Section 2.01. Conveyance of Mortgage Loans..........................................48
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.......................51
Section 2.03. Representations, Warranties, and Covenants of the Seller
and the Servicer. 53
Section 2.04. Representations and Warranties of the Depositor as to
the Mortgage Loans. 54
Section 2.05. Delivery of Opinion of Counsel in Connection with Substitutions.......55
Section 2.06. Execution and Delivery of Certificates................................55
Section 2.07. REMIC Matters.........................................................55
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE LOANS 56
Section 3.01. Servicer to Service Mortgage Loans....................................56
Section 3.02. [Reserved]............................................................57
Section 3.03. Rights of the Depositor and the Trustee in Respect of the Servicer....57
Section 3.04. [Reserved]............................................................57
Section 3.05. Trustee to Act as Servicer............................................57
Section 3.06. Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account;
Certificate Account; Distribution Account.............................57
Section 3.07. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.......................................................61
Section 3.08. Access to Certain Documentation and Information Regarding
the Mortgage Loans....................................................61
Section 3.09. Permitted Withdrawals from the Certificate Account and the
Distribution Account..................................................61
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies....................................................63
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements.............64
Section 3.12. Realization Upon Defaulted Mortgage Loans.............................65
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.......................67
Section 3.14. Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee...................................68
Section 3.15. Servicing Compensation................................................68
Section 3.16. Access to Certain Documentation.......................................68
Section 3.17. Annual Statement as to Compliance.....................................69
Section 3.18. Errors and Omissions Insurance; Fidelity Bonds........................69
Section 3.19. The Swap Contracts....................................................69
Section 3.20. Notification of Adjustments...........................................70
Section 3.21. Prepayment Charges....................................................70
i
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE SERVICER 72
Section 4.01. Advances..............................................................72
Section 4.02. Priorities of Distribution............................................73
Section 4.03. [Reserved]............................................................77
Section 4.04. [Reserved]............................................................77
Section 4.05. Monthly Statements to Certificateholders..............................77
Section 4.06. Carryover Reserve Fund................................................79
Section 4.07. Determination of Pass-Through Rates for LIBOR Certificates............80
Section 4.08. Swap Trust and Swap Accounts..........................................81
ARTICLE FIVE THE CERTIFICATES 83
Section 5.01. The Certificates......................................................83
Section 5.02. Certificate Register; Registration of Transfer and
Exchange of Certificates. 83
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.....................87
Section 5.04. Persons Deemed Owners.................................................88
Section 5.05. Access to List of Certificateholders' Names and Addresses.............88
Section 5.06. Maintenance of Office or Agency.......................................88
ARTICLE SIX THE DEPOSITOR AND THE SERVICER 89
Section 6.01. Respective Liabilities of the Depositor and the Servicer..............89
Section 6.02. Merger or Consolidation of the Depositor or the Servicer..............89
Section 6.03. Limitation on Liability of the Depositor, the Seller,
the Servicer, and Others..............................................89
Section 6.04. Limitation on Resignation of the Servicer.............................90
ARTICLE SEVEN DEFAULT 91
Section 7.01. Events of Default.....................................................91
Section 7.02. Trustee to Act; Appointment of Successor..............................92
Section 7.03. Notification to Certificateholders....................................93
ARTICLE EIGHT CONCERNING THE TRUSTEE 95
Section 8.01. Duties of the Trustee.................................................95
Section 8.02. Certain Matters Affecting the Trustee.................................95
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.................97
Section 8.04. Trustee May Own Certificates..........................................97
Section 8.05. Trustee's Fees and Expenses...........................................97
Section 8.06. Eligibility Requirements for the Trustee..............................98
Section 8.07. Resignation and Removal of the Trustee................................98
Section 8.08. Successor Trustee.....................................................99
Section 8.09. Merger or Consolidation of the Trustee...............................100
Section 8.10. Appointment of Co-Trustee or Separate Trustee........................100
Section 8.11. Tax Matters..........................................................101
Section 8.12. Determination of Class A-1 Amount....................................103
ii
ARTICLE NINE TERMINATION 105
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage Loans.......105
Section 9.02. Final Distribution on the Certificates...............................106
Section 9.03. Additional Termination Requirements..................................107
ARTICLE TEN MISCELLANEOUS PROVISIONS 108
Section 10.01.Amendment............................................................108
Section 10.02.Recordation of Agreement; Counterparts...............................109
Section 10.03.Governing Law........................................................110
Section 10.04.Intention of Parties.................................................110
Section 10.05.Notices..............................................................110
Section 10.06.Severability of Provisions...........................................111
Section 10.07.Assignment...........................................................111
Section 10.08.Limitation on Rights of Certificateholders...........................111
Section 10.09.Inspection and Audit Rights..........................................112
Section 10.10.Certificates Nonassessable and Fully Paid............................112
Section 10.11.Official Record......................................................113
Section 00.00.Xxxxxxxxxx of Assets.................................................113
Section 10.13.Qualifying Special Purpose Entity....................................113
ARTICLE ELEVEN EXCHANGE ACT REPORTING 114
Section 11.01.Filing Obligations...................................................114
Section 11.02.Form 10-D Filings....................................................114
Section 11.03.Form 8-K Filings.....................................................115
Section 11.04.Form 10-K Filings....................................................115
Section 11.05.Xxxxxxxx-Xxxxx Certification.........................................116
Section 11.06.Form 15 Filing.......................................................116
Section 00.00.Xxxxxx on Assessment of Compliance and Attestation...................116
Section 11.08.Use of Subcontractors................................................118
Section 11.09.Amendments...........................................................118
iii
SCHEDULES
Schedule I: Mortgage Loan Schedule..................................................S-I-1
Schedule II: Representations and Warranties of the Seller/Servicer..................S-II-1
Schedule III: Representations and Warranties as to the Mortgage Loans...............S-III-1
Schedule IV: Form of Monthly Report.................................................S-IV-1
EXHIBITS
Exhibit A: Form of Senior Certificate................................................A-1
Exhibit B: Form of Subordinated Certificate..........................................B-1
Exhibit C: Form of Class A-R Certificate.............................................C-1
Exhibit D: [Reserved]................................................................D-1
Exhibit E Form of Reverse of Certificates...........................................E-1
Exhibit F: Form of Class P Certificates..............................................F-1
Exhibit G-1: Form of Initial Certification of Trustee................................G-1-1
Exhibit G-2: [Reserved]..............................................................G-2-1
Exhibit G-3: Form of Delay Delivery Certification....................................G-3-1
Exhibit G-4: [Reserved]..............................................................G-4-1
Exhibit H-1: Form of Final Certification of Trustee..................................H-1-1
Exhibit H-2: [Reserved]..............................................................H-2-1
Exhibit I: Form of Transfer Affidavit................................................I-1
Exhibit J: Form of Transferor Certificate............................................J-1
Exhibit K: Form of Investment Letter (Non-Rule 144A).................................K-1
Exhibit L: Form of Rule 144A Letter..................................................L-1
Exhibit M: Form of Request for Release (for Trustee).................................M-1
Exhibit N: Request for Release of Documents..........................................N-1
Exhibit O: [Reserved]................................................................O-1
Exhibit P-1: Form of Class A-1 Swap Contract...........................................P-1
Exhibit P-2: Form of Certificate Swap Contract.........................................P-2
Exhibit Q [Reserved]................................................................Q-1
Exhibit R-1 Form of Performance Certification (Trustee)...............................R-1
Exhibit S Form of Servicing Criteria to be Addressed in Assessment
of Compliance Statement...................................................S-2
Exhibit T Form of List of Item 1119 Parties.........................................T-1
Exhibit U Form of Xxxxxxxx-Xxxxx Certification......................................U-1
THIS POOLING AND SERVICING AGREEMENT, dated as of June 1, 2006, among
INDYMAC MBS, INC., a Delaware corporation, as depositor (the "Depositor"),
IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank, as seller (in that
capacity, the "Seller") and as servicer (in that capacity, the "Servicer"),
and Deutsche Bank National Trust Company, a national banking association, as
trustee (the "Trustee"),
W i t n e s s e t h T h a t
In consideration of the mutual agreements set forth in this
Agreement, the parties agree as follows:
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed
to the Trustee in return for the Certificates. As provided in this Agreement,
the Trustee shall elect that the Trust Fund (exclusive of the Swap Trust, the
Swap Contracts, the Carryover Reserve Fund and any amounts in respect of
waived Prepayment Charges paid by the Servicer to the Class P Certificates
pursuant to the second paragraph of Section 3.20) be treated for federal
income tax purposes as comprising four real estate mortgage investment
conduits (each, a "REMIC" or, in the alternative, "REMIC 1" , "REMIC 2" ,
"REMIC 3" and the "Master REMIC"). Each Certificate, other than the Class A-R
Certificate, will represent ownership of one or more regular interests in the
Master REMIC for purposes of the REMIC Provisions. The Class A-R represents
ownership of the sole class of residual interest in each REMIC created under
this Agreement. The Master REMIC will hold as assets the several classes of
uncertificated REMIC 3 Interests (other than the Class R-3 Interest). REMIC 3
will hold as assets the several classes of uncertificated REMIC 2 Interests
(other than the Class R-2 Interest). REMIC 2 will hold as assets the several
classes of uncertificated REMIC 1 Interests (other than the Class R-1
Interest). REMIC 1 will hold as assets all property of the Trust Fund other
than the Swap Trust, the Swap Contracts, the Swap Account, the Certificate
Swap Account and the Carryover Reserve Fund. Each REMIC 3 Interest (other than
the Class R-3 Interest) is hereby designated as a regular interest in REMIC 3.
Each REMIC 2 Interest (other than the Class R-2 Interest) is hereby designated
as a regular interest in REMIC 2. Each REMIC 1 Interest (other than the Class
R-1 Interest) is hereby designated as a regular interest in REMIC 1. The
latest possible maturity date of all REMIC regular interests created in this
Agreement shall be the Latest Possible Maturity Date. All amounts in respect
of waived Prepayment Charges paid by the Servicer to the Class P Certificates
pursuant to the second paragraph of Section 3.20 will be treated as paid
directly by the Servicer to the Class P Certificates and not as paid by or
through any REMIC created hereunder.
REMIC 1
The REMIC 1 Interests will have the Initial Principal Balances and
Pass-Through Rates as set forth in the following table:
REMIC 1 Interests Initial Principal Balance Pass-Through Rate
----------------- ------------------------- -----------------
Class 1-A-1 (1) (2)
Class 1-Support (1) (2)
Class R-1 $100(3) (2)
(1) The Class 1-A-1 Interest shall have an initial principal balance equal to
that of the Class A-1 Certificates and the Class 1-Support shall have an
initial principal balance equal to the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-Off Date less the principal balances
2
of the Class 1-A-1 and Class R-1 Interests. Other than the payment of
principal due the Class A-R Certificates, scheduled principal,
prepayments and Realized Losses will be allocated first, to the Class
1-A-1 Interest in an amount equal to the amount of scheduled principal,
prepayments and Realized Losses allocated to the Class A-1 Certificates
and second to the Class 1-Support Interest until reduced to zero.
(2) The Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans.
(3) The Class R-1 Interest is the sole class of residual interest in REMIC 1.
It shall receive the principal allocable to the Class A-R Certificates.
REMIC 2
The REMIC 2 Interests will have the Initial Principal Balances and
Pass-Through Rates as set forth in the following table:
REMIC 2 Interests Initial Principal Balance(1) Pass-Through Rate
----------------- ------------------------- -----------------
Class 2-1A $ 3,733,388.75 (2)
Class 2-1B $ 3,733,388.75 (3)
Class 2-2A $ 3,623,830.00 (2)
Class 2-2B $ 3,623,830.00 (3)
Class 2-3A $ 3,517,485.00 (2)
Class 2-3B $ 3,517,485.00 (3)
Class 2-4A $ 3,414,257.50 (2)
Class 2-4B $ 3,414,257.50 (3)
Class 2-5A $ 3,314,061.25 (2)
Class 2-5B $ 3,314,061.25 (3)
Class 2-6A $ 3,216,801.25 (2)
Class 2-6B $ 3,216,801.25 (3)
Class 2-7A $ 3,122,396.25 (2)
Class 2-7B $ 3,122,396.25 (3)
Class 2-8A $ 3,030,760.00 (2)
Class 2-8B $ 3,030,760.00 (3)
Class 2-9A $ 2,941,812.50 (2)
Class 2-9B $ 2,941,812.50 (3)
Class 2-10A $ 2,855,472.50 (2)
Class 2-10B $ 2,855,472.50 (3)
Class 2-11A $ 2,771,667.50 (2)
Class 2-11B $ 2,771,667.50 (3)
Class 2-12A $ 2,690,320.00 (2)
Class 2-12B $ 2,690,320.00 (3)
Class 2-13A $ 2,611,358.75 (2)
Class 2-13B $ 2,611,358.75 (3)
Class 2-14A $ 2,534,715.00 (2)
Class 2-14B $ 2,534,715.00 (3)
Class 2-15A $ 2,460,318.75 (2)
Class 2-15B $ 2,460,318.75 (3)
3
REMIC 2 Interests Initial Principal Balance(1) Pass-Through Rate
----------------- ------------------------- -----------------
Class 2-16A $ 2,388,106.25 (2)
Class 2-16B $ 2,388,106.25 (3)
Class 2-17A $ 2,318,011.25 (2)
Class 2-17B $ 2,318,011.25 (3)
Class 2-18A $ 2,249,972.50 (2)
Class 2-18B $ 2,249,972.50 (3)
Class 2-19A $ 2,183,930.00 (2)
Class 2-19B $ 2,183,930.00 (3)
Class 2-20A $ 2,119,826.25 (2)
Class 2-20B $ 2,119,826.25 (3)
Class 2-21A $ 2,057,602.50 (2)
Class 2-21B $ 2,057,602.50 (3)
Class 2-22A $ 1,997,203.75 (2)
Class 2-22B $ 1,997,203.75 (3)
Class 2-23A $ 1,938,578.75 (2)
Class 2-23B $ 1,938,578.75 (3)
Class 2-24A $ 1,881,671.25 (2)
Class 2-24B $ 1,881,671.25 (3)
Class 2-25A $ 1,826,436.25 (2)
Class 2-25B $ 1,826,436.25 (3)
Class 2-26A $ 1,772,820.00 (2)
Class 2-26B $ 1,772,820.00 (3)
Class 2-27A $ 1,720,777.50 (2)
Class 2-27B $ 1,720,777.50 (3)
Class 2-28A $ 1,670,262.50 (2)
Class 2-28B $ 1,670,262.50 (3)
Class 2-29A $ 1,621,228.75 (2)
Class 2-29B $ 1,621,228.75 (3)
Class 2-30A $ 1,573,635.00 (2)
Class 2-30B $ 1,573,635.00 (3)
Class 2-31A $ 1,527,436.25 (2)
Class 2-31B $ 1,527,436.25 (3)
Class 2-32A $ 1,482,593.75 (2)
Class 2-32B $ 1,482,593.75 (3)
Class 2-33A $ 1,439,067.50 (2)
Class 2-33B $ 1,439,067.50 (3)
Class 2-34A $ 3,511,135.00 (2)
Class 2-34B $ 3,511,135.00 (3)
Class 2-35A $ 1,293,711.25 (2)
Class 2-35B $ 1,293,711.25 (3)
Class 2-36A $ 1,255,727.50 (2)
Class 2-36B $ 1,255,727.50 (3)
Class 2-37A $ 1,218,858.75 (2)
Class 2-37B $ 1,218,858.75 (3)
Class 2-38A $ 1,183,072.50 (2)
4
REMIC 2 Interests Initial Principal Balance(1) Pass-Through Rate
----------------- ------------------------- -----------------
Class 2-38B $ 1,183,072.50 (3)
Class 2-39A $ 1,148,335.00 (2)
Class 2-39B $ 1,148,335.00 (3)
Class 2-40A $ 1,114,617.50 (2)
Class 2-40B $ 1,114,617.50 (3)
Class 2-41A $ 1,081,888.75 (2)
Class 2-41B $ 1,081,888.75 (3)
Class 2-42A $ 1,050,122.50 (2)
Class 2-42B $ 1,050,122.50 (3)
Class 2-43A $ 1,019,287.50 (2)
Class 2-43B $ 1,019,287.50 (3)
Class 2-44A $ 989,356.25 (2)
Class 2-44B $ 989,356.25 (3)
Class 2-45A $ 960,305.00 (2)
Class 2-45B $ 960,305.00 (3)
Class 2-46A $ 932,106.25 (2)
Class 2-46B $ 932,106.25 (3)
Class 2-47A $ 904,735.00 (2)
Class 2-47B $ 904,735.00 (3)
Class 2-48A $ 878,165.00 (2)
Class 2-48B $ 878,165.00 (3)
Class 2-49A $ 852,377.50 (2)
Class 2-49B $ 852,377.50 (3)
Class 2-50A $ 827,346.25 (2)
Class 2-50B $ 827,346.25 (3)
Class 2-51A $ 803,048.75 (2)
Class 2-51B $ 803,048.75 (3)
Class 2-52A $ 779,465.00 (2)
Class 2-52B $ 779,465.00 (3)
Class 2-53A $ 756,573.75 (2)
Class 2-53B $ 756,573.75 ((3))
Class 2-54A $ 734,353.75 (2)
Class 2-54B $ 734,353.75 (3)
Class 2-55A $ 712,786.25 (2)
Class 2-55B $ 712,786.25 (3)
Class 2-56A $ 691,852.50 (2)
Class 2-56B $ 691,852.50 (3)
Class 2-57A $ 671,531.25 (2)
Class 2-57B $ 671,531.25 (3)
Class 2-58A $ 22,175,177.50 (2)
Class 2-58B $ 22,175,177.50 (3)
Class 2-59A $ 3,733,388.75 (2)
Class 2-59B $ 3,733,388.75 (3)
Class 2-60A $ 3,623,830.00 (2)
Class 2-60B $ 3,623,830.00 (3)
4
REMIC 2 Interests Initial Principal Balance(1) Pass-Through Rate
----------------- ------------------------- -----------------
Class 2-Support ((4)) ((4))
Class 2-A-1 Swap IO ((5)) ((5))
Class R-2 ((6)) ((6))
-----------------------
(1) Scheduled principal, prepayments and Realized Losses will be allocated
first, to the Class 2-Support Interest and second, among the other
Classes designated "1-", first, sequentially to the Class having the
lowest cardinal number following such designation, in each case until
reduced to zero, and second, among each class having the same cardinal
number pro rata between each such class.
(2) Prior to the Distribution Date in August 2011, a rate equal to twice the
REMIC 2 Cap less 10.704% per annum. The REMIC 2 Cap is the weighted
average of the REMIC 1 regular interests, treating for this purpose the
Class 1-A-1 Certificates as capped at the greater of (i) the Weighted
Average Adjusted Net Mortgage Rate of the Mortgage Loans less 0.06% per
annum (less 0.12% per annum after the first possible Optional
Termination Date) and (ii) LIBOR plus 0.12% per annum (plus 0.24% per
annum after the first possible Optional Termination Date). On and after
the Distribution Date in August 2011 a rate equal to the REMIC 2 Cap.
(3) Prior to the Distribution Date in August 2011, a rate equal to the
lesser of (i) 10.704% per annum and (ii) twice the REMIC 2 Cap. On and
after the Distribution Date in August 2011, a rate equal to the REMIC 2
Cap.
(4) On the Closing Date and on each Distribution Date, following the
allocation of Principal Amounts and Realized Losses, the principal
balance in respect of the Class 2-Support Interest will equal the excess
of the principal balance of the Mortgage Loans (less $100 on the Closing
Date) over the principal balance in respect of the remaining REMIC 2
Interests other than the Class 2-A-1 Swap IO and the Class R-2
Interests.
(5) The Class 2-A-1 Swap IO shall have no principal balance and on each
Distribution Date, on a notional balance equal to the principal balance
of the Class 1-A-1 Interest of REMIC 1 a rate equal to the excess of the
Weighted Average Adjusted Net Mortgage Rate of the Mortgage Loans over a
rate equal to the greater of (i) the Weighted Average Adjusted Net
Mortgage Rate less 0.06% per annum (less 0.12% per annum after the first
possible Optional Termination Date) and (ii) LIBOR plus 0.12% per annum
(plus 0.24% per annum after the first possible Optional Termination
Date).
(6) The Class R-2 Interest is the sole class of residual interest in REMIC
2. It has no principal balance and pays no principal or interest.
5
REMIC 3
The REMIC 3 Interests will have the initial principal balances, Pass-Through
Rates and corresponding Loan Groups as set forth in the following table:
Pass Corresponding
Principal Through Certificates
REMIC 3 Interests Balances Rate Classes
----------------- -------- ---- ---------------
Class 3-A-1 (1) (2) Class A-1
Class 3-A-2 (1) (2) Class A-2
Class 3-M-1 (1) (2) Class M-1
Class 3-M-2 (1) (2) Class M-2
Class 3-M-3 (1) (2) Class M-3
Class 3-M-4 (1) (2) Class M-4
Class 3-M-5 (1) (2) Class M-5
Class 3-M-6 (1) (2) Class M-6
Class 3-M-7 (1) (2) Class M-7
Class 3-M-8 (1) (2) Class M-8
Class 3-M-9 (1) (2) Class M-9
Class 3-M-10 (1) (2) Class M-10
Class 3-M-11 (1) (2) Class M-11
Class 3-Accrual (1) (2) N/A
Class 3-Swap IO (3) (3) N/A
Class 3-A-1 Swap IO (4) (4) N/A
Class R-3 (5) (5) N/A
---------------------------------------
(1) On each Distribution Date, Principal Amounts and Realized Losses will be
allocated to the REMIC 3 Interests in such a manner that, following such
allocations: (i) the principal balances of the REMIC 3 Interests (other
than the Class 3-Accrual, Class 3-Swap IO, Class 3-A-1 Swap IO and Class
R-3 Interests) will equal 50% of the Certificate Balance of their
Corresponding Certificates for such Distribution Date, (ii) the Class
2-Accrual Interest will have a principal balance equal to 50% of the
aggregate principal balance of the Mortgage Loans plus 50% of the
Overcollateralized Amount.
(2) The pass through rate will equal the weighted average of the pass
through rates of the REMIC 2 Interests (other than the Class 2-A-1 Swap
IO and the Class R-2 Interests) treating each "B" interest as capped at
a rate equal to the product of (i) 2 and (ii) LIBOR on each Distribution
Date whose cardinal number preceding such designation (e.g., -0, -0, -0)
is not exceeded by the ordinal number of the Distribution Date following
the Closing Date (e.g., first, second, third) for such Distribution Date
(the "REMIC 3 Cap").
(3) For each Distribution Date, the REMIC 3-Swap IO shall be entitled to
receive from each "B" interest whose cardinal number preceding such
designation (e.g., -0, -0, -0) is not exceeded by the ordinal number of
the Distribution Date following the Closing Date (e.g., first, second,
third) for such Distribution Date the interest accruing on such interest
in excess of an amount of interest accruing on such interest's balance
at a rate equal to the product of (i) 2 and (ii) LIBOR.
(4) 100% of the Amounts due the Class 2-A-1 Swap IO.
6
(5) The Class R-3 Interest is the sole class of residual interest in REMIC
3. It has no principal balance and pays no principal or interest.
The Master REMIC
The following table sets forth the Class Designation, Initial Class
Certificate Balance, Pass-Through Rate, Minimum Denominations and Integral
Multiples in excess thereof in respect of the Certificates, each of which
(other than the Class A-R Certificates) is hereby designated a regular
interest in the Master REMIC, in which such Classes shall be issuable (except
that one Certificate of each Class of Certificates may be issued in a
different amount):
Initial Class
Class Certificate Pass-Through Minimum Integral Multiples in
Designation Balance Rate Denomination Excess of Minimum
----------- ------- ---- ------------ -----------------
Class A-1 $214,509,000 Variable(1) $25,000 $1,000
Class A-2 $23,834,000 Variable(1) $25,000 $1,000
Class A-R $100 Variable(2) $100 N/A
Class M-1 $2,318,000 Variable(1) $25,000 $1,000
Class M-2 $1,288,000 Variable(1) $25,000 $1,000
Class M-3 $3,477,000 Variable(1) $25,000 $1,000
Class M-4 $1,803,000 Variable(1) $25,000 $1,000
Class M-5 $1,674,000 Variable(1) $25,000 $1,000
Class M-6 $1,545,000 Variable(1) $25,000 $1,000
Class M-7 $1,288,000 Variable(1) $25,000 $1,000
Class M-8 $1,030,000 Variable(1) $25,000 $1,000
Class M-9 $901,000 Variable(1) $25,000 $1,000
Class M-10 $1,288,000 Variable(1) $25,000 $1,000
Class M-11 $1,288,000 Variable(1) $25,000 $1,000
Class C (3) (4) N/A N/A
Class P $100.00 (5) N/A N/A
(1) The Pass-Through Rate for this Class of Certificates for any Interest
Accrual Period for any Distribution Date will be a per annum rate equal to the
lesser of (i) LIBOR for that Distribution Date plus the Pass-Through Margin
for that Class and that Interest Accrual Period and (ii) the Net Rate Cap for
that Distribution Date; provided, however, that the Net Rate Cap will not
apply to the Class A-1 Certificates (except for federal income tax purposes)
unless the Class A-1 Swap Contract terminates prior to the Class A-1 Swap
Contract Termination Date. Solely for federal income tax purposes, all monies
received by such Certificates in excess of the REMIC 3 Cap will be treated as
a Class IO Shortfall as provided in Section 8.11.
(2) The Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual Period related to each Distribution Date will be a per annum rate
equal to the Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans. The Pass-Through Rate for the Class A-R Certificates for the Interest
Accrual Period related to the first Distribution Date is 6.7396% per annum.
The Class A-R Certificates will receive interest and principal pursuant to its
ownership of the Class R-1 Interests.
(3) For federal income tax purposes, the Class C Certificates will represent
four classes of regular interests issued by the Master REMIC, (i) a class that
does not accrue interest and has a principal balance equal to the
Overcollateralized Amount as of the Closing Date, (ii) a class that is not
entitled to principal and has a notional balance equal to the sum of the
principal balances of the REMIC 3 Regular Interests
7
(excluding the Class R-3, Class 3-A-1 Swap IO and Class 3-Certificate Swap IO
Interests), (iii) a class representing 100% of the distributions in respect of
the Class 3-Certificate Swap IO Interest, and (iv) a class representing 100%
of the distributions in respect of the Class 3-A-1 Swap IO Interest.
(4) For each Interest Accrual Period the Class C Certificates are entitled to
the "Class C Distributable Amount," which shall consist of (i) a specified
portion of the interest on each of the REMIC 3 Regular Interests (excluding
the Class R-3, Class 3-A-1 Swap IO and Class 3-Certificate Swap IO Interests)
in an amount equal to the excess of: (a) the weighted average pass-through
rate in respect of such REMIC 3 Regular Interests over (b) the product of two
and the weighted average pass-through rate in respect of such REMIC 3 Regular
Interests treating each of the REMIC 3 Accretion Directed Classes as subject
to a cap equal to the pass-through rate in respect of the Corresponding Class
Certificate of each such REMIC 3 Regular Interest and the Class 3-Accrual
Interest as subject to a cap equal to 0.00%, (ii) all accruals of interest in
respect of the Class 3-A-1 Swap IO Interest and the Class 3-Swap IO Interest
and (iii) collections of scheduled principal and principal prepayments
allocated to the class of regular interests referenced in clause (i) of
footnote (3) above.
(5) The Class P Certificates will not be entitled to any interest, but will be
entitled to 100% of any Prepayment Charges collected on the Mortgage Loans.
The foregoing REMIC structure is intended to cause all of the cash
from the Mortgage Loans to flow through to the Master REMIC as cash flow on a
REMIC regular interest, without creating any shortfall--actual or potential
(other than for credit losses) to any REMIC regular interest.
For any purpose for which the Pass-Through Rates (other than in the
Master REMIC) are calculated, the interest rate on the Mortgage Loans shall be
appropriately adjusted to account for the difference between the monthly day
count convention of the Mortgage Loans and the monthly day count convention of
the regular interests issued by each of the REMICs. For purposes of
calculating the Pass-Through Rates for each of the interests issued by each
REMIC (other than the Master REMIC) created hereunder such rates shall be
adjusted to equal a monthly day count convention based on a 30 day month for
each Due Period and a 360-day year so that the Mortgage Loans and all regular
interests will be using the same monthly day count convention.
Set forth below are designations of Classes of Certificates to the categories
used in this Agreement:
Accretion Directed Certificates................ None.
Accrual Certificates........................... None.
Book-Entry Certificates........................ All Classes of Certificates other than the
Physical Certificates.
Class P Certificates........................... Class P Certificates.
COFI Certificates.............................. None.
Components..................................... None.
Component Certificates......................... None.
Delay Certificates............................. Class A-R Certificates.
ERISA-Restricted Certificates.................. The Private Certificates and Residual
Certificates; and
Certificates of any Class
that does not or no longer
has a rating of BBB- or its
equivalent, or better, from
at least one Rating Agency.
LIBOR Certificates............................. The Senior Certificates (other than the
Class X-
0
R Certificates) and Subordinated
Certificates.
Non-Delay Certificates......................... All LIBOR Certificates.
Notional Amount Certificates................... None.
Notional Amount Components..................... None.
Offered Certificates........................... All Classes of Certificates other than the
Private Certificates.
Physical Certificates.......................... Class A-R Certificates and Private
Certificates.
Planned Principal Classes...................... None.
Principal Only Certificates.................... None.
Principal Only Components...................... None.
Private Certificates........................... Class C and Class P Certificates.
Rating Agencies................................ Xxxxx'x and S&P.
Regular Certificates........................... All Classes of Certificates other than the
Class A-R Certificates.
Residual Certificate........................... Class A-R Certificates.
Retained Certificates.......................... None.
Senior Certificates............................ Class A-1, Class A-2 and Class A-R
Certificates.
Super Senior Certificates...................... Class A-1 Certificates.
Support Certificates........................... Class A-2 Certificates
Subordinated Certificates...................... Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class
M-9, Class M-10 and Class
M-11 Certificates.
Targeted Principal Classes..................... None.
Targeted Principal Component................... None.
With respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions in this
Agreement relating solely to such designations shall be of no force or effect,
and any calculations in this Agreement incorporating references to such
designations shall be interpreted without reference to such designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical rating agencies not designated above as Rating Agencies shall be
of no force or effect.
9
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
Unless the context requires a different meaning, capitalized terms are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the Preliminary
Statement.
Accretion Direction Rule: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate of that
Mortgage Loan (as of the Due Date in the month preceding the month in which
such Distribution Date occurs) less the Expense Fee Rate for that Mortgage
Loan.
Adjustment Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related Mortgage Loan is subject to adjustment.
Advance: The payment required to be made by the Servicer with respect to
any Distribution Date pursuant to Section 4.01, the amount of any such payment
being equal to the aggregate of payments of principal and interest (net of the
Servicing Fee) on the Mortgage Loans that were due during the related Due
Period and not received as of the close of business on the related
Determination Date, together with an amount equivalent to interest on each REO
Property, net of any net income from such REO Property, less the aggregate
amount of any such delinquent payments that the Servicer has determined would
constitute a Nonrecoverable Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes of this
definition, "control" means the power to direct the management and policies of
a Person, directly or indirectly, whether through ownership of voting
securities, by contract, or otherwise and "controlling" and "controlled" shall
have meanings correlative to the foregoing. Affiliates also include any
entities consolidated with the requirements of generally accepted accounting
principles.
Agreement: This Pooling and Servicing Agreement and all amendments and
supplements.
10
Amount Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date on account of (i) Principal Prepayments
received after the last day of the related Prepayment Period and Liquidation
Proceeds and Subsequent Recoveries received in the month of such Distribution
Date and (ii) all Scheduled Payments due after the related Due Date.
Applied Realized Loss Amount: For any Distribution Date, the amount by
which the aggregate Class Certificate Balance of all LIBOR Certificates (after
all distributions of principal on such Distribution Date) exceeds the Pool
Principal Balance (after giving effect to Principal Prepayments and
Liquidation Proceeds allocated to principal and Subsequent Recoveries received
in the related Prepayment Period).
Appraised Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be: (i) with respect to a Mortgage
Loan other than a Refinance Loan, the lesser of (a) the value of the Mortgaged
Property based upon the appraisal made at the time of the origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at the time of
the origination of such Mortgage Loan; and (ii) with respect to a Refinance
Loan, the value of the Mortgaged Property based upon the appraisal made at the
time of the origination of such Refinance Loan.
Available Funds: As to any Distribution Date, the sum of (a) the
aggregate amount held in the Certificate Account at the close of business on
the related Determination Date, including any Subsequent Recoveries net of the
Amount Held for Future Distribution, net of Prepayment Charges and net of
amounts permitted to be withdrawn from the Certificate Account pursuant to
clauses (i) - (viii), inclusive, of Section 3.09(a) and amounts permitted to
be withdrawn from the Distribution Account pursuant to clauses (i) - (ii),
inclusive, of Section 3.09(b), (b) the amount of the Advance, (c) in
connection with Defective Mortgage Loans, the aggregate of the Purchase Prices
and Substitution Adjustment Amounts deposited on the related Distribution
Account Deposit Date, and (d) any amount deposited on the related Distribution
Account Deposit Date pursuant to Section 3.10. The Holders of the Class P
Certificates will be entitled to all Prepayment Charges received on the
Mortgage Loans and such amounts will not be available for distribution to the
Holders of any other Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: Not applicable.
Bankruptcy Loss: Not applicable.
Bankruptcy Loss Coverage Amount: Not applicable.
Blanket Mortgage: The mortgage or mortgages encumbering a Cooperative
Property.
Book-Entry Certificates: As specified in the Preliminary Statement.
Business Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day on which the banking institutions in the City of New York, New York, the
State of California or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law or executive order to be
closed.
Carryover Reserve Fund: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 with a depository
institution in the name of the Trustee for the benefit of the
Certificateholders and designated "Deutsche Bank National Trust Company, in
trust for the registered
11
holders of IndyMac INDX Mortgage Loan Trust 2006-AR21, Mortgage Pass-Through
Certificates, Series 2006-AR21."
Certificate: Any one of the certificates issued by the Trust Fund and
executed by the Trustee in substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts created and
maintained by the Servicer pursuant to Section 3.06(d) with a depository
institution in the name of the Servicer for the benefit of the Trustee on behalf
of Certificateholders and designated "IndyMac Bank, F.S.B., in trust for the
registered holders of IndyMac INDX Mortgage Loan Trust 2006-AR21, Mortgage
Pass-Through Certificates, Series 2006-AR21."
Certificate Balance: With respect to any Certificate (other than the Class
C Certificates) at any date, the maximum dollar amount of principal to which the
Holder thereof is then entitled under this Agreement, such amount being equal to
the Denomination thereof (A) plus, with respect to the LIBOR Certificates, any
increase to the Certificate Balance of such Certificate pursuant to Section 4.02
due to the receipt of Subsequent Recoveries and (B) minus the sum of (i) all
distributions of principal previously made with respect to that Certificate and
(ii) with respect to the LIBOR Certificates, any Applied Realized Loss Amounts
allocated to such Certificate on previous Distribution Dates pursuant to Section
4.02 without duplication.
Certificate Group: Not applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of the Book-Entry Certificate. For the purposes of
this Agreement, in order for a Certificate Owner to enforce any of its rights
under this Agreement, it shall first have to provide evidence of its beneficial
ownership interest in a Certificate that is reasonably satisfactory to the
Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register: The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate is
registered in the Certificate Register, except that, solely for the purpose of
giving any consent pursuant to this Agreement, any Certificate registered in the
name of the Depositor or any affiliate of the Depositor is not Outstanding and
the Percentage Interest evidenced thereby shall not be taken into account in
determining whether the requisite amount of Percentage Interests necessary to
effect a consent has been obtained, except that if the Depositor or its
affiliates own 100% of the Percentage Interests evidenced by a Class of
Certificates, the Certificates shall be Outstanding for purposes of any
provision of this Agreement requiring the consent of the Holders of Certificates
of a particular Class as a condition to the taking of any action. The Trustee is
entitled to rely conclusively on a certification of the Depositor or any
affiliate of the Depositor in determining which Certificates are registered in
the name of an affiliate of the Depositor.
Certificate Swap Account: The separate Eligible Account created and
initially maintained by the Swap Trustee pursuant to Section 4.08.
Certificate Swap Contract: With respect to the LIBOR Certificates, the
transaction evidenced by the related Confirmation, a form of which is attached
hereto as Exhibit P-2.
Certificate Swap Contract Termination Date: The Distribution Date in May
2011.
12
Certificate Swap Report: The report to be delivered at least four business
days prior to each Distribution Date by the Swap Counterparty to the Swap
Trustee containing the amount of any Net Swap Payment payable by the Swap Trust
or the Swap Counterparty to the other party, as the case may be, with respect to
the Certificate Swap Contract for that Distribution Date.
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as set forth in
the Preliminary Statement.
Class A-1 Amount: For any Distribution Date, the amount, if any,
distributed to the Class A-1 Certificates in accordance with Section
4.02(d)(i)(A).
Class A-1 Swap Account: The separate Eligible Account created and
initially maintained by the Supplemental Interest Trustee pursuant to Section
4.08.
Class A-1 Swap Contract: With respect to the Class A-1 Certificates, the
transaction evidenced by the related Confirmation, a form of which is attached
hereto as Exhibit P-1.
Class A-1 Swap Contract Termination Date: The earlier of (i) the
Distribution Date in August 2036 and (ii) the Distribution Date upon which the
Class Certificate Balance of the Class A-1 Certificates has been reduced to
zero.
Class Certificate Balance: For any Class (other than the Notional Amount
Certificates) as of any date of determination, the aggregate of the Certificate
Balances of all Certificates of the Class as of that date.
Class C Distributable Amount: As defined in the Preliminary Statement.
Class M-1 Principal Distribution Amount: For any Distribution Date, the
amount, if any, by which (x) the sum of (i) the aggregate Class Certificate
Balance of the Senior Certificates, after giving effect to distributions of the
Senior Principal Distribution Amount on that Distribution Date, and (ii) the
Class Certificate Balance of the Class M-1 Certificates immediately prior to
that Distribution Date exceeds (y) the Class M-1 Target Amount for that
Distribution Date.
Class M-1 Target Amount: For any Distribution Date (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 86.90% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-1 Target Amount for the immediately
preceding Distribution Date.
Class M-2 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1 Certificates, in each case after giving effect to
distributions of the related Class Principal Distributions Amounts, on that
Distribution Date, and (ii) the Class Certificate
13
Balance of the Class M-2 Certificates immediately prior to that Distribution
Date exceeds (y) the Class M-2 Target Amount for that Distribution Date.
Class M-2 Target Amount: For any Distribution Date (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 87.90% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-2 Target Amount for the immediately
preceding Distribution Date.
Class M-3 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1 and Class M-2 Certificates, in each case after
giving effect to distributions of the related Class Principal Distributions
Amounts, on that Distribution Date, and (ii) the Class Certificate Balance of
the Class M-3 Certificates immediately prior to that Distribution Date exceeds
(y) the Class M-3 Target Amount for that Distribution Date.
Class M-3 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 90.60% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-3 Target Amount for the immediately
preceding Distribution Date..
Class M-4 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2 and Class M-3 Certificates, in each
case after giving effect to distributions of the related Class Principal
Distributions Amounts, on that Distribution Date, and (ii) the Class Certificate
Balance of the Class M-4 Certificates immediately prior to that Distribution
Date exceeds (y) the Class M-4 Target Amount for that Distribution Date.
Class M-4 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 92.00% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-4 Target Amount for the immediately
preceding Distribution Date.
Class M-5 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3 and Class M-4 Certificates,
in each case after giving effect to distributions of the related Class Principal
Distributions Amounts, on that
14
Distribution Date, and (ii) the Class Certificate Balance of the Class M-5
Certificates immediately prior to that Distribution Date exceeds (y) the Class
M-5 Target Amount for that Distribution Datee.
Class M-5 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 93.30% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-5 Target Amount for the immediately
preceding Distribution Date.
Class M-6 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4 and Class M-5
Certificates, in each case after giving effect to distributions of the related
Class Principal Distributions Amounts, on that Distribution Date, and (ii) the
Class Certificate Balance of the Class M-6 Certificates immediately prior to
that Distribution Date exceeds (y) the Class M-6 Target Amount for that
Distribution Date.
Class M-6 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 94.50% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-6 Target Amount for the immediately
preceding Distribution Date.
Class M-7 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5 and
Class M-6 Certificates, in each case after giving effect to distributions of the
related Class Principal Distributions Amounts, on that Distribution Date, and
(ii) the Class Certificate Balance of the Class M-7 Certificates immediately
prior to that Distribution Date exceeds (y) the Class M-7 Target Amount for that
Distribution Date.
Class M-7 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 95.50% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-7 Target Amount for the immediately
preceding Distribution Date.
Class M-8 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6 and Class
15
M-7 Certificates, in each case after giving effect to distributions of the
related Class Principal Distributions Amounts, on that Distribution Date, and
(ii) the Class Certificate Balance of the Class M-8 Certificates immediately
prior to that Distribution Date exceeds (y) the Class M-8 Target Amount for that
Distribution Date.
Class M-8 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 96.30% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-8 Target Amount for the immediately
preceding Distribution Date.
Class M-9 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7 and Class M-8 Certificates, in each case after giving
effect to distributions of the related Class Principal Distributions Amounts, on
that Distribution Date, and (ii) the Class Certificate Balance of the Class M-9
Certificates immediately prior to that Distribution Date exceeds (y) the Class
M-9 Target Amount for that Distribution Date.
Class M-9 Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 97.00% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-9 Target Amount for the immediately
preceding Distribution Date.
Class M-10 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8 and Class M-9 Certificates, in each case after
giving effect to distributions of the related Class Principal Distributions
Amounts, on that Distribution Date, and (ii) the Class Certificate Balance of
the Class M-10 Certificates immediately prior to that Distribution Date exceeds
(y) the Class M-10 Target Amount for that Distribution Date.
Class M-10 Target Amount: For any Distribution Date, (x) after the
Stepdown Date and when a Trigger Event is not in effect, an amount equal to the
lesser of (a) the product of (1) approximately 98.00% and (2) the Pool Principal
Balance as of the Due Date in the month of that Distribution Date (after giving
effect to Principal Prepayments received in the related Prepayment Period) and
(b) the amount, if any, by which (1) the Pool Principal Balance as of the Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-10 Target Amount for the immediately
preceding Distribution Date.
16
Class M-11 Principal Distribution Amount: For any Distribution Date, an
amount equal, on or after the Stepdown Date and as long as a Trigger Event is
not in effect with respect to that Distribution Date, to the amount, if any, by
which (x) the sum of (i) the aggregate Class Certificate Balance of the Senior
Certificates and the Class M-1, Class M-2, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates, in each
case after giving effect to distributions of the related Class Principal
Distributions Amounts, on that Distribution Date, and (ii) the Class Certificate
Balance of the Class M-11 Certificates immediately prior to that Distribution
Date exceeds (y) the Class M-11 Target Amount for that Distribution Date.
Class M-11 Target Amount: For any Distribution Date, (x) after the
Stepdown Date and when a Trigger Event is not in effect, an amount equal to the
lesser of (a) the product of (1) approximately 99.00% and (2) the Pool Principal
Balance as of the Due Date in the month of that Distribution Date (after giving
effect to Principal Prepayments received in the related Prepayment Period) and
(b) the amount, if any, by which (1) the Pool Principal Balance as of the Due
Date in the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Class M-11 Target Amount for the immediately
preceding Distribution Date.
Class Principal Distribution Amount: For any Distribution Date, an amount
equal to any of the Senior Principal Distribution Amount, the Class M-1
Principal Distribution Amount, the Class M-2 Principal Distribution Amount, the
Class M-3 Principal Distribution Amount, the Class M-4 Principal Distribution
Amount, the Class M-5 Principal Distribution Amount, the Class M-6 Principal
Distribution Amount, the Class M-7 Principal Distribution Amount, the Class M-8
Principal Distribution Amount, the Class M-9 Principal Distribution Amount, the
Class M-10 Principal Distribution Amount and the Class M-11 Principal
Distribution Amount.
Closing Date: June 28, 2006.
CMT Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI: Not applicable.
COFI Certificates: Not applicable.
Collection Account: As defined in Section 3.06(c).
Commission: The United States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied by
one-twelfth multiplied by the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the prior month.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements constituting the
Cooperative Property and that governs the Cooperative Property, which
Cooperative Corporation must qualify as a Cooperative Housing Corporation under
section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and a
Proprietary Lease.
17
Cooperative Property: The real property and improvements owned by the
Cooperative Corporation, including the allocation of individual dwelling units
to the holders of the Co-op Shares of the Cooperative Corporation.
Cooperative Unit: A single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in the State
of California at which at any particular time its corporate trust business with
respect to this Agreement is administered, which office at the date of the
execution of this Agreement is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attn: Mortgage Administration-IN06AL (IndyMac MBS, Inc.,
IndyMac INDX Mortgage Loan Trust 2006-AR21, Mortgage Pass-Through Certificates,
Series 2006-AR21), and which is the address to which notices to and
correspondence with the Trustee should be directed.
Covered Certificates: LIBOR Certificates.
Cross-over Situation: Not applicable.
Cumulative Loss Trigger Event: With respect to a Distribution Date on or
after the Stepdown Date occurs if the aggregate amount of Realized Losses on the
Mortgage Loans from (and including) the Cut-off Date to (and including) the
related Due Date (reduced by the aggregate amount of Subsequent Recoveries
received from the Cut-off Date through the Prepayment Period related to that Due
Date) exceeds the applicable percentage, for such Distribution Date, of the
Cut-off Date Pool Principal Balance, as set forth below:
Distribution Date Percentage
----------------- ----------
July 2008 - June 2009........ 0.25% with respect to July 2008, plus an
additional 1/12th of 0.40% for each month
thereafter through June 2009
July 2009 - June 2010........ 0.65% with respect to July 2009, plus an
additional 1/12th of 0.45% for each month
thereafter through June 2010
July 2010 - June 2011........ 1.10% with respect to July 2010, plus an
additional 1/12th of 0.45% for each month
thereafter through June 2011
July 2011 - June 2012........ 1.55% with respect to July 2011, plus an
additional 1/12th of 0.30% for each month
thereafter through June 2012
July 2012 and thereafter..... 1.85%
Current Interest: With respect to each Class of LIBOR Certificates and
each Distribution Date, interest accrued at the applicable Pass-Through Rate for
the applicable Interest Accrual Period on the Class Certificate Balance of that
Class, immediately prior to that Distribution Date.
Cut-off Date: June 1, 2006.
Cut-off Date Pool Principal Balance: $257,528,874.15.
Cut-off Date Principal Balance: As to any Mortgage Loan, its Stated
Principal Balance as of the close of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code in the
Scheduled Payment for the Mortgage Loan that became final and non-appealable,
except a reduction resulting from a Deficient Valuation or a reduction that
results in a permanent forgiveness of principal.
18
Defective Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less than the then
outstanding indebtedness under the Mortgage Loan, or any reduction in the amount
of principal to be paid in connection with any Scheduled Payment that results in
a permanent forgiveness of principal, which valuation or reduction results from
an order of the court that is final and non-appealable in a proceeding under the
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a Physical
Certificate and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 5.02(e).
Delay Certificates: As specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in the form of
Exhibit G-3.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on the
Mortgage Loan Schedule for which all or a portion of a related Mortgage File is
not delivered to the Trustee by the Closing Date. The Depositor shall deliver
the Mortgage Files to the Trustee:
(A) for at least 70% of the Mortgage Loans, not later than the Closing
Date and
(B) for the remaining 30% of the Mortgage Loans, not later than five
Business Days following the Closing Date.
To the extent that the Seller is in possession of any Mortgage File for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage File to the
Trustee as provided in Section 2.01, the Seller shall hold the files as
Servicer, as agent and in trust for the Trustee.
Deleted Mortgage Loan: As defined in Section 2.03(c).
Delinquency Trigger Event: With respect to any Distribution Date on or
after the Stepdown Date, if the Rolling Sixty Day Delinquency Rate as of the
last day of the immediately preceding month equals or exceeds 40% of the Senior
Enhancement Percentage for that Distribution Date.
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment due on
a Due Date is not made by the close of business on the next scheduled Due Date
for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if such monthly
payment has not been received by the close of business on the corresponding day
of the month immediately succeeding the month in which such monthly payment was
due. The determination of whether a Mortgage Loan is "60 days Delinquent", "90
days Delinquent", etc. shall be made in a like manner.
Denomination: For each Certificate, the amount on the face of the
Certificate as the "Initial Certificate Balance of this Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the foregoing,
the Percentage Interest appearing on the face of the Certificate.
Depositor: IndyMac MBS, Inc., a Delaware corporation, or its successor in
interest.
Depository: The initial Depository shall be The Depository Trust Company,
the nominee of which is CEDE & Co., as the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(a)(5) of the UCC.
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Depository Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: As to any Distribution Date, the 18th day of each
month or if that day is not a Business Day the next Business Day, except that if
the next Business Day is less than two Business Days before the related
Distribution Date, then the Determination Date shall be the Business Day
preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and maintained
by the Trustee pursuant to Section 3.06(e) in the name of the Trustee for the
benefit of the Certificateholders and designated "Deutsche Bank National Trust
Company in trust for registered holders of IndyMac INDX Mortgage Loan Trust
2006-AR21, Mortgage Pass-Through Certificates, Series 2006-AR21." Funds in the
Distribution Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the initial
issuance of the Certificates, or if that day is not a Business Day, the next
Business Day, commencing in July 2006.
Due Date: For any Mortgage Loan and Distribution Date, the first day of
the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on the second
day of the month preceding the month in which the Distribution Date occurs and
ending on the first day of the month in which the Distribution Date occurs.
XXXXX: The Commission's Electronic Data Gathering, Analysis and Retrieval
system.
Eligible Account: Any of (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the debt obligations of such holding company) have the highest
short-term ratings of Xxxxx'x or Fitch and one of the two highest short-term
ratings of S&P, if S&P is a Rating Agency at the time any amounts are held on
deposit therein, or (ii) an account or accounts in a depository institution or
trust company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered to
the Trustee and to each Rating Agency, the Certificateholders have a claim with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a trust account or accounts maintained with
(a) the trust department of a federal or state chartered depository institution
or (b) a trust company, acting in its fiduciary capacity or (iv) any other
account acceptable to each Rating Agency. Eligible Accounts may bear interest,
and may include, if otherwise qualified under this definition, accounts
maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
20
ERISA-Qualifying Underwriting: A best efforts or firm commitment
underwriting or private placement that meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary Statement.
Escrow Account: The Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess Cashflow: With respect to any Distribution Date (i) the Interest
Remittance Amount remaining after the distribution of interest to the Holders of
the Certificates for that Distribution Date, (ii) the Overcollateralization
Release Amount and (iii) any Principal Distribution Amount for that Distribution
Date remaining after distributions of the principal to the Offered Certificates.
Excess Loss: Not applicable.
Excess Proceeds: For any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in the
calendar month in which the Mortgage Loan became a Liquidated Mortgage Loan, net
of any amounts previously reimbursed to the Servicer as Nonrecoverable Advances
with respect to the Mortgage Loan pursuant to Section 3.09(a)(iii), over
(b) the sum of (i) the unpaid principal balance of the Liquidated Mortgage
Loan as of the Due Date in the month in which the Mortgage Loan became a
Liquidated Mortgage Loan plus (ii) accrued interest at the Mortgage Rate from
the Due Date for which interest was last paid or advanced (and not reimbursed)
to Certificateholders up to the Due Date applicable to the Distribution Date
following the calendar month during which the liquidation occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form 10-K
required to be filed by the Depositor with respect to the Trust Fund under the
Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, the sum of (a) the related
Servicing Fee Rate and (b) the Trustee Fee Rate.
Extra Principal Distribution Amount: For any Distribution Date, the lesser
of (x) the Overcollateralization Deficiency Amount for that Distribution Date
and (y) the Excess Cashflow for that Distribution Date.
FDIC: The Federal Deposit Insurance Corporation, or any successor thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
Final Scheduled Distribution Date: The Distribution Date in the month
immediately following the month of the latest scheduled maturity date for any of
the Mortgage Loans.
21
Fitch: Fitch, Inc., or any successor thereto. If Fitch is designated as a
Rating Agency in the Preliminary Statement, for purposes of Section 10.05(b) the
address for notices to Fitch shall be Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, XX 00000, Attention: MBS Monitoring - IndyMac 2006-AR21, or any other
address Fitch furnishes to the Depositor and the Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered and
privately owned corporation organized and existing under the Federal National
Mortgage Association Charter Act, or any successor thereto.
Form 10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person, or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer, if such
Person has actual knowledge thereof.
Form 10-K Disclosure Item: With respect to any Person, (a) Form 10-D
Disclosure Item, and (b) any affiliations or relationships between such Person
and any Item 1119 Party.
Fraud Loan: Not applicable.
Fraud Losses: Not applicable.
Fraud Loss Coverage Amount: Not applicable.
Fraud Loss Coverage Termination Date: Not applicable.
Gross Margin: With respect to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note that is added to the Mortgage Index on each
Adjustment Date in accordance with the terms of the related Mortgage Note used
to determine the Mortgage Rate for such Mortgage Loan.
Hard Prepayment Charges: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments in
full made within the related Prepayment Charge Period, the Hard Prepayment
Charges with respect to each applicable Mortgage Loan so held by the Trust Fund
being identified in the Mortgage Loan Schedule.
Indirect Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: Not applicable.
Initial LIBOR Rate: 5.341% per annum.
Insurance Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay Certificates
and any Distribution Date, the calendar month prior to the month of such
Distribution Date. The Delay Certificates will accrue
22
interest on the basis of a 360-day year consisting of twelve 30-day months. With
respect to each Class of Non-Delay Certificates and any Distribution Date, the
period commencing on the immediately preceding Distribution Date (or, in the
case of the first Distribution Date, the Closing Date) and ending on the day
immediately preceding that Distribution Date. Each Class of Non-Delay
Certificates will accrue interest on the basis of a 360-day year and the actual
number of days elapsed during the related Interest Accrual Period.
Interest Carry Forward Amount: With respect to each Class of LIBOR
Certificates and each Distribution Date, is the excess of (a) Current Interest
for that Class with respect to prior Distribution Dates, over (b) the amount
actually distributed to that Class with respect to interest on prior
Distribution Dates.
Interest Determination Date: With respect to (a) any Interest Accrual
Period for a Class of LIBOR Certificates and (b) any Interest Accrual Period for
the COFI Certificates for which the applicable Index is LIBOR, the second
Business Day prior to the first day of such Interest Accrual Period.
Interest Funds: For any Distribution Date, the Interest Remittance Amount
minus the Trustee Fee for that Distribution Date.
Interest Rate: With respect to each REMIC 1 Interest, REMIC 2 Interest or
Master REMIC Interest, the applicable rate set forth or calculated in the manner
described in the Preliminary Statement.
Interest Remittance Amount: For any Distribution Date is :
(a) the sum, without duplication, of:
(1) all interest on the Mortgage Loans due on the related Due
Date and received on or prior to the related Determination Date,
less the Servicing Fees,
(2) all interest on Principal Prepayments on the Mortgage
Loans, other than Prepayment Interest Excess,
(3) all Advances relating to interest,
(4) amounts paid by the Servicer in respect of Compensating
Interest,
(5) Liquidation Proceeds on the Mortgage Loans received during
the related Prepayment Period (to the extent such Liquidation
Proceeds relate to interest), and
(6) the lesser of the aggregate amount of Principal
Prepayments and Deferred Interest,
minus
(b) all Advances relating to interest and certain expenses
reimbursed since the prior Due Date,
plus
(c) the lesser of (i) the Principal Prepayment Amount and
Distribution Date and (ii) the Deferred Interest for that Distribution
Date.
23
Interest Settlement Rate: As defined in Section 4.08.
Item 1119 Party: The Depositor, the Seller, the Servicer, the Trustee, the
Swap Counterparty, the Swap Trustee and any other material transaction party, as
identified in Exhibit T, as updated pursuant to Section 11.04.
Latest Possible Maturity Date: The Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance and charged
the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section 4.08.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest Accrual Period.
Limited Exchange Act Reporting Obligations: The obligations of the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with respect to
notice and information to be provided to the Depositor and Article 11 (except
Section 11.07(a)(i) and (ii)).
Liquidated Mortgage Loan: For any Distribution Date, a defaulted Mortgage
Loan (including any REO Property) that was liquidated in the calendar month
preceding the month of the Distribution Date and as to which the Servicer has
certified (in accordance with this Agreement) that it has received all amounts
it expects to receive in connection with the liquidation of the Mortgage Loan,
including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds regardless of
when received, received in connection with the partial or complete liquidation
of defaulted Mortgage Loans, whether through trustee's sale, foreclosure sale,
or otherwise or amounts received in connection with any condemnation or partial
release of a Mortgaged Property, and any other proceeds received in connection
with an REO Property, less the sum of related unreimbursed Servicing Fees,
Servicing Advances, and Advances.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date of
determination, is the fraction whose numerator is the original principal balance
of the related Mortgage Loan at that date of determination and whose denominator
is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
24
Maximum Mortgage Rate: For each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the lifetime maximum Mortgage Rate to which such
Mortgage Rate may be adjusted.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Mortgage Loan: Any Mortgage Loan registered with MERS on the MERS(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: For each Mortgage Loan, the percentage set forth in
the related Mortgage Note as the lifetime minimum Mortgage Rate to which such
Mortgage Rate may be adjusted.
MOM Loan: Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns.
Moneyline Telerate Page 3750: The display page currently so designated on
the Moneyline Telerate Information Services, Inc. (or any page replacing that
page on that service for the purpose of displaying London inter-bank offered
rates of major banks).
Monthly Statement: The statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto. If
Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 10.05(b) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Residential Loan Monitoring Group, or any other address that Moody's furnishes
to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01 pertaining to
a particular Mortgage Loan and any additional documents delivered to the Trustee
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Index: One-Year CMT Index, Six-Month LIBOR Index or One-Year
LIBOR Index.
Mortgage Loans: Such of the mortgage loans transferred and assigned to the
Trustee pursuant to this Agreement, as from time to time are held as a part of
the Trust Fund (including any REO Property), the Mortgage Loans so held being
identified on the Mortgage Loan Schedule, notwithstanding foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in Schedule I
of Mortgage Loans included in the Trust Fund on that date. The Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the following
information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address of the Mortgaged Property, including the
zip code;
25
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Gross Margin in effect as of the Cut-off Date;
(ix) the Maximum Mortgage Rate in effect as of the Cut-off Date;
(x) the Adjustment Date in effect as of the Cut-off Date;
(xi) a code indicating the Mortgage Index and when it is
determined;
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is either
(a) a detached single family dwelling, (b) a dwelling in a
PUD, (c) a condominium unit, (d) a two- to four-unit
residential property, or (e) a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender PMI
Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest premium
charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan;
(xxiv) the Minimum Mortgage Rate in effect as of the Cut-off Date;
(xxv) a code indicating whether the Mortgage Loan is a MERS Mortgage
Loan; and
26
(xxvi) the type of Prepayment Charges and the length of time during
which Prepayment Charges will be imposed on a Mortgage Loan.
The schedule shall also set forth the total of the amounts described under
(v) above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage Note from
time to time (net of the interest premium for any Lender PMI Loan).
Mortgaged Property: The underlying property securing a Mortgage Loan,
which, with respect to a Cooperative Loan, is the related Co-op Shares and
Proprietary Lease.
Mortgagor: The obligors on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of Funds
Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of Prepayment Interest Shortfalls exceeds
the Compensating Interest for such Distribution Date.
Net Rate Cap: For each Distribution Date and the Offered Certificates
(other than the Class A-R Certificates), the Weighted Average Adjusted Net
Mortgage Rate minus the Swap Adjustment Rate for such Distribution Date.
Net Rate Carryover: For a Class of LIBOR Certificates on any Distribution
Date, the excess of:
(1) the amount of interest that Class would have accrued for that
Distribution Date had the Pass-Through Rate for that Class and the related
Interest Accrual Period not been calculated based on the Net Rate Cap,
over
(2) the amount of interest that Class accrued on that Distribution
Date based on the Net Rate Cap,
plus the unpaid portion of any excess from prior Distribution Dates (and
interest accrued thereon at the then applicable Pass-Through Rate, without
giving effect to the Net Rate Cap).
Net Swap Payment: With respect to the Certificate Swap Contract, any
Distribution Date and payment from the Swap Trust to the Swap Counterparty, the
excess, if any, of the "Fixed Amounts" (as defined in the Certificate Swap
Contract) with respect to such Distribution Date over the "Floating Amounts" (as
defined in the Certificate Swap Contract) with respect to such Distribution
Date. With respect to the Certificate Swap Contract, any Distribution Date and
payment by the Swap Counterparty to the Swap Trust, the excess, if any, of the
"Floating Amounts" with respect to such Distribution Date over the "Fixed
Amounts" with respect to such Distribution Date.
With respect to the Class A-1 Swap Contract, any Distribution Date and
payment from the Swap Trust to the Swap Counterparty, the excess, if any, of the
"Floating Amount II" (as defined in the Class A-1 Swap Contract) with respect to
such Distribution Date over the "Floating Amount I" (as defined in the Class A-1
Swap Contract) with respect to such Distribution Date. With respect to the Class
A-1 Swap
27
Contract, any Distribution Date and payment by the Swap Counterparty to the Swap
Trust, the excess of (i) the excess, if any, of (a) the "Floating Amount I" with
respect to such Distribution Date over (b) the "Floating Amount II" with respect
to such Distribution Date; over (ii) the Class A-1 Amount for such Distribution
Date.
Non-Delay Certificates: As specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made or
proposed to be made by the Servicer, that, in the good faith judgment of the
Servicer, will not be ultimately recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final distribution on any of the Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: Not applicable.
Notional Amount Certificates: As specified in the Preliminary Statement.
Notional Amount Components: As specified in the Preliminary Statement.
OC Floor: An amount equal to 0.50% of the Cut-off Date Pool Principal
Balance of the Mortgage Loans.
Offered Certificates: As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided for in this
Agreement, signed by a Servicing Officer, as the case may be, and delivered to
the Depositor and the Trustee as required by this Agreement or (iii) in the case
of any other Person, signed by an authorized officer of such Person.
One-Year CMT Index: The weekly average yield on United States Treasury
securities adjusted to a constant maturity of one year as published by the
Federal Reserve Board in Statistical Release H.15(519) and most recently
available as of a day specified in the related Mortgage Note.
One-Year LIBOR Index: The average of the London interbank offered rates
for one-year U.S. dollar deposits in the London market, generally as set forth
in either The Wall Street Journal or some other source generally accepted in the
residential mortgage loan origination business and specified in the related
Mortgage Note, or, if such rate ceases to be published in The Wall Street
Journal or becomes unavailable for any reason, then based upon a new index
selected by the servicer, based on comparable information, in each case, as most
recently announced as of either 45 days prior to, or the first Business Day of
the month immediately preceding the month of, such Adjustment Date.
Opinion of Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact independent of the
Depositor and the Servicer, (ii) does not have any direct financial interest in
the Depositor or the Servicer or in any affiliate of either, and (iii) is not
connected with the Depositor or the Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director, or person performing similar functions.
Otherwise, a written opinion of counsel who
28
may be counsel for the Depositor or the Servicer, including in-house counsel,
reasonably acceptable to the Trustee.
Optional Termination Date: As defined in Section 9.01.
Original Mortgage Loan: The Mortgage Loan refinanced in connection with
the origination of a Refinance Loan.
OTS: The Office of Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination, all
Certificates theretofore executed and authenticated under this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with a
Stated Principal Balance greater than zero that was not the subject of a
Principal Prepayment in Full before the Due Date or during the related
Prepayment Period and that did not become a Liquidated Mortgage Loan before the
Due Date.
Overcollateralization Deficiency Amount: For any Distribution Date equals
the amount, if any, by which the Overcollateralization Target Amount exceeds the
Overcollateralized Amount on that Distribution Date (after giving effect to
distributions of the Principal Remittance Amount on that Distribution Date).
Overcollateralization Release Amount: With respect to any Distribution
Date, an amount equal to the lesser of (x) the Principal Remittance Amount for
that Distribution Date and (y) the amount, if any, by which the
Overcollateralized Amount for that date exceeds the Overcollateralization Target
Amount for that date.
Overcollateralization Target Amount: With respect to any Distribution
Date, the OC Floor.
Overcollateralized Amount: For any Distribution Date is the amount, if
any, by which (x) the Pool Principal Balance as of the Due Date in the month of
that Distribution Date (after giving effect to Principal Prepayments, the
principal portion of any Liquidation Proceeds and any Subsequent Recoveries
received in the related Prepayment Period) exceeds (y) the aggregate Class
Certificate Balance of the Offered Certificates (after giving effect to
distributions of the Principal Distribution Amount (excluding the Extra
Principal Distribution Amount) on that Distribution Date).
Ownership Interest: As to any Residual Certificate, any ownership interest
in the Certificate including any interest in the Certificate as its Holder and
any other interest therein, whether direct or indirect, legal or beneficial.
29
Pass-Through Margin: With respect to the Interest Accrual Period for any
Distribution Date and Class of LIBOR Certificates, the per annum rate indicated
in the following table:
Class of LIBOR Certificates Pass-Through Margin
--------------------------- -------------------
(1) (2)
--------- ----------
Class A-1 0.120%(3) 0.240% (3)
Class A-2 0.240% 0.480%
Class M-1 0.300% 0.450%
Class M-2 0.320% 0.480%
Class M-3 0.340% 0.510%
Class M-4 0.370% 0.555%
Class M-5 0.420% 0.630%
Class M-6 0.440% 0.660%
Class M-7 0.500% 0.750%
Class M-8 1.100% 1.650%
Class M-9 1.300% 1.950%
Class M-10 2.400% 3.600%
Class M-11 2.250% 3.375%
--------------------------------
(1) For the Interest Accrual Period related to any Distribution Date occurring
on or prior to the first possible Optional Termination Date.
(2) For the Interest Accrual Period related to any Distribution Date occurring
after the first possible Optional Termination Date.
(3) In the event that the Class A-1 Swap Contract terminates before the
scheduled Class A-1 Swap Contract Termination Date, the Pass-Through Margin
for the Class A-1 Certificates will increase by 0.06% on or prior to the
first possible Optional Termination Date and will increase by 0.12% after
the first possible Optional Termination Date.
Pass-Through Rate: For each Class of Certificates, the per annum rate set
forth or calculated in the manner described in the Preliminary Statement.
Percentage Interest: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made on the related Class, the
percentage interest being set forth on its face or equal to the percentage
obtained by dividing the Denomination of the Certificate by the aggregate of the
Denominations of all Certificates of the same Class. With respect to the Class
C, Class P and Class A-R Certificates, the portion of the Class evidenced
thereby, expressed as a percentage, as stated on the face of such Certificate.
Performance Certification: As defined in Section 11.05.
Permitted Investments: At any time, any of the following:
(i) obligations of the United States or any agency thereof backed by the
full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state of the
United States or the District of Columbia receiving the highest long-term debt
rating of each Rating Agency, or any lower rating that will not result in the
downgrading, qualification or withdrawal of the ratings then assigned to
30
the Certificates by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
(iii) commercial or finance company paper that is then receiving the
highest commercial or finance company paper rating of each Rating Agency, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies , as evidenced by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and subject to
supervision and examination by federal or state banking authorities, provided
that the commercial paper or long-term unsecured debt obligations of the
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of the holding company, but only if Xxxxx'x
is not a Rating Agency) are then rated one of the two highest long-term and the
highest short-term ratings of each Rating Agency for the securities, or any
lower rating that will not result in the downgrading, qualification or
withdrawal of the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each Rating Agency;
(v) demand or time deposits or certificates of deposit issued by any bank
or trust company or savings institution to the extent that the deposits are
fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank, insurance
company, or other corporation acceptable to the Rating Agencies at the time of
the issuance of the agreements, as evidenced by a signed writing delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described in
clauses (i) and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (iv)
above; provided that such repurchase obligation would be accounted for as a
financing arrangement under generally accepted accounting principles;
(viii) securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their face amount)
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States or any state thereof that, at the time of
the investment, have one of the two highest ratings of each Rating Agency
(except if the Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any lower rating that
will not result in the downgrading, qualification or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency and that have a maturity date
occurring no more than 365 days from their date of issuance;
(ix) units of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating Agency and has
not rated the portfolio, the highest rating assigned by Moody's and (ii) if S&P
is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States of
America and repurchase agreements collateralized by such obligations; and
(x) any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates by
the Rating Agencies, as evidenced by a signed writing delivered by each Rating
Agency.
31
No Permitted Investment may (i) evidence the right to receive
interest-only payments with respect to the obligations underlying the
instrument, (ii) be sold or disposed of before its maturity or (iii) be any
obligation of the Seller or any of its Affiliates. Any Permitted Investment
shall be relatively risk free and no options or voting rights shall be exercised
with respect to any Permitted Investment. Any Permitted Investment shall be sold
or disposed in accordance with Financial Accounting Standard 140, paragraph
35c(6) in effect as of the Closing Date.
Permitted Transferee: Any person other than
(i) the United States, any State or political subdivision thereof, or any
agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives described in
section 521 of the Code) that is exempt from tax imposed by Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on unrelated business
taxable income) on any excess inclusions (as defined in section 860E(c)(1) of
the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of the Code,
(vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based on an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to the Person may cause any REMIC to fail to qualify as a REMIC at any time that
the Certificates are outstanding.
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
Physical Certificates: As specified in the Preliminary Statement.
Plan: An "employee benefit plan" as defined in section 3(3) of ERISA that
is subject to Title I of ERISA, a "plan" as defined in section 4975 of the Code
that is subject to section 4975 of the Code, or any Person investing on behalf
of or with plan assets (as defined in 29 CFR ss.2510.3-101 or otherwise under
ERISA) of such an employee benefit plan or plan.
Planned Balance: With respect to the Planned Principal Classes in the
aggregate and any Distribution Date appearing in the aggregate Principal Balance
Schedule, the amount appearing opposite such Distribution Date for such Planned
Principal Classes.
Planned Principal Classes: As specified in the Preliminary Statement.
Pool Principal Balance: The aggregate Stated Principal Balances of the
Mortgage Loans.
32
Prepayment Charge: A Hard Prepayment Charge or Soft Prepayment Charge, as
the context may require.
Prepayment Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment Interest Excess: As to any Principal Prepayment received by the
Servicer on a Mortgage Loan from the first day through the fifteenth day of any
calendar month other than the month of the Cut-off Date, all amounts paid by the
related Mortgagor in respect of interest on such Principal Prepayment. All
Prepayment Interest Excess shall be retained by the Servicer as additional
servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of the month
preceding the month of such Distribution Date (or, in the case of the first
Distribution Date, on or after the Cut-off Date) and on or before the last day
of the month preceding the month of such Distribution Date, the amount, if any,
by which one month's interest at the related Mortgage Rate, net of the Servicing
Fee Rate, on such Principal Prepayment exceeds the amount of interest paid in
connection with such Principal Prepayment.
Prepayment Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of the month immediately prior to the
month of such Distribution Date (or, in the case of the first Distribution Date,
from the Cut-off Date) and to and including the 15th day of the month of such
Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any Mortgage Loan.
Principal Balance Schedules: Not applicable.
Principal Distribution Amount: With respect to each Distribution Date, an
amount equal to the sum of (1) the Principal Remittance Amount for that
Distribution Date, less any portion of such amount used to cover any payment due
to the Swap Counterparty under either the Class A-1 Swap Contract or the
Certificate Swap Contract with respect to that Distribution Date minus the
Overcollateralization Release Amount for that Distribution Date and (2) the
Extra Principal Distribution Amount for that Distribution Date.
Principal Only Certificates: As specified in the Preliminary Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the principal portion of the Purchase Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received in advance of
its scheduled Due Date and is not accompanied by an amount representing
scheduled interest due on any date in any month after the month of prepayment.
The Servicer shall apply partial Principal Prepayments in accordance with the
related Mortgage Note.
Principal Prepayment Amount: As to any Distribution Date, an amount equal
to the sum of all voluntary Principal Prepayments on the Mortgage Loans received
during the related Prepayment Period.
Principal Prepayment in Full: Any Principal Prepayment made by a Mortgagor
of the entire principal balance of a Mortgage Loan.
33
Principal Remittance Amount: For any Distribution Date is equal to:
(a) the sum, without duplication, of:
(1) all principal collected or advanced on the Mortgage Loans
with respect to the related Due Date,
(2) Principal Prepayments on the Mortgage Loans collected
during the related Prepayment Period,
(3) the Stated Principal Balance of each Mortgage Loan that
was repurchased by the Seller or purchased by the Servicer with
respect to that Distribution Date,
(4) any Substitution Adjustment Amounts, and
(5) all liquidation proceeds (to the extent such liquidation
proceeds related to principal) and all Subsequent Recoveries
received during the related Prepayment Period
minus
(b) all non-recoverable Advances relating to principal on the
Mortgage Loans and certain expenses reimbursed since the prior Due Date.
Private Certificates: As specified in the Preliminary Statement.
Proprietary Lease: For any Cooperative Unit, a lease or occupancy
agreement between a Cooperative Corporation and a holder of related Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated June 27, 2006,
relating to the Offered Certificates, and any supplement thereto.
PUD: Planned Unit Development.
Purchase Price: For any Mortgage Loan required to be purchased by the
Seller pursuant to Section 2.02 or 2.03 or purchased by the Servicer pursuant to
Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on the date
of the purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x) the purchaser
is the Servicer or (y) if the purchaser is the Seller and the Seller is the
Servicer) from the date through which interest was last paid by the Mortgagor to
the Due Date in the month in which the Purchase Price is to be distributed to
Certificateholders, net of any unreimbursed Advances made by the Servicer on the
Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in connection with
any violation by the Mortgage Loan of any predatory or abusive lending law.
If the Mortgage Loan is purchased pursuant to Section 3.12, the interest
component of the Purchase Price shall be computed (i) on the basis of the
applicable Adjusted Mortgage Rate before giving effect to the related
modification and (ii) from the date to which interest was last paid to the date
on which the Mortgage Loan is assigned to the Servicer pursuant to Section 3.12.
34
Qualified Insurer: A mortgage guaranty insurance company duly qualified as
such under the laws of the state of its principal place of business and each
state having jurisdiction over the insurer in connection with the insurance
policy issued by the insurer, duly authorized and licensed in such states to
transact a mortgage guaranty insurance business in such states and to write the
insurance provided by the insurance policy issued by it, approved as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability rating of at
least "AA" or equivalent rating by a nationally recognized statistical rating
organization. Any replacement insurer with respect to a Mortgage Loan must have
at least as high a claims paying ability rating as the insurer it replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the Preliminary
Statement. If any of them or a successor is no longer in existence, "Rating
Agency" shall be the nationally recognized statistical rating organization, or
other comparable Person, designated by the Depositor, notice of which
designation shall be given to the Trustee. References to a given rating or
rating category of a Rating Agency means the rating category without giving
effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to which
interest was last paid or advanced (and not reimbursed) to Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are required to be
distributed on the Stated Principal Balance of such Liquidated Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any, received during
the month in which such liquidation occurred, to the extent applied as
recoveries of interest at the Adjusted Net Mortgage Rate and to principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that has become the
subject of a Deficient Valuation, if the principal amount due under the related
Mortgage Note has been reduced, the difference between the principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient Valuation and
the principal balance of the Mortgage Loan as reduced by the Deficient
Valuation. With respect to each Mortgage Loan which has become the subject of a
Debt Service Reduction and any Distribution Date, the amount, if any, by which
the principal portion of the related Scheduled Payment has been reduced.
To the extent the Servicer receives Subsequent Recoveries with respect to
any Mortgage Loan, the amount of the Realized Loss with respect to that Mortgage
Loan will be reduced by such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement between the
Cooperative Corporation and the originator of the Mortgage Loan that establishes
the rights of the originator in the Cooperative Property.
Record Date: With respect to any Distribution Date and any Definitive
Certificate and the Delay Certificates, the close of business on the last
Business Day of the month preceding the month of that Distribution Date. With
respect to any Distribution Date and the LIBOR Certificates as long as they are
Book-Entry Certificates, the Business Day immediately prior to such Distribution
Date.
Reference Bank: As defined in Section 4.08.
Refinance Loan: Any Mortgage Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular Certificates: As specified in the Preliminary Statement.
35
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Relief Act: The Servicemembers Civil Relief Act.
REMIC: A "real estate mortgage investment conduit" within the meaning of
section 860D of the Code.
REMIC Provisions: Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations promulgated thereunder, as the foregoing may be in effect from time
to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K, and in
any event, the following:
(a) entry into a definitive agreement related to the Trust Fund, the
Certificates or the Mortgage Loans, or an amendment to a Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a servicing
agreement with a servicer contemplated by Item 1108(a)(3) of Regulation AB);
(b) termination of a Transaction Document (other than by expiration of the
agreement on its stated termination date or as a result of all parties
completing their obligations under such agreement), even if the Depositor is not
a party to such agreement (e.g., a servicing agreement with a servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Servicer only, if the Servicer becomes aware of
any bankruptcy or receivership with respect to the Seller, the Depositor, the
Servicer, the Trustee, the Cap Counterparty, the Swap Counterparty, any
enhancement or support provider contemplated by Items 1114(b) or 1115 of
Regulation AB, or any other material party contemplated by Item 1101(d)(1) of
Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor only, the
occurrence of an early amortization, performance trigger or other event,
including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
(f) the resignation, removal, replacement, substitution of the Servicer or
the Trustee;
(g) with respect to the Servicer only, if the Servicer becomes aware that
(i) any material enhancement or support specified in Item 1114(a)(1) through (3)
of Regulation AB or Item 1115 of Regulation AB that was previously applicable
regarding one or more Classes of the Certificates has terminated other than by
expiration of the contract on its stated termination date or as a result of all
parties completing their obligations under such agreement; (ii) any material
enhancement specified in Item 1114(a)(1) through (3) of Regulation AB or Item
1115 of Regulation AB has been added with respect to
36
one or more Classes of the Certificates; or (iii) any existing material
enhancement or support specified in Item 1114(a)(1) through (3) of Regulation AB
or Item 1115 of Regulation AB with respect to one or more Classes of the
Certificates has been materially amended or modified; and
(h) with respect to the Trustee, the Servicer and the Depositor only, a
required distribution to Holders of the Certificates is not made as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the Trustee, any
Subcontractor determined by such Person pursuant to Section 11.08(b) to be
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer only to the
Subcontractor of such Person and shall not refer to Subcontractors generally.
Request for Release: The Request for Release submitted by the Servicer to
the Trustee, substantially in the form of Exhibits M and N, as appropriate.
Required Insurance Policy: For any Mortgage Loan, any insurance policy
that is required to be maintained from time to time under this Agreement.
Residual Certificates: As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any Managing
Director, any Director, Vice President, any Assistant Vice President, any
Associate, any Assistant Secretary, any Trust Officer, or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers who at such time shall be officers to whom,
with respect to a particular matter, the matter is referred because of the
officer's knowledge of and familiarity with the particular subject and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As defined in Section 4.02(e).
Rolling Sixty Day Delinquency Rate: With respect to any Distribution Date,
an amount equal to the average of the Sixty Day Delinquency Rates for each that
Distribution Date and the two immediately preceding Distribution Dates.
SAIF: The Savings Association Insurance Fund, or any successor thereto.
Xxxxxxxx-Xxxxx Certification: As defined in Section 11.05.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc. If
S&P is designated as a Rating Agency in the Preliminary Statement, for purposes
of Section 10.05(b) the address for notices to S&P shall be Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Mortgage Surveillance Monitoring, or any other address that
S&P furnishes to the Depositor and the Servicer.
Scheduled Balance: Not applicable.
Scheduled Classes: As specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan due on
any Due Date allocable to principal and/or interest on such Mortgage Loan which,
unless otherwise specified herein, shall give effect to any related Debt Service
Reduction and any Deficient Valuation that affects the amount of the monthly
payment due on such Mortgage Loan.
37
Securities Act: The Securities Act of 1933, as amended.
Security Agreement: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the originator of the related Mortgage
Note that defines the security interest in the Co-op Shares and the related
Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its successors
and assigns, in its capacity as seller of the Mortgage Loans to the Depositor.
Senior Certificate Group: As specified in the Preliminary Statement.
Senior Certificates: As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: Not applicable.
Senior Enhancement Percentage: With respect to a Distribution Date on or
after the Stepdown Date a fraction (expressed as a percentage):
(1) the numerator of which is sum of the aggregate Class Certificate
Balance of the Subordinated Certificates and the Overcollateralized Amount
(which, for purposes of this definition only, shall not be less than zero)
and
(2) the denominator of which is the Pool Principal Balance as of the
Due Date in the prior month (after giving effect to Principal Prepayments
in the Prepayment Period related to that prior Due Date).
Senior Principal Distribution Amount: For any Distribution Date an amount
equal to the amount, if any, by which (x) the aggregate Class Certificate
Balance of the Classes of Senior Certificates immediately prior to that
Distribution Date exceeds (y) the Senior Target Amount.
Senior Target Amount: For any Distribution Date, (x) after the Stepdown
Date and when a Trigger Event is not in effect, an amount equal to the lesser of
(a) the product of (1) approximately 85.10% and (2) the Pool Principal Balance
as of the Due Date in the month of that Distribution Date (after giving effect
to Principal Prepayments received in the related Prepayment Period) and (b) the
amount, if any, by which (1) the Pool Principal Balance as of the Due Date in
the month of that Distribution Date (after giving effect to Principal
Prepayments received in the related Prepayment Period) exceeds (2) the OC Floor,
and (y) for any other Distribution Date after the Stepdown Date on which a
Trigger Event is in effect, the Senior Target Amount for the immediately
preceding Distribution Date.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its successors
and assigns, in its capacity as servicer under this Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M. Pacific
time on the Business Day preceding the Distribution Date.
Servicing Account: The separate Eligible Account or Accounts created and
maintained pursuant to Section 3.06(b).
38
Servicing Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the performance by the Servicer of its
servicing obligations, including the cost of
(a) the preservation, restoration, and protection of a Mortgaged
Property,
(b) expenses reimbursable to the Servicer pursuant to Section 3.12
and any enforcement or judicial proceedings, including foreclosures,
(c) the maintenance and liquidation of any REO Property,
(d) compliance with the obligations under Section 3.10, and
(e) reasonable compensation to the Servicer or its affiliates for
acting as broker in connection with the sale of foreclosed Mortgaged
Properties and for performing certain default management and other similar
services (including appraisal services) in connection with the servicing
of defaulted Mortgage Loans. For purposes of this clause (e), only costs
and expenses incurred in connection with the performance of activities
generally considered to be outside the scope of customary servicing or
master servicing duties shall be treated as Servicing Advances.
Servicing Criteria: The "servicing criteria" set forth in Item 1122(d) of
Regulation AB.
Servicing Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever a payment of interest accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for the period
covered by the payment of interest, subject to reduction as provided in Section
3.15.
Servicing Fee Rate: For each Mortgage Loan, 0.375% per annum.
Servicing Officer: Any officer of the Servicer involved in, or responsible
for, the administration and servicing of the Mortgage Loans whose name and
facsimile signature appear on a list of servicing officers furnished to the
Trustee by the Servicer on the Closing Date pursuant to this Agreement, as the
list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by the
Servicer with respect to mortgage loans comparable to the Mortgage Loans
serviced by the Servicer for itself or others.
Shift Percentage: Not applicable.
Six-Month LIBOR Index: The average of the London interbank offered rates
for six month U.S. dollar deposits in the London market, generally as set forth
in either The Wall Street Journal or some other source generally accepted in the
residential mortgage loan origination business and specified in the related
Mortgage Note or, if such rate ceases to be published in The Wall Street Journal
or becomes unavailable for any reason, then based upon a new index selected by
the Servicer, based on comparable information, in each case, as most recently
announced as of either 45 days prior to, or the first Business Day of the month
immediately preceding the month of, such Adjustment Date.
Sixty-Day Delinquency Rate: With respect to any Distribution Date on or
after the Stepdown Date, a fraction, expressed as a percentage, the numerator of
which is the aggregate Stated Principal Balance of all Mortgage Loans 60 or more
days delinquent as of the close of business on the last day of the calendar
month preceding such Distribution Date (including Mortgage Loans in foreclosure,
39
bankruptcy and REO Properties) and the denominator of which is the aggregate
Stated Principal Balance for such Distribution Date of the Mortgage Loans as of
the related Due Date (after giving effect to Principal Prepayments, the
principal portion of any Liquidation Proceeds and any Subsequent Recoveries
received in the related Prepayment Period).
Soft Prepayment Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all prepayments in
full made within the related Prepayment Charge Period other than as a result of
selling the Mortgaged Property, the Soft Prepayment Charges with respect to each
applicable Mortgage Loan so held by the Trust Fund being identified in the
Mortgage Loan Schedule.
Special Hazard Coverage Termination Date: Not applicable.
Special Hazard Loss: Not applicable.
Special Hazard Loss Coverage Amount: Not applicable.
Special Hazard Mortgage Loan: Not applicable.
Startup Day: The Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date, the unpaid
principal balance of such Mortgage Loan as of such Due Date, as specified in the
amortization schedule at the time relating thereto (before any adjustment to
such amortization schedule by reason of any moratorium or similar waiver or
grace period) after giving effect to the sum of: (i) the payment of principal
due on such Due Date and irrespective of any delinquency in payment by the
related Mortgagor and (ii) any Liquidation Proceeds allocable to principal
received in the prior calendar month and any Principal Prepayments received
through the last day of the related Prepayment Period, in each case, with
respect to such Mortgage Loan.
Stepdown Date: The earlier to occur of (1) the Distribution Date on which
the aggregate Class Certificate Balance of the Senior Certificates and the Class
M-1 Certificates is reduced to zero and (2) the later to occur of (x) the
Distribution Date in July 2009 and (y) the first Distribution Date on which the
fraction, expressed as a percentage, the numerator of which is the sum of
aggregate Class Certificate Balance of the Subordinated Certificates (other than
the Class M-1 Certificates) and the Overcollateralized Amount, if any, and the
denominator of which is the Pool Principal Balance as of the Due Date in the
prior month (after giving effect to Principal Prepayments in the Prepayment
Period related to that prior Due Date) exceeds or equals 14.90%.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood by
participants in the mortgage-backed securities market) of Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Servicer or the Trustee, as the case may be.
Subordinated Certificates: As specified in the Preliminary Statement.
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.
40
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for a
Deleted Mortgage Loan that must, on the date of substitution, as confirmed in a
Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not more than 10% less than, the Stated Principal Balance of the Deleted
Mortgage Loan (unless the amount of any shortfall is deposited by the Seller in
the Certificate Account and held for distribution to the Certificateholders on
the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per annum
higher than the Deleted Mortgage Loan;
(iii) have a Maximum Mortgage Rate not more than 1% per annum higher than
and not lower than the Maximum Mortgage Rate of the Deleted Mortgage Loan,
(iv) have the same Mortgage Index and interval between Adjustment Dates as
the Deleted Mortgage Loan and a Gross Margin not more than 1% per annum higher
than, and not lower than that of the Deleted Mortgage Loan;
(vi) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan;
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(ix) comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Suspension Notification: Notification to the Commission of the suspension
of the Trust Fund's obligation to file reports pursuant to Section 15(d) of the
Exchange Act.
Swap Account: Either of the Certificate Swap Account or the Class A-1 Swap
Account, as applicable, created and initially maintained by the Swap Trustee
pursuant to Section 4.08.
Swap Adjustment Rate: For each Interest Accrual Period and Distribution
Date, a fraction, expressed as a percentage, (A) the numerator of which is equal
to the sum of (a) the product of (i) the Net Swap Payments payable to the Swap
Counterparty under either the Class A-1 Swap Contract or the Certificate Swap
Contract with respect to that Distribution Date and (ii) a fraction, the
numerator of which is 360 and the denominator of which is the actual number of
days in the related Interest Accrual Period and (b) any Swap Termination
Payments payable to the Swap Counterparty under either of the Class A-1 Swap
Contract or the Certificate Swap Contract for that Distribution Date (other than
a Swap Termination Payment due to a Swap Counterparty Trigger Event) and (B) the
denominator of which is equal to the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the prior calendar month (after giving
effect to Principal Prepayments received in the Prepayment Period related to
that prior Due Date).
Swap Certificates: The LIBOR Certificates.
41
Swap Contract: The Certificate Swap Contract or the Class A-1 Swap
Contract, as applicable.
Swap Counterparty: Deutsche Bank AG, New York Branch
Swap Contract Termination Date: The Certificate Swap Contract Termination
Date or the Class A-1 Swap Contract Termination Date, as applicable.
Swap Counterparty Trigger Event: A Swap Termination Payment that is
triggered upon (i) an "Event of Default" under a Swap Contract with respect to
which the Swap Counterparty is the sole `Defaulting Party" (as defined in such
Swap Contract) or (ii) a "Termination Event" or "Additional Termination Event"
under a Swap Contract with respect to which the Swap Counterparty is the sole
"Affected Party" (as defined in such Swap Contract).
Swap Table: The table set forth below:
42
Month of Distribution Certificate Swap Contract
Date Notional Balance ($)
--------------------- -------------------------
August 2006 1,017,229.93
September 2006 987,362.82
October 2006 958,372.18
November 2006 930,232.30
December 2006 902,918.24
January 2007 876,405.75
February 2007 850,671.34
March 2007. 825,692.17
April 2007. 801,446.09
May 2007... 777,911.59
June 2007.. 755,067.81
July 2007.. 732,894.47
August 2007 711,371.91
September 2007 690,481.04
October 2007 670,203.32
November 2007 650,520.77
December 2007 631,415.92
January 2008 612,871.83
February 2008 594,872.05
March 2008. 577,400.61
April 2008. 560,442.00
May 2008... 543,981.18
June 2008.. 528,003.55
July 2008.. 512,494.92
August 2008 497,441.55
September 2008 482,830.06
October 2008 468,647.50
November 2008 454,881.28
December 2008 441,519.18
January 2009 428,549.35
February 2009 415,960.27
March 2009. 403,740.78
April 2009. 391,880.03
May 2009... 380,367.49
June 2009.. 352,278.41
July 2009.. 341,928.72
August 2009 331,882.90
September 2009 322,132.03
October 2009 312,667.45
November 2009 303,480.77
December 2009 294,563.83
January 2010 285,908.72
February 2010 277,507.74
March 2010. 269,353.44
April 2010. 261,438.59
May 2010... 253,756.15
June 2010.. 246,299.30
July 2010.. 239,061.42
August 2010 232,036.10
September 2010 225,217.08
October 2010 218,598.31
November 2010 212,173.92
43
Month of Distribution Certificate Swap Contract
Date Notional Balance ($)
--------------------- -------------------------
December 2010 205,938.20
January 2011 199,885.61
February 2011 194,010.78
March 2011. 188,308.49
April 2011. 182,773.67
May 2011... 177,401.42
June 2011 and 0.00
thereafter.
Swap Termination Payment : The payment payable to either party under a
Swap Contract due to an early termination of such Swap Contract.
Swap Trust: The trust fund established by Section 4.08.
Swap Trustee: Deutsche Bank National Trust Company, not in its individual
capacity, but solely in its capacity as trustee for the benefit of the Holders
of the LIBOR Certificates under this Agreement, and any successor thereto, and
any corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be servicing as successor trustee
under this Agreement.
Target Amount: For any Distribution Date, an amount equal to the Pool
Principal Balance for that Distribution Date minus the Targeted
Overcollateralization Amount for that Distribution Date.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary Statement.
Transaction Documents: This Agreement, the Swap Contracts and any other
document or agreement entered into in connection with the Trust Fund, the
Certificates or the Mortgage Loans.
Transfer: Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trigger Event: With respect to a Distribution Date on or after the
Stepdown Date either a Delinquency Trigger Event is in effect with respect to
that Distribution Date or a Cumulative Loss Trigger Event is in effect with
respect to that Distribution Date.
Trust Fund: The corpus of the trust created under this Agreement
consisting of
(i) the Mortgage Loans and all interest and principal received on them
after the Cut-off Date, other than amounts due on the Mortgage Loans by the
Cut-off Date;
(ii) the Certificate Account, the Distribution Account, the Carryover
Reserve Fund and all amounts deposited therein pursuant to this Agreement
(including amounts received from the Seller on the Closing Date that will be
deposited by the Trustee in the Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
44
(iv) the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections received under any
mortgage insurance policies covering any Mortgage Loan; and
(v) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors and, if a
successor trustee is appointed under this Agreement, the successor.
Trustee Fee: The fee payable to the Trustee on each Distribution Date for
its services as Trustee hereunder, in an amount equal to one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the month preceding the month of such
Distribution Date (after giving effect to Principal Prepayments in the
Prepayment Period related to that prior Due Date).
Trustee Fee Rate: 0.0085% per annum.
The terms "United States," "State," and "International Organization" have
the meanings in section 7701 of the Code or successor provisions. A corporation
will not be treated as an instrumentality of the United States or of any State
or political subdivision thereof for these purposes if all of its activities are
subject to tax and, with the exception of the Federal Home Loan Mortgage
Corporation, a majority of its board of directors is not selected by such
government unit.
UCC: The Uniform Commercial Code for the State of New York.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41, 67 Fed.
Reg. 54487 (2002) (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor.
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax purposes)
created or organized in the United States or under the laws of the United States
or of any state thereof, including, for this purpose, the District of Columbia;
(iii) a partnership (or entity treated as a partnership for tax purposes)
organized in the United States or under the laws of the United States or of any
state thereof, including, for this purpose, the District of Columbia (unless
provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more U.S.
Persons have authority to control all substantial decisions of the trust.
Notwithstanding the last clause of the preceding sentence, to the extent
provided in Treasury regulations, certain trusts in existence on August 20,
1996, and treated as U.S. Persons before that date, may elect to continue to be
U.S. Persons.
45
Unpaid Realized Loss Amount: For any Class of LIBOR Certificates, (x) the
portion of the aggregate Applied Realized Loss Amount previously allocated to
that Class remaining unpaid from prior Distribution Dates minus (y) any increase
in the Class Certificate Balance of that Class due to the allocation of
Subsequent Recoveries to the Class Certificate Balance of that Class.
U.S.A. Patriot Act: The Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
Voting Rights: The portion of the voting rights of all of the Certificates
that is allocated to any Certificate. As of any date of determination, (a) 1% of
all Voting Rights shall be allocated to the Holders of the Class P, Class C and
Class A-R Certificates and (b) the remaining Voting Rights shall be allocated
among Holders of the remaining Classes of Certificates in proportion to the
Certificate Balances of the respective Certificates on that date.
Weighted Average Adjusted Net Mortgage Rate: For any Distribution Date,
the average of the Adjusted Net Mortgage Rate of each Mortgage Loan, weighted on
the basis of its Stated Principal Balance as of the Due Date in the prior month
(after giving effect to Principal Prepayments in the Prepayment Period related
to such prior Due Date).
Withdrawal Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section 1.02. Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections, exhibits,
and other subdivisions of this Agreement, such as "Section 6.12 (a)," refer to
the designated article, section, subsection, exhibit, or other subdivision of
this Agreement as a whole and to all subdivisions of the designated article,
section, subsection, exhibit, or other subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other words of similar import refer to this
Agreement as a whole and not to any particular article, section, exhibit, or
other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or regulation
includes any amendments, modifications, supplements, or any other changes that
may have occurred since the document, statute, rule, or regulation came into
being, including changes that occur after the date of this Agreement.
(c) Any party may execute any of the requirements under this Agreement
either directly or through others, and the right to cause something to be done
rather than doing it directly shall be implicit in every requirement under this
Agreement. Unless a provision is restricted as to time or limited as to
frequency, all provisions under this Agreement are implicitly available and
things may happen from time to time.
(d) The term "including" and all its variations mean "including but not
limited to." Except when used in conjunction with the word "either," the word
"or" is always used inclusively (for example, the phrase "A or B" means "A or B
or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not imply the
existence or occurrence of the thing referred to even though not followed by "if
any," and "any [of a thing]" is any of
46
it. A reference to the plural of anything as to which there could be either one
or more than one does not imply the existence of more than one (for instance,
the phrase "the obligors on a note" means "the obligor or obligors on a note").
"Until [something occurs]" does not imply that it must occur, and will not be
modified by the word "unless." The word "due" and the word "payable" are each
used in the sense that the stated time for payment has passed. The word
"accrued" is used in its accounting sense, i.e., an amount paid is no longer
accrued. In the calculation of amounts of things, differences and sums may
generally result in negative numbers, but when the calculation of the excess of
one thing over another results in zero or a negative number, the calculation is
disregarded and an "excess" does not exist. Portions of things may be expressed
as fractions or percentages interchangeably.
(f) All accounting terms used in an accounting context and not otherwise
defined, and accounting terms partly defined in this Agreement, to the extent
not completely defined, shall be construed in accordance with generally accepted
accounting principles. To the extent that the definitions of accounting terms in
this Agreement are inconsistent with their meanings under generally accepted
accounting principles, the definitions contained in this Agreement shall
control. Capitalized terms used in this Agreement without definition that are
defined in the Uniform Commercial Code are used in this Agreement as defined in
the Uniform Commercial Code.
(g) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the words "from" and "beginning"
mean "from and including," the word "after" means "from but excluding," the
words "to" and "until" mean "to but excluding," and the word "through" means "to
and including." Likewise, in setting deadlines or other periods, "by" means
"by." The words "preceding," "following," and words of similar import, mean
immediately preceding or following. References to a month or a year refer to
calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against a party
means that it is enforceable, subject as to enforcement against the party, to
applicable bankruptcy, insolvency, reorganization, and other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
47
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01. Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Depositor, without recourse, all the interest
of the Seller in each Mortgage Loan, including all interest and principal
received or receivable by the Seller on each Mortgage Loan after the Cut-off
Date and all interest and principal payments on each Mortgage Loan received
before the Cut-off Date for installments of interest and principal due after the
Cut-off Date but not including payments of principal and interest due by the
Cut-off Date. By the Closing Date, the Seller shall deliver to the Depositor or,
at the Depositor's direction, to the Trustee or other designee of the Depositor,
the Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule
(except that, in the case of Mortgage Loans that are Delay Delivery Mortgage
Loans, such delivery may take place within five Business Days of the Closing
Date) as of the Closing Date. The delivery of the Mortgage Files shall be made
against payment by the Depositor of the purchase price, previously agreed to by
the Seller and Depositor, for the Mortgage Loans. With respect to any Mortgage
Loan that does not have a first payment date on or before the Due Date in the
month of the first Distribution Date, the Seller shall deposit into the
Distribution Account on the first Distribution Account Deposit Date an amount
equal to one month's interest at the related Adjusted Mortgage Rate on the
Cut-off Date Principal Balance of such Mortgage Loan. On the Closing Date the
Depositor shall also deposit or shall cause to be deposited $1,000 into the
Carryover Reserve Fund and $100 into the Certificate Account.
(b) The Depositor, concurrently with the execution and delivery of this
Agreement, hereby (i) transfers to the Trustee for the benefit of the
Certificateholders, without recourse, all the interest of the Depositor in the
Trust Fund, together with the Depositor's right to require the Seller to cure
any breach of a representation or warranty made in this Agreement by the Seller
or to repurchase or substitute for any affected Mortgage Loan in accordance with
this Agreement. The Depositor hereby directs the Swap Trustee to execute each
Swap Contract.
(c) In connection with the transfer and assignment of each Mortgage Loan,
the Depositor has delivered (or, in the case of the Delay Delivery Mortgage
Loans, will deliver to the Trustee within the time periods specified in the
definition of Delay Delivery Mortgage Loans), for the benefit of the
Certificateholders the following documents or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all intervening
endorsements showing a complete chain of endorsement from the originator
to the Person endorsing the Mortgage Note (each endorsement being
sufficient to transfer all interest of the party so endorsing, as
noteholder or assignee thereof, in that Mortgage Note) or a lost note
affidavit for any Lost Mortgage Note from the Seller stating that the
original Mortgage Note was lost or destroyed, together with a copy of the
Mortgage Note.
(ii) except as provided below and for each Mortgage Loan that is not
a MERS Mortgage Loan, the original recorded Mortgage or a copy of such
Mortgage certified by the Seller as being a true and complete copy of the
Mortgage (or, in the case of a Mortgage for which the related Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy of the
Mortgage certified as such by the applicable notary) and in the case of
each MERS Mortgage Loan, the original Mortgage, noting the presence of the
MIN of the Mortgage Loans and either
48
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at
origination, the original Mortgage and the assignment thereof to MERS,
with evidence of recording indicated thereon, or a copy of the Mortgage
certified by the public recording office in which such Mortgage has been
recorded.
(iii) In the case of a Mortgage Loan that is not a MERS Mortgage
Loan, a duly executed assignment of the Mortgage (which may be included in
a blanket assignment or assignments), together with, except as provided
below, all interim recorded assignments of the mortgage (each assignment,
when duly and validly completed, to be in recordable form and sufficient
to effect the assignment of and transfer to its assignee of the Mortgage
to which the assignment relates). If the related Mortgage has not been
returned from the applicable public recording office, the assignment of
the Mortgage may exclude the information to be provided by the recording
office. The assignment of Mortgage need not be delivered in the case of a
Mortgage for which the related Mortgage Property is located in the
Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate original
lender's title policy and all its riders.
(vi) The originals of the following documents for each Cooperative
Loan:
(A) the Co-op Shares, together with a stock power in blank;
(B) the executed Security Agreement;
(C) the executed Proprietary Lease;
(D) the executed Recognition Agreement;
(E) the executed UCC-1 financing statement that has been filed
in all places required to perfect the Seller's interest in the Co-op
Shares and the Proprietary Lease with evidence of recording on it;
and
(F) executed UCC-3 financing statements or other appropriate
UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with
evidence of recording thereon (or in a form suitable for
recordation). If in connection with any Mortgage Loan the Depositor
cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its
riders).
In addition, in connection with the assignment of any MERS Mortgage Loan,
the Seller agrees that it will cause, at the Seller's expense, the MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to the Depositor
have been assigned by the Seller to the Trustee in accordance with this
49
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans that are repurchased in accordance with this
Agreement) in such computer files the information required by the MERS(R) System
to identify the series of the Certificates issued in connection with such
Mortgage Loans. The Seller further agrees that it will not, and will not permit
the Servicer to, and the Servicer agrees that it will not, alter the information
referenced in this paragraph with respect to any Mortgage Loan sold by the
Seller to the Depositor during the term of this Agreement unless and until such
Mortgage Loan is repurchased in accordance with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not a MERS
Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title policy (together
with all riders thereto) satisfying the requirements of clause (ii), (iii) or
(v) above, respectively, concurrently with the execution and delivery of this
Agreement because such document or documents have not been returned from the
applicable public recording office in the case of clause (ii) or (iii) above, or
because the title policy has not been delivered to either the Servicer or the
Depositor by the applicable title insurer in the case of clause (v) above, then
the Depositor shall promptly deliver to the Trustee, in the case of clause (ii)
or (iii) above, the original Mortgage or the interim assignment, as the case may
be, with evidence of recording indicated on when it is received from the public
recording office, or a copy of it, certified, if appropriate, by the relevant
recording office and in the case of clause (v) above, the original or a copy of
a written commitment or interim binder or preliminary report of title issued by
the title insurance or escrow company, with the original or duplicate copy
thereof to be delivered to the Trustee upon receipt thereof. The delivery of the
original Mortgage Loan and each interim assignment or a copy of them, certified,
if appropriate, by the relevant recording office, shall not be made later than
one year following the Closing Date, or, in the case of clause (v) above, later
than 120 days following the Closing Date. If the Depositor is unable to deliver
each Mortgage by that date and each interim assignment because any documents
have not been returned by the appropriate recording office, or, in the case of
each interim assignment, because the related Mortgage has not been returned by
the appropriate recording office, the Depositor shall deliver the documents to
the Trustee as promptly as possible upon their receipt and, in any event, within
720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or modification of a
Mortgage Loan and (b) any other documents required to be delivered by the
Depositor or the Servicer to the Trustee. If the original Mortgage is not
delivered and in connection with the payment in full of the related Mortgage
Loan the public recording office requires the presentation of a "lost
instruments affidavit and indemnity" or any equivalent document, because only a
copy of the Mortgage can be delivered with the instrument of satisfaction or
reconveyance, the Servicer shall execute and deliver the required document to
the public recording office. If a public recording office retains the original
recorded Mortgage or if a Mortgage is lost after recordation in a public
recording office, the Seller shall deliver to the Trustee a copy of the Mortgage
certified by the public recording office to be a true and complete copy of the
original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan under
this Agreement, and in any event within thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the appropriate
public office for real property records the assignments of the Mortgages to the
Trustee, except that, if the Trustee has not received the information required
to deliver any assignment of a Mortgage for recording, the Trustee shall deliver
it as soon as practicable after receipt of the needed information and in any
event within thirty days.
The Trustee need not record any assignment that relates to a Mortgage Loan
(a) the Mortgaged Property and Mortgage File relating to which are located in
California or (b) in any other jurisdiction (including Puerto Rico) under the
laws of which, as evidenced by an Opinion of Counsel delivered by the
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Seller (at the Seller's expense) to the Trustee, recording the assignment is not
necessary to protect the Trustee's and the Certificateholders' interest in the
related Mortgage Loan. The Seller shall deliver such Opinion of Counsel within
90 days of the Closing Date.
If any Mortgage Loans have been prepaid in full as of the Closing Date,
the Depositor, in lieu of delivering the above documents to the Trustee, will
deposit in the Certificate Account the portion of the prepayment that is
required to be deposited in the Certificate Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required pursuant to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in Section
2.03 (treating each such Delay Delivery Mortgage Loan as a Deleted
Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the period specified herein, the Seller
shall use its best reasonable efforts to effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan and provided further that the cure
period provided for in Section 2.02 or in Section 2.03 shall not apply to the
initial delivery of the Mortgage File for such Delay Delivery Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such failure to
deliver. At the end of such period, the Trustee shall send a Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered during such period
in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans to the
Depositor as a sale for all tax, accounting, and regulatory purposes.
Section 2.02. Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G-1, and declares that it holds and
will hold such documents and the other documents delivered to it constituting
the Mortgage Files for the Mortgage Loans, and that it holds or will hold such
other assets as are included in the Trust Fund, in trust for the exclusive use
and benefit of all present and future Certificateholders.
The Trustee acknowledges that it will maintain possession of the related
Mortgage Notes in the State of California, unless otherwise permitted by the
Rating Agencies. The Trustee agrees to execute and deliver on the Closing Date
to the Depositor, the Servicer and the Seller an Initial Certification in the
form of Exhibit G-1. Based on its review and examination, and only as to the
documents identified in such Initial Certification, the Trustee acknowledges
that such documents appear regular on their face and relate to such Mortgage
Loans. The Trustee shall be under no duty or obligation to inspect, review or
examine said documents, instruments, certificates or other papers to determine
that the same are genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded in the real estate records or
that they are other than what they purport to be on their face.
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By the thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery Certification with
respect to the Mortgage Loans substantially in the form of Exhibit G-3, with any
applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall deliver to the
Depositor, the Servicer and the Seller a Final Certification with respect to the
Mortgage Loans in the form of Exhibit H-1, with any applicable exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the requirements of
Section 2.01, the Trustee shall list such as an exception in the Final
Certification. The Trustee shall not make any determination as to whether (i)
any endorsement is sufficient to transfer all interest of the party so
endorsing, as noteholder or assignee thereof, in that Mortgage Note or (ii) any
assignment is in recordable form or is sufficient to effect the assignment of
and transfer to the assignee thereof under the mortgage to which the assignment
relates. The Seller shall promptly correct any defect that materially and
adversely affects the interests of the Certificateholders within 90 days from
the date it was so notified of the defect and, if the Seller does not correct
the defect within that period, the Seller shall either (a) substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which substitution shall be
accomplished in the pursuant Section 2.03, or (b) purchase the Mortgage Loan at
its Purchase Price from the Trustee within 90 days from the date the Seller was
notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any documents by the
appropriate recording office, or there is a dispute between either the Servicer
or the Seller and the Trustee over the location or status of the recorded
document, then the substitution or purchase shall occur within 720 days from the
Closing Date. In no other case may a substitution or purchase occur more than
540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency within 270
days from the Closing Date indicating each Mortgage Loan (a) that has not been
returned by the appropriate recording office or (b) as to which there is a
dispute as to location or status of the Mortgage Loan. The notice shall be
delivered every 90 days thereafter until the related Mortgage Loan is returned
to the Trustee. Any substitution pursuant to (a) above or purchase pursuant to
(b) above shall not be effected before the delivery to the Trustee of the
Opinion of Counsel, if required by Section 2.05, and any substitution pursuant
to (a) above shall not be effected before the additional delivery to the Trustee
of a Request for Release substantially in the form of Exhibit N. No substitution
is permitted to be made in any calendar month after the Determination Date for
the month.
The Purchase Price for any Mortgage Loan shall be deposited by the Seller
in the Certificate Account by the Distribution Account Deposit Date for the
Distribution Date in the month following the month of repurchase and, upon
receipt of the deposit and certification with respect thereto in the form of
Exhibit N, the Trustee shall release the related Mortgage File to the Seller and
shall execute and deliver at the Seller's request any instruments of transfer or
assignment prepared by the Seller, in each case without recourse, necessary to
vest in the Seller, or a designee, the Trustee's interest in any Mortgage Loan
released pursuant hereto.
If pursuant to the foregoing provisions the Seller repurchases a Mortgage
Loan that is a MERS Mortgage Loan, the Servicer shall either (i) cause MERS to
execute and deliver an assignment of the Mortgage in recordable form to transfer
the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS(R) System in accordance with MERS' rules and
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regulations or (ii) cause MERS to designate on the MERS(R) System the Seller as
the beneficial holder of such Mortgage Loan.
The Trustee shall retain possession and custody of each Mortgage File in
accordance with and subject to the terms and conditions set forth herein. The
Servicer shall promptly deliver to the Trustee, upon the execution or receipt
thereof, the originals of any other documents or instruments constituting the
Mortgage File that come into the possession of the Servicer from time to time.
The obligation of the Seller to substitute for or to purchase any Mortgage
Loan that does not meet the requirements of Section 2.01 shall constitute the
sole remedy respecting the defect available to the Trustee, the Depositor, and
any Certificateholder against the Seller.
Section 2.03. Representations, Warranties, and Covenants of the Seller and
the Servicer.
(a) IndyMac, in its capacities as Seller and Servicer, makes the
representations and warranties in Schedule II, and by this reference
incorporated in this Agreement, to the Depositor and the Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the representations and
warranties in Schedule III, and by this reference incorporated in this
Agreement, to the Depositor and the Trustee, as of the Closing Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt notice thereof to the other
parties. The Seller covenants that within 90 days of the earlier of its
discovery or its receipt of written notice from any party of a breach of any
representation or warranty made pursuant to Section 2.03(b) which materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
it shall cure such breach in all material respects, and if such breach is not so
cured, shall, (i) if the 90-day period expires before the second anniversary of
the Closing Date, remove the Mortgage Loan (a "Deleted Mortgage Loan") from the
Trust Fund and substitute in its place a Substitute Mortgage Loan, in accordance
with this Section 2.03; or (ii) repurchase the affected Mortgage Loan or
Mortgage Loans from the Trustee at the Purchase Price in the manner set forth
below. Any substitution pursuant to (i) above shall not be effected before the
delivery to the Trustee of the Opinion of Counsel, if required by Section 2.05
and a Request for Release substantially in the form of Exhibit N, and the
Mortgage File for any Substitute Mortgage Loan. The Seller shall promptly
reimburse the Servicer and the Trustee for any expenses reasonably incurred by
the Servicer or the Trustee in respect of enforcing the remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Certificateholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2.01, with the Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No substitution
is permitted to be made in any calendar month after the Determination Date for
such month. Scheduled Payments due with respect to Substitute Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and will be
retained by the Seller on the next succeeding Distribution Date. For the month
of substitution, distributions to Certificateholders will include the monthly
payment due on any Deleted Mortgage Loan for such month and thereafter the
Seller shall be entitled to retain all amounts received in respect of such
Deleted Mortgage Loan.
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The Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Certificateholders to reflect the removal of the Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loans and the Servicer shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon the substitution, the
Substitute Mortgage Loans shall be subject to this Agreement in all respects,
and the Seller shall be deemed to have made with respect to the Substitute
Mortgage Loans, as of the date of substitution, the representations and
warranties made pursuant to Section 2.03(b) with respect to the Mortgage Loan.
Upon any substitution and the deposit to the Certificate Account of the amount
required to be deposited therein in connection with the substitution as
described in the following paragraph, the Trustee shall release the Mortgage
File held for the benefit of the Certificateholders relating to the Deleted
Mortgage Loan to the Seller and shall execute and deliver at the Seller's
direction such instruments of transfer or assignment prepared by the Seller, in
each case without recourse, as shall be necessary to vest title in the Seller,
or its designee, the Trustee's interest in any Deleted Mortgage Loan substituted
for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will
determine the amount (if any) by which the aggregate principal balance of all
such Substitute Mortgage Loans as of the date of substitution is less than the
aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after
application of the scheduled principal portion of the monthly payments due in
the month of substitution). The amount of such shortage (the "Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an amount equal to
the aggregate of any unreimbursed Advances and Servicer Advances with respect to
such Deleted Mortgage Loans shall be deposited into the Certificate Account by
the Seller by the Distribution Account Deposit Date for the Distribution Date in
the month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder. If the Seller repurchases
a Mortgage Loan, the Purchase Price therefor shall be deposited in the
Certificate Account pursuant to Section 3.06 by the Distribution Account Deposit
Date for the Distribution Date in the month following the month during which the
Seller became obligated hereunder to repurchase or replace the Mortgage Loan and
upon such deposit of the Purchase Price and receipt of a Request for Release in
the form of Exhibit N, the Trustee shall release the related Mortgage File held
for the benefit of the Certificateholders to such Person, and the Trustee shall
execute and deliver at such Person's direction such instruments of transfer or
assignment prepared by such Person, in each case without recourse, as shall be
necessary to transfer title from the Trustee. The obligation under this
Agreement of any Person to cure, repurchase, or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedy
against the Person respecting the breach available to Certificateholders, the
Depositor, or the Trustee on their behalf.
The representations and warranties made pursuant to this Section 2.03
shall survive delivery of the respective Mortgage Files to the Trustee for the
benefit of the Certificateholders.
Section 2.04. Representations and Warranties of the Depositor as to the
Mortgage Loans.
The Depositor represents and warrants to the Trustee with respect to each
Mortgage Loan as of the date of this Agreement or such other date set forth in
this Agreement that as of the Closing Date, and following the transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to the Mortgage
Loans and the Mortgage Notes were subject to no offsets, defenses, or
counterclaims.
The representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee. Upon discovery by the Depositor
or the Trustee of any breach of any of the representations and warranties in
this Section that materially and adversely affects the interest of the
Certificateholders, the party discovering the breach shall give prompt written
notice to the others and to each Rating Agency.
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Section 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more than 90 days
after the Closing Date unless the Seller delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect that such
substitution will not (i) result in the imposition of the tax on "prohibited
transactions" on the Trust Fund or contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer or the
Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within
the meaning of section 860G(a)(3) of the Code, the party discovering such fact
shall promptly (and in any event within five Business Days of discovery) give
written notice thereof to the other parties. In connection therewith, the
Trustee shall require the Seller, at the Seller's option, to either (i)
substitute, if the conditions in Section 2.03(c) with respect to substitutions
are satisfied, a Substitute Mortgage Loan for the affected Mortgage Loan, or
(ii) repurchase the affected Mortgage Loan within 90 days of such discovery in
the same manner as it would a Mortgage Loan for a breach of representation or
warranty made pursuant to Section 2.03. The Trustee shall reconvey to the Seller
the Mortgage Loan to be released pursuant hereto in the same manner, and on the
same terms and conditions, as it would a Mortgage Loan repurchased for breach of
a representation or warranty contained in Section 2.03.
Section 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the Trust
Fund and, concurrently with such transfer and assignment, has executed and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations evidencing directly or indirectly the entire ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise the rights
referred to above for the benefit of all present and future Holders of the
Certificates.
Section 2.07. REMIC Matters.
The Preliminary Statement sets forth the designations and "latest possible
maturity date" for federal income tax purposes of all interests created under
this Agreement. The "Startup Day" for purposes of the REMIC Provisions shall be
the Closing Date. Each REMIC's fiscal year shall be the calendar year.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01. Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall service
and administer the Mortgage Loans in accordance with this Agreement and the
Servicing Standard.
The Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any REMIC created
under this Agreement to fail to qualify as a REMIC or result in the imposition
of any tax under section 860F(a) or section 860G(d) of the Code.
Without limiting the generality of the foregoing, the Servicer, in its own
name or in the name of the Depositor and the Trustee, is hereby authorized and
empowered by the Depositor and the Trustee, when the Servicer believes it
appropriate in its reasonable judgment, to execute and deliver, on behalf of the
Trustee, the Depositor, the Certificateholders, or any of them, any instruments
of satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the Depositor or
the Trustee any documents requiring execution and delivery by either or both of
them appropriate to enable the Servicer to service and administer the Mortgage
Loans to the extent that the Servicer is not permitted to execute and deliver
such documents pursuant to the preceding sentence. Upon receipt of the
documents, the Depositor or the Trustee shall execute the documents and deliver
them to the Servicer.
The Servicer further is authorized and empowered by the Trustee, on behalf
of the Certificateholders and the Trustee, in its own name, when the Servicer
believes it appropriate in its best judgment to register any Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of the Trustee and
the Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns.
In accordance with and to the extent of the Servicing Standard, the
Servicer shall advance funds necessary to effect the payment of taxes and
assessments on the Mortgaged Properties, which advances shall be reimbursable in
the first instance from related collections from the Mortgagors pursuant to
Section 3.07, and further as provided in Section 3.09. The costs incurred by the
Servicer in effecting the timely payments of taxes and assessments on the
Mortgaged Properties and related insurance premiums shall not, for the purpose
of calculating monthly distributions to the Certificateholders, be added to the
Stated Principal Balances of the related Mortgage Loans, notwithstanding that
the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer from
undertaking any legal action that it may deem appropriate with respect to the
Mortgage Loans including, without limitation, any rights or causes of action
arising out of the origination of the Mortgage Loans.
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Section 3.02. [Reserved].
Section 3.03. Rights of the Depositor and the Trustee in Respect of the
Servicer.
The Depositor may, but is not obligated to, enforce the obligations of the
Servicer under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Servicer under this
Agreement and in connection with any such defaulted obligation to exercise the
related rights of the Servicer under this Agreement; provided that the Servicer
shall not be relieved of any of its obligations under this Agreement by virtue
of such performance by the Depositor or its designee. Neither the Trustee nor
the Depositor shall have any responsibility or liability for any action or
failure to act by the Servicer nor shall the Trustee or the Depositor be
obligated to supervise the performance of the Servicer under this Agreement or
otherwise.
Section 3.04. [Reserved].
Section 3.05. Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an Event of
Default), the Trustee or its successor shall assume all of the rights and
obligations of the Servicer under this Agreement arising thereafter (except that
the Trustee shall not be
(i) liable for losses of the Servicer pursuant to Section 3.10 or
any acts or omissions of the predecessor Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing so by
applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or substitutions pursuant
to Section 2.02 or 2.03,
(iv) responsible for expenses of the Servicer pursuant to Section
2.03, or
(v) deemed to have made any representations and warranties of the
Servicer hereunder). Any assumption shall be subject to Section 7.02.
Notwithstanding anything else in this Agreement to the contrary, in no
event shall the Trustee be liable for any servicing fee or for any differential
in the amount of the Servicing Fee paid under this Agreement and the amount
necessary to induce any successor Servicer to act as successor Servicer under
this Agreement and the transactions provided for in this Agreement.
Section 3.06. Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account; Certificate Account; Distribution Account.
(a) In accordance with and to the extent of the Servicing Standard, the
Servicer shall make reasonable efforts in accordance with the customary and
usual standards of practice of prudent mortgage servicers to collect all
payments called for under the Mortgage Loans to the extent the procedures are
consistent with this Agreement and any related Required Insurance Policy.
Consistent with the foregoing, the Servicer may in its discretion (i) waive any
late payment charge or, subject to Section 3.21, any Prepayment Charge in
connection with the prepayment of a Mortgage Loan and (ii) extend the due dates
for payments due on a Delinquent Mortgage Loan for a period not greater than 125
days. In connection with a seriously delinquent or defaulted Mortgage Loan, the
Servicer may, consistent with the Servicing
57
Standard, waive, modify or vary any term of that Mortgage Loan (including
modifications that change the Mortgage Rate, forgive the payment of principal or
interest or extend the final maturity date of that Mortgage Loan ), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of that Mortgage Loan, or consent to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor if in the Servicer's determination such waiver,
modification, postponement or indulgence is not materially adverse to the
interests of the Certificateholders (taking into account any estimated loss that
might result absent such action) and is expected to minimize the loss on such
Mortgage Loan; provided, however, the Servicer shall not initiate new lending to
such Mortgagor through the Trust and cannot, except as provided in the
immediately succeeding sentence, extend the maturity of any Mortgage Loan past
the date on which the final payment is due on the latest maturing Mortgage Loan
as of the Cut-off Date. With respect to no more than 5% of the Mortgage Loans
(measured by aggregate Cut-off Date Principal Balance of the Mortgage Loans),
the Servicer may extend the maturity of a Mortgage Loan past the date on which
the final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date, but in no event more than one year past such date. In the event of any
such arrangement, the Servicer shall make Advances on the related Mortgage Loan
in accordance with Section 4.01 during the scheduled period in accordance with
the amortization schedule of the Mortgage Loan without modification thereof
because of the arrangements. The Servicer shall not be required to institute or
join in litigation with respect to collection of any payment (whether under a
Mortgage, Mortgage Note, or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably believes
that enforcing the provision of the Mortgage or other instrument pursuant to
which the payment is required is prohibited by applicable law. The Servicer
shall not have the discretion to sell any Delinquent or defaulted Mortgage Loan.
(b) The Servicer shall establish and maintain one or more Servicing
Accounts (the "Servicing Account") into which the Servicer shall deposit on a
daily basis within one Business Day of receipt, the following payments and
collections received by it after the Cut-off Date (other than in respect of
principal and interest due on the Mortgage Loans by the Cut-off Date):
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the related Servicing Fee; and
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair
of the Mortgaged Property or released to the Mortgagor in accordance with
the Servicer's normal servicing procedures.
By the Withdrawal Date in each calendar month, the Servicer shall (a)
withdraw from the Servicing Account all amounts on deposit therein pursuant to
clauses (i) and (ii) above (other than amounts attributable to a Principal
Prepayment in Full) and (b) deposit such amounts in the Collection Account.
By the Business Day in each calendar month following the deposit in the
Servicing Account of amounts on deposit therein pursuant to clause (iii) above
or pursuant to any Principal Prepayment in Full, the Servicer shall (a) withdraw
such amounts from the Servicing Account and (b) deposit such amounts in the
Collection Account.
(c) The Servicer shall establish and maintain a Collection Account (the
"Collection Account") into which the Servicer shall deposit, as and when
required by paragraph (b) of this
58
Section 3.06, all amounts required to be deposited into the Collection Account
pursuant to that paragraph. The Collection Account shall be an Eligible Account
held for the benefit of the Certificateholders.
(d) The Servicer shall establish and maintain a Certificate Account into
which the Servicer shall deposit on a daily basis (i) within one Business Day of
deposit in the Collection Account (in the case of items (i) through (iii) below)
and (2) within one Business Day of receipt (in the case of all other items),
except as otherwise specified herein, the following payments and collections
received by it in respect of Mortgage Loans after the Cut-off Date (other than
in respect of principal and interest due on the Mortgage Loans by the Cut-off
Date) and the following amounts required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage Loans,
including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans, net
of the Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and Liquidation
Proceeds, other than proceeds to be applied to the restoration or repair
of the Mortgaged Property or released to the Mortgagor in accordance with
the Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Servicer pursuant to
Section 3.06(f) in connection with any losses on Permitted Investments;
(v) any amounts required to be deposited by the Servicer pursuant to
Sections 3.10 and 3.12;
(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section 4.01;
(viii) any other amounts required to be deposited under this
Agreement; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to a
buydown agreement, on each Due Date for the Mortgage Loan, in addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause funds to be
deposited into the Certificate Account in an amount required to cause an amount
of interest to be paid with respect to the Mortgage Loan equal to the amount of
interest that has accrued on the Mortgage Loan from the preceding Due Date at
the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees, if collected, need not be remitted by the Servicer. If the Servicer remits
any amount not required to be remitted, it may at any time withdraw that amount
from the Certificate Account, any provision in this Agreement to the contrary
notwithstanding. The withdrawal or direction may be accomplished by delivering
written notice of it to the Trustee or any other institution maintaining the
Certificate Account that describes the amounts deposited in error in the
Certificate Account. The Servicer shall maintain adequate records with respect
to all withdrawals made pursuant to this
59
Section 3.06. All funds deposited in the Certificate Account shall be held in
trust for the Certificateholders until withdrawn in accordance with Section
3.09.
(e) The Trustee shall establish and maintain the Distribution Account on
behalf of the Certificateholders. The Trustee shall, promptly upon receipt,
deposit in the Distribution Account and retain in the Distribution Account the
following:
(i) the aggregate amount remitted by the Servicer to the Trustee
pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments; and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it may at
any time direct the Trustee in writing to withdraw that amount from the
Distribution Account, any provision in this Agreement to the contrary
notwithstanding. The direction may be accomplished by delivering an Officer's
Certificate to the Trustee that describes the amounts deposited in error in the
Distribution Account. All funds deposited in the Distribution Account shall be
held by the Trustee in trust for the Certificateholders until disbursed in
accordance with this Agreement or withdrawn in accordance with Section 3.09. In
no event shall the Trustee incur liability for withdrawals from the Distribution
Account at the direction of the Servicer.
(f) Each institution at which the Certificate Account is maintained shall
invest the funds in such account as directed in writing by the Servicer in
Permitted Investments, which shall mature not later than the second Business Day
preceding the related Distribution Account Deposit Date (except that if the
Permitted Investment is an obligation of the institution that maintains the
account, then the Permitted Investment shall mature not later than the Business
Day preceding the Distribution Account Deposit Date) and which shall not be sold
or disposed of before its maturity. The funds in the Distribution Account shall
remain uninvested. All such Permitted Investments shall be made in the name of
the Trustee, for the benefit of the Certificateholders. All income realized from
any such investment of funds on deposit in the Certificate Account shall be for
the benefit of the Servicer as servicing compensation and shall be remitted to
it monthly as provided in this Agreement. The amount of any realized losses on
Permitted Investments in the Certificate Account shall promptly be deposited by
the Servicer in the Certificate Account. The Trustee shall not be liable for the
amount of any loss incurred in respect of any investment or lack of investment
of funds held in the Certificate Account and made in accordance with this
Section 3.06.
(g) [Reserved]
(h) The Servicer shall give notice to the Trustee, the Seller, each Rating
Agency and the Depositor of any proposed change of the location of the
Certificate Account not later than 30 days and not more than 45 days prior to
any change of this Agreement. The Trustee shall give notice to the Servicer, the
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Distribution Account not later than 30 days and not more than 45
days prior to any change of this Agreement.
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Section 3.07. Collection of Taxes, Assessments and Similar Items; Escrow
Accounts.
(a) To the extent required by the related Mortgage Note and not violative
of current law, the Servicer shall establish and maintain one or more accounts
(each, an "Escrow Account") and deposit and retain therein all collections from
the Mortgagors (or advances) for the payment of taxes, assessments, hazard
insurance premiums or comparable items for the account of the Mortgagors.
Nothing herein shall require the Servicer to compel a Mortgagor to establish an
Escrow Account in violation of applicable law.
(b) Withdrawals of amounts so collected from the Escrow Accounts may be
made only to effect timely payment of taxes, assessments, hazard insurance
premiums, condominium or PUD association dues, or comparable items, to reimburse
(without duplication) the Servicer out of related collections for any payments
made pursuant to Section 3.01 (with respect to taxes and assessments and
insurance premiums) and Section 3.10 (with respect to hazard insurance), to
refund to any Mortgagors any sums determined to be overages, to pay interest, if
required by law or the related Mortgage or Mortgage Note, to Mortgagors on
balances in the Escrow Account or to clear and terminate the Escrow Account at
the termination of this Agreement in accordance with Section 9.01. The Escrow
Accounts shall not be a part of the Trust Fund.
(c) The Servicer shall advance any payments referred to in Section 3.07(a)
that are not timely paid by the Mortgagors or advanced by the Servicer on the
date when the tax, premium or other cost for which such payment is intended is
due, but the Servicer shall be required so to advance only to the extent that
such advances, in the good faith judgment of the Servicer, will be recoverable
by the Servicer out of Insurance Proceeds, Liquidation Proceeds or otherwise.
Section 3.08. Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Servicer shall afford the Depositor and the Trustee reasonable access
to all records and documentation regarding the Mortgage Loans and all accounts,
insurance information and other matters relating to this Agreement, such access
being afforded without charge, but only upon reasonable request and during
normal business hours at the office designated by the Servicer.
Upon reasonable advance notice in writing, the Servicer will provide to
each Certificateholder or Certificate Owner that is a savings and loan
association, bank, or insurance company certain reports and reasonable access to
information and documentation regarding the Mortgage Loans sufficient to permit
the Certificateholder or Certificate Owner to comply with applicable regulations
of the OTS or other regulatory authorities with respect to investment in the
Certificates. The Servicer shall be entitled to be reimbursed by each such
Certificateholder or Certificate Owner for actual expenses incurred by the
Servicer in providing the reports and access.
Section 3.09. Permitted Withdrawals from the Certificate Account and the
Distribution Account.
(a) The Servicer may (and, in the case of clause (ix) below, shall) from
time to time make withdrawals from the Certificate Account for the following
purposes:
(i) to pay to the Servicer (to the extent not previously retained)
the servicing compensation to which it is entitled pursuant to Section
3.15, and to pay to the Servicer, as additional master servicing
compensation, earnings on or investment income with respect to funds in or
credited to the Certificate Account;
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(ii) to reimburse the Servicer or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement pursuant to
this subclause (ii) being limited to amounts received on the Mortgage
Loans in respect of which the Advance was made;
(iii) to reimburse the Servicer or successor Servicer for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the related
Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this clause
(a) with respect to any Mortgage Loan being limited to amounts received on
the Mortgage Loans that represent late recoveries of the payments for
which the advances were made pursuant to Section 3.01 or Section 3.07, (b)
unreimbursed Servicing Advances made in respect of a Mortgage Loan for
which such Servicing Advances are no recoverable from the Mortgagor and
(c) for unpaid Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect of such Mortgage Loan that has been purchased
pursuant to Section 2.02, 2.03, or 3.12, all amounts received thereon
after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the Depositor for
expenses incurred by any of them and reimbursable pursuant to Section
6.03;
(viii) to withdraw any amount deposited in the Certificate Account
and not required to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1) the
Available Funds and the Trustee Fee for the Distribution Date, to the
extent on deposit, and (2) the Prepayment Charges on deposit, and remit
such amount to the Trustee for deposit in the Distribution Account; and
(x) to clear and terminate the Certificate Account upon termination
of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, to justify any withdrawal from the Certificate
Account pursuant to subclauses (i), (ii), (iv), (v) and (vi). Before making any
withdrawal from the Certificate Account pursuant to subclause (iii), the
Servicer shall deliver to the Trustee an Officer's Certificate of a Servicing
Officer indicating the amount of any previous Advance determined by the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage Loans and
their respective portions of the Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution Account for
distributions to Certificateholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn the amount of any taxes that it
is authorized to withhold pursuant to the last paragraph of Section 8.11). In
addition, the Trustee may from time to time make withdrawals from the
Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related Distribution
Date;
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(ii) to withdraw and return to the Servicer any amount deposited in
the Distribution Account and not required to be deposited therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
Section 3.10. Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The Servicer shall maintain, for each Mortgage Loan, hazard insurance
with extended coverage in an amount that is at least equal to the lesser of
(i) the maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of the
Mortgage Loan and (z) an amount such that the proceeds of the policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming a
co-insurer.
Each policy of standard hazard insurance shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. Any amounts
collected under the policies (other than the amounts to be applied to the
restoration or repair of the related Mortgaged Property or amounts released to
the Mortgagor in accordance with the Servicer's normal servicing procedures)
shall be deposited in the Certificate Account. Any cost incurred in maintaining
any insurance shall not, for the purpose of calculating monthly distributions to
the Certificateholders or remittances to the Trustee for their benefit, be added
to the principal balance of the Mortgage Loan, notwithstanding that the Mortgage
Loan so permits. Such costs shall be recoverable by the Servicer out of late
payments by the related Mortgagor or out of Liquidation Proceeds to the extent
permitted by Section 3.09. No earthquake or other additional insurance is to be
required of any Mortgagor or maintained on property acquired in respect of a
Mortgage other than pursuant to any applicable laws and regulations in force
that require additional insurance. If the Mortgaged Property is located at the
time of origination of the Mortgage Loan in a federally designated special flood
hazard area and the area is participating in the national flood insurance
program, the Servicer shall maintain flood insurance for the Mortgage Loan. The
flood insurance shall be in an amount equal to the least of (i) the original
principal balance of the related Mortgage Loan, (ii) the replacement value of
the improvements that are part of the Mortgaged Property, and (iii) the maximum
amount of flood insurance available for the related Mortgaged Property under the
national flood insurance program.
If the Servicer obtains and maintains a blanket policy insuring against
hazard losses on all of the Mortgage Loans, it shall have satisfied its
obligations in the first sentence of this Section 3.10. The policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers. If the policy contains a
deductible clause and a policy complying with the first sentence of this Section
3.10 has not been maintained on the related Mortgaged Property, and if a loss
that would have been covered by the required policy occurs, the Servicer shall
deposit in the Certificate Account, without any right of reimbursement, the
amount not otherwise payable under the blanket policy because of the deductible
clause. In connection with its activities as Servicer of the Mortgage Loans, the
Servicer agrees to present, on behalf of itself, the Depositor, and the Trustee
for the benefit of the Certificateholders, claims under any blanket policy.
(b) The Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy of any loss that, but
for the actions of the Servicer, would have been
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covered thereunder. The Servicer shall not cancel or refuse to renew any Primary
Insurance Policy that is in effect at the date of the initial issuance of the
Certificates and is required to be kept in force hereunder unless the
replacement Primary Insurance Policy for the canceled or non-renewed policy is
maintained with a Qualified Insurer. The Servicer need not maintain any Primary
Insurance Policy if maintaining the Primary Insurance Policy is prohibited by
applicable law. The Servicer agrees, to the extent permitted by applicable law,
to effect the timely payment of the premiums on each Primary Insurance Policy,
and any costs not otherwise recoverable shall be recoverable by the Servicer
from the related liquidation proceeds.
In connection with its activities as Servicer of the Mortgage Loans, the
Servicer agrees to present, on behalf of itself, the Trustee and the
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take any reasonable action in accordance with the
Servicing Standard necessary to permit recovery under any Primary Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected by the
Servicer under any Primary Insurance Policies shall be deposited in the
Certificate Account or the Collection Account (as applicable).
Section 3.11. Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this Section 3.11, when any property
subject to a Mortgage has been conveyed by the Mortgagor, the Servicer shall to
the extent that it has knowledge of the conveyance and in accordance with the
Servicing Standard, enforce any due-on-sale clause contained in any Mortgage
Note or Mortgage, to the extent permitted under applicable law and governmental
regulations, but only to the extent that enforcement will not adversely affect
or jeopardize coverage under any Required Insurance Policy. Notwithstanding the
foregoing, the Servicer is not required to exercise these rights with respect to
a Mortgage Loan if the Person to whom the related Mortgaged Property has been
conveyed or is proposed to be conveyed satisfies the conditions contained in the
Mortgage Note and Mortgage related thereto and the consent of the mortgagee
under the Mortgage Note or Mortgage is not otherwise so required under the
Mortgage Note or Mortgage as a condition to the transfer.
If (i) the Servicer is prohibited by law from enforcing any due-on-sale
clause, (ii) coverage under any Required Insurance Policy would be adversely
affected, (iii) the Mortgage Note does not include a due-on-sale clause, or (iv)
nonenforcement is otherwise permitted hereunder, the Servicer is authorized,
subject to Section 3.11(b), to take or enter into an assumption and modification
agreement from or with the person to whom the property has been or is about to
be conveyed, pursuant to which the person becomes liable under the Mortgage Note
and, unless prohibited by applicable state law, the Mortgagor remains liable
thereon. The Mortgage Loan must continue to be covered (if so covered before the
Servicer enters into the agreement) by the applicable Required Insurance
Policies.
The Servicer, subject to Section 3.11(b), is also authorized with the
prior approval of the insurers under any Required Insurance Policies to enter
into a substitution of liability agreement with the Person, pursuant to which
the original Mortgagor is released from liability and the Person is substituted
as Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under this Section
3.11 because of any transfer or assumption that the Servicer reasonably believes
it is restricted by law from preventing, for any reason whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale clause to
the extent set forth in Section 3.11(a), in any case in which a Mortgaged
Property has been conveyed to a Person by a Mortgagor, and the Person is to
enter into an assumption agreement or modification agreement or supplement to
the Mortgage Note or Mortgage that requires the signature of the Trustee, or if
an instrument of release signed by the Trustee is required releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall prepare and
deliver to the Trustee for signature and shall direct the Trustee, in writing,
to execute the assumption agreement with the Person to whom the Mortgaged
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Property is to be conveyed, and the modification agreement or supplement to the
Mortgage Note or Mortgage or other instruments appropriate to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to the Person. In connection with any such assumption, no material term of the
Mortgage Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property must be
acceptable to the Servicer in accordance with its underwriting standards as then
in effect. Together with each substitution, assumption, or other agreement or
instrument delivered to the Trustee for execution by it, the Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer stating that the
requirements of this subsection have been met in connection with such Officer's
Certificate. The Servicer shall notify the Trustee that any substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of the substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of the Mortgage File to the same extent as all
other documents and instruments constituting a part of the Mortgage File. The
Servicer will retain any fee collected by it for entering into an assumption or
substitution of liability agreement as additional servicing compensation.
Section 3.12. Realization Upon Defaulted Mortgage Loans.
The Servicer shall use reasonable efforts in accordance with the Servicing
Standard to foreclose on or otherwise comparably convert the ownership of assets
securing such of the Mortgage Loans as come into and continue in default and as
to which no satisfactory arrangements can be made for collection of delinquent
payments. In connection with the foreclosure or other conversion, the Servicer
shall follow the Servicing Standard and shall follow the requirements of the
insurer under any Required Insurance Policy. The Servicer shall not be required
to expend its own funds in connection with any foreclosure or towards the
restoration of any property unless it determines (i) that the restoration or
foreclosure will increase the proceeds of liquidation of the Mortgage Loan after
reimbursement to itself of restoration expenses and (ii) that restoration
expenses will be recoverable to it through Liquidation Proceeds (respecting
which it shall have priority for purposes of withdrawals from the Certificate
Account). The Servicer shall be responsible for all other costs and expenses
incurred by it in any foreclosure proceedings. The Servicer is entitled to
reimbursement of such costs and expenses from the liquidation proceeds with
respect to the related Mortgaged Property, as provided in the definition of
Liquidation Proceeds. If the Servicer has knowledge that a Mortgaged Property
that the Servicer is contemplating acquiring in foreclosure or by deed in lieu
of foreclosure is located within a one mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or other
site with environmental or hazardous waste risks known to the Servicer, the
Servicer will, before acquiring the Mortgaged Property, consider the risks and
only take action in accordance with its established environmental review
procedures.
With respect to any REO Property, the deed or certificate of sale shall be
taken in the name of the Trustee for the benefit of the Certificateholders, or
its nominee, on behalf of the Certificateholders. The Trustee's name shall be
placed on the title to the REO Property solely as the Trustee hereunder and not
in its individual capacity. The Servicer shall ensure that the title to the REO
Property references the Pooling and Servicing Agreement and the Trustee's
capacity hereunder. Pursuant to its efforts to sell the REO Property, the
Servicer shall either itself or through an agent selected by the Servicer
protect and conserve the REO Property in accordance with the Servicing Standard.
The Servicer shall perform the tax reporting and withholding required by
sections 1445 and 6050J of the Code with respect to foreclosures and
abandonments, the tax reporting required by section 6050H of the Code with
respect to the receipt of mortgage interest from individuals and, if required by
section
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6050P of the Code with respect to the cancellation of indebtedness by certain
financial entities, by preparing any required tax and information returns, in
the form required.
If the Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively marketed for
sale, and the Servicer shall dispose of the Mortgaged Property as soon as
practicable, and in any case before the end of the third calendar year following
the calendar year in which the Trust Fund acquires the property. Notwithstanding
any other provision of this Agreement, no Mortgaged Property acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or otherwise
used for the production of income by or on behalf of the Trust Fund.
The decision of the Servicer to foreclose on a defaulted Mortgage Loan
shall be subject to a determination by the Servicer that the proceeds of the
foreclosure would exceed the costs and expenses of bringing a foreclosure
proceeding. The proceeds received from the maintenance of any REO Properties,
net of reimbursement to the Servicer for costs incurred (including any property
or other taxes) in connection with maintenance of the REO Properties and net of
unreimbursed Servicing Fees, Advances, and Servicing Advances, shall be applied
to the payment of principal of and interest on the related defaulted Mortgage
Loans (with interest accruing as though the Mortgage Loans were still current
and adjustments, if applicable, to the Mortgage Rate were being made in
accordance with the Mortgage Note) and all such proceeds shall be deemed, for
all purposes in this Agreement, to be payments on account of principal and
interest on the related Mortgage Notes and shall be deposited into the
Certificate Account. To the extent the net proceeds received during any calendar
month exceeds the amount attributable to amortizing principal and accrued
interest at the related Mortgage Rate on the related Mortgage Loan for the
calendar month, the excess shall be considered to be a partial prepayment of
principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
proceeds from an REO Property, will be applied in the following order of
priority: first, to reimburse the Servicer for any related unreimbursed
Servicing Advances or Servicing Fees or for any related unreimbursed Advances,
as applicable; second, to reimburse the Servicer, as applicable, and to
reimburse the Certificate Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Servicer pursuant to Section
3.09(a)(iii) that related to the Mortgage Loan; third, to accrued and unpaid
interest (to the extent no Advance has been made for such amount or any such
Advance has been reimbursed) on the Mortgage Loan or related REO Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the month in which
such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan. The Servicer will retain any Excess Proceeds
from the liquidation of a Liquidated Mortgage Loan as additional servicing
compensation pursuant to Section 3.15.
The Servicer may agree to a modification of any Mortgage Loan at the
request of the related Mortgagor if (i) the modification is in lieu of a
refinancing and the Mortgage Rate on the Mortgage Loan, as modified, is
approximately a prevailing market rate for newly-originated Mortgage Loans
having similar terms and (ii) the Servicer purchases that Mortgage Loan from the
Trust Fund as described below. Upon the agreement of the Servicer to modify a
Mortgage Loan in accordance with the preceding sentence, the Servicer shall
purchase that Mortgage Loan and all interest of the Trustee in that Mortgage
Loan shall automatically be deemed transferred and assigned to the Servicer and
all benefits and burdens of ownership thereof, including the right to accrued
interest thereon from the date of purchase and the risk of default thereon,
shall pass to the Servicer. The Servicer shall promptly deliver to the Trustee a
certification of a Servicing Officer to the effect that all requirements of this
paragraph have been satisfied with respect to a Mortgage Loan to be repurchased
pursuant to this paragraph.
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The Servicer shall deposit the Purchase Price for any Mortgage Loan
repurchased pursuant to Section 3.12 in the Certificate Account pursuant to
Section 3.06 within one Business Day after the purchase of the Mortgage Loan.
Upon receipt by the Trustee of written notification of any such deposit signed
by a Servicing Officer, the Trustee shall release to the Servicer the related
Mortgage File and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be necessary to vest in the
Servicer any Mortgage Loan previously transferred and assigned pursuant hereto.
The Servicer covenants and agrees to indemnify the Trust Fund against any
liability for any "prohibited transaction" taxes and any related interest,
additions, and penalties imposed on the Trust Fund established hereunder as a
result of any modification of a Mortgage Loan effected pursuant to this Section,
or any purchase of a Mortgage Loan by the Servicer in connection with a
modification (but such obligation shall not prevent the Servicer or any other
appropriate Person from contesting any such tax in appropriate proceedings and
shall not prevent the Servicer from withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Servicer shall
have no right of reimbursement for any amount paid pursuant to the foregoing
indemnification, except to the extent that the amount of any tax, interest, and
penalties, together with interest thereon, is refunded to the Trust Fund.
Section 3.13. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Servicer will immediately notify the Trustee by
delivering a Request for Release substantially in the form of Exhibit N. Upon
receipt of the request, the Trustee shall promptly release the related Mortgage
File to the Servicer, and the Trustee shall at the Servicer's direction execute
and deliver to the Servicer the request for reconveyance, deed of reconveyance,
or release or satisfaction of mortgage or such instrument releasing the lien of
the Mortgage in each case provided by the Servicer, together with the Mortgage
Note with written evidence of cancellation thereon. The Servicer is authorized
to cause the removal from the registration on the MERS System of such Mortgage
and to execute and deliver, on behalf of the Trustee and the Certificateholders
or any of them, any and all instruments of satisfaction or cancellation or of
partial or full release. Expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the related
Mortgagor.
From time to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose collection under
any policy of flood insurance, any fidelity bond or errors or omissions policy,
or for the purposes of effecting a partial release of any Mortgaged Property
from the lien of the Mortgage or the making of any corrections to the Mortgage
Note or the Mortgage or any of the other documents included in the Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request for Release
in the form of Exhibit M signed by a Servicing Officer, release the Mortgage
File to the Servicer or its designee. Subject to the further limitations set
forth below, the Servicer shall cause the Mortgage File or documents so released
to be returned to the Trustee when the need therefor by the Servicer no longer
exists, unless the Mortgage Loan is liquidated and the proceeds thereof are
deposited in the Certificate Account, in which case the Servicer shall deliver
to the Trustee a Request for Release in the form of Exhibit N, signed by a
Servicing Officer.
If the Servicer at any time seeks to initiate a foreclosure proceeding in
respect of any Mortgaged Property as authorized by this Agreement, the Servicer
shall deliver to the Trustee, for signature, as appropriate, any court
pleadings, requests for trustee's sale, or other documents necessary to
effectuate such foreclosure or any legal action brought to obtain judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to obtain a
deficiency judgment or to enforce any other remedies or rights provided by the
Mortgage Note or the Mortgage or otherwise available at law or in equity.
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Section 3.14. Documents, Records and Funds in Possession of the Servicer
to be Held for the Trustee.
The Servicer shall account fully to the Trustee for any funds it receives
or otherwise collects as Liquidation Proceeds or Insurance Proceeds in respect
of any Mortgage Loan. All Mortgage Files and funds collected or held by, or
under the control of, the Servicer in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds, including any funds on deposit in the Certificate Account, shall be
held by the Servicer for and on behalf of the Trustee and shall be and remain
the sole and exclusive property of the Trustee, subject to the applicable
provisions of this Agreement. The Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Certificate Account, the Collection Account, Distribution Account, or any Escrow
Account, or any funds that otherwise are or may become due or payable to the
Trustee for the benefit of the Certificateholders, to any claim, lien, security
interest, judgment, levy, writ of attachment, or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Mortgage File
or any funds collected on, or in connection with, a Mortgage Loan, except,
however, that the Servicer shall be entitled to set off against and deduct from
any such funds any amounts that are properly due and payable to the Servicer
under this Agreement.
Section 3.15. Servicing Compensation.
As compensation for its activities hereunder, the Servicer may retain or
withdraw from the Servicing Account, the Collection Account, or the Certificate
Account the Servicing Fee for each Mortgage Loan for the related Distribution
Date. Notwithstanding the foregoing, the Servicing Fee payable to the Servicer
shall be reduced by the lesser of the aggregate of the Prepayment Interest
Shortfalls with respect to the Distribution Date and the aggregate Compensating
Interest for the Distribution Date.
The Servicer may retain or withdraw from the Servicing Account, the
Collection Account, or the Certificate Account the Servicing Fee for each
Mortgage Loan for the related Distribution Date. If the Servicer directly
services a Mortgage Loan, the Servicer may retain the Servicing Fee for its own
account as compensation for performing services. Additional servicing
compensation in the form of Excess Proceeds, Prepayment Interest Excess,
assumption fees, late payment charges and all income net of any losses realized
from Permitted Investments shall be retained by the Servicer to the extent not
required to be deposited in the Certificate Account pursuant to Section 3.06.
The Servicer shall be required to pay all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any premiums for
hazard insurance, and any Primary Insurance Policy and maintenance of the other
forms of insurance coverage required by this Agreement) and shall not be
entitled to reimbursement therefor except as specifically provided in this
Agreement.
Section 3.16. Access to Certain Documentation.
The Servicer shall provide to the OTS and the FDIC and to comparable
regulatory authorities supervising Holders of Certificates and Certificate
Owners and the examiners and supervisory agents of the OTS, the FDIC, and such
other authorities, access to the documentation regarding the Mortgage Loans
required by applicable regulations of the OTS and the FDIC. Access shall be
afforded without charge, but only upon reasonable prior written request and
during normal business hours at the offices designated by the Servicer. Nothing
in this Section 3.16 shall limit the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the Servicer to provide access as provided in this Section
3.16 as a result of such obligation shall not constitute a breach of this
Section 3.16.
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Section 3.17. Annual Statement as to Compliance.
(a) By March 1 of each year, commencing with 2007, the Servicer shall
deliver to the Trustee via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) and the
Depositor an Officer's Certificate signed by two Servicing Officers stating, as
to each signer thereof, that (i) a review of the activities of the Servicer
during the preceding calendar year (or applicable portion thereof) and of the
performance of the Servicer under this Agreement has been made under such
officer's supervision, and (ii) to the best of such officer's knowledge, based
on the review, the Servicer has fulfilled all its obligations under this
Agreement, in all material respects throughout the year (or applicable portion
thereof), or, if there has been a failure to fulfill any obligation in any
material respect, specifying each failure known to the officer and the nature
and status thereof.
(b) [Reserved].
(c) The Trustee shall forward a copy of each such statement to each Rating
Agency. Copies of such statement shall be provided by the Trustee to any
Certificateholder or Certificate Owner upon request at the Servicer's expense,
provided such statement is delivered by the Servicer to the Trustee.
Section 3.18. Errors and Omissions Insurance; Fidelity Bonds.
The Servicer shall obtain and maintain in force (a) policies of insurance
covering errors and omissions in the performance of its obligations as Servicer
hereunder and (b) a fidelity bond covering its officers, employees, and agents.
Each policy and bond shall, together, comply with the requirements from time to
time of FNMA or FHLMC for persons performing servicing for mortgage loans
purchased by FNMA or FHLMC. If any policy or bond ceases to be in effect, the
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the above requirements as of the date of the replacement.
Section 3.19. The Swap Contracts.
The Depositor shall cause the Swap Trustee to enter into two interest rate
swap transactions evidenced by the Class A-1 Swap Contract and the Certificate
Swap Contract. The Swap Trustee's rights to receive certain proceeds of the Swap
Contracts shall be rights of the Swap Trustee as Swap Trustee under this
Agreement, shall be an asset of the Swap Trust and shall not be an asset of the
Trust Fund nor of any REMIC. The Swap Trustee shall deposit any amounts received
from time to time from the Swap Counterparty with respect to the Class A-1 Swap
Contract into the Class A-1 Swap Account and any amounts received from time to
time from the Swap Counterparty with respect to the Certificate Swap Contract
into the Certificate Swap Account. The Servicer shall deposit any amounts
received on behalf of the Swap Trustee from time to time (i) with respect to the
Certificate Swap Contract into the Certificate Swap Account and (ii) with
respect to the Class A-1 Swap Contract into the Class A-1 Swap Account.
On the Business Day preceding each Distribution Date, the Swap Trustee
shall notify the Trustee of any amounts distributable to the Swap Certificates
pursuant to Section 4.02(h)(iii) through (viii) that will remain unpaid
following all distributions to be made on such Distribution Date pursuant to
Section 4.02(a) through (c).
Upon the Swap Trustee obtaining actual knowledge of the rating of the Swap
Counterparty falling below the Approved Rating Thresholds (as defined in the
Swap Contract), the Swap Trustee shall negotiate an ISDA Credit Support Annex
with the Swap Counterparty that meets the terms of the Swap Contract. If an ISDA
Credit Support Annex is negotiated, the Swap Trustee shall demand payment of the
Delivery Amount (as defined in the ISDA Credit Support Annex). In addition, if
an ISDA Credit Support
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Annex is negotiated, the Swap Trustee shall set up an account in accordance with
Section 4.08 to hold cash or other eligible investments pledged under such ISDA
Credit Support Annex. Any cash or other eligible investments pledged under an
ISDA Credit Support Annex shall not be part of the Swap Account or the
Distribution Account unless they are applied in accordance with such ISDA Credit
Support Annex to make a payment due to the Swap Trustee pursuant to the Swap
Contracts.
Upon the Swap Trustee obtaining actual knowledge of an Event of Default
(as defined in the Swap Contract) or Termination Event (as defined in a Swap
Contract) for which the Swap Trustee has the right to designate an Early
Termination Date (as defined in a Swap Contract), the Swap Trustee shall act at
the written direction of the Depositor as to whether to designate an Early
Termination Date; provided, however, that the Swap Trustee shall provide written
notice to each Rating Agency following the Event of Default or Termination
Event. Upon the termination of a Swap Contract under the circumstances
contemplated by this Section 3.19, the Swap Trustee shall use its reasonable
best efforts to enforce its rights as may be permitted by the terms of such Swap
Contract and consistent with the terms hereof.
In the event that the Swap Counterparty in respect of a replacement swap
contract pays any upfront amount to the Swap Trustee, any portion of such
upfront amount paid by a Swap Counterparty in respect of a replacement swap
contract that is remitted to the Swap Trustee shall be available, to the extent
that Interest Funds and the Principal Remittance Amount were used on prior
Distribution Dates to cover any Swap Termination Payments due to the Swap
Counterparty under the original Swap Contract, for distribution on each
succeeding Distribution Date in the manner described in Section 4.02(d).
Any portion of any Net Swap Payment or Swap Termination Payment payable by
the Swap Counterparty and not remitted to the Swap Trustee with respect to any
Distribution Date will be remitted to Deutsche Bank Securities Inc. and will not
be available to make distributions in respect of any Class of Certificates.
The Swap Counterparty shall be an express third party beneficiary of this
Agreement for the purpose of enforcing the provisions hereof to the extent of
the Swap Counterparty's rights explicitly specified herein as if a party hereto.
Section 3.20. Notification of Adjustments.
On each Adjustment Date, the Servicer shall make interest rate adjustments
for each Mortgage Loan in compliance with the requirements of the related
Mortgage and Mortgage Note and applicable regulations. The Servicer shall
execute and deliver the notices required by each Mortgage and Mortgage Note and
applicable regulations regarding interest rate adjustments. The Servicer also
shall provide timely notification to the Trustee of all applicable data and
information regarding such interest rate adjustments and the Servicer's methods
of implementing such interest rate adjustments and Scheduled Payment
adjustments. Upon the discovery by the Servicer or the Trustee that the Servicer
has failed to adjust or has incorrectly adjusted a Mortgage Rate or a monthly
payment pursuant to the terms of the related Mortgage Note and Mortgage, the
Servicer shall immediately deposit in the Certificate Account from its own funds
the amount of any loss caused thereby without reimbursement therefor; provided,
however, the Servicer shall not be liable with respect to any interest rate
adjustments made by any servicer prior to the Servicer.
Section 3.21. Prepayment Charges.
The Servicer will not waive any part of any Prepayment Charge unless the
waiver relates to a default or a reasonably foreseeable default, the Prepayment
Charge would cause an undue hardship to the related borrower, the Mortgaged
Property is sold by the Mortgagor, the collection of any Prepayment
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Charge would violate any relevant law or regulation or the waiving of the
Prepayment Charge would otherwise benefit the Trust Fund and it is expected that
the waiver would maximize recovery of total proceeds taking into account the
value of the Prepayment Charge and related Mortgage Loan and doing so is
standard and customary in servicing similar Mortgage Loans (including any waiver
of a Prepayment Charge in connection with a refinancing of a Mortgage Loan that
is related to a default or a reasonably foreseeable default). The Servicer will
not waive a Prepayment Charge in connection with a refinancing of a Mortgage
Loan that is not related to a default or a reasonably foreseeable default.
If a Prepayment Charge is waived other than as permitted by the prior
sentence, then the Servicer is required to pay the amount of such waived
Prepayment Charge, for the benefit of the Holders of the Class P Certificates,
by depositing such amount into the Distribution Account from its own funds,
without any right of reimbursement therefor, together with and at the time that
the amount prepaid on the related Mortgage Loan is required to be deposited into
the Distribution Account.
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ARTICLE FOUR
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
Section 4.01. Advances.
(a) The Servicer shall determine on or before each Servicer Advance Date
whether it is required to make an Advance pursuant to the definition thereof. If
the Servicer determines it is required to make an Advance, it shall, on or
before the Servicer Advance Date, either (i) deposit into the Certificate
Account an amount equal to the Advance or (ii) make an appropriate entry in its
records relating to the Certificate Account that any Amount Held for Future
Distribution has been used by the Servicer in discharge of its obligation to
make any such Advance. Any funds so applied shall be replaced by the Servicer by
deposit in the Certificate Account no later than the close of business on the
next Servicer Advance Date. The Servicer shall be entitled to be reimbursed from
the Certificate Account for all Advances of its own funds made pursuant to this
Section 4.01 as provided in Section 3.09. The obligation to make Advances with
respect to any Mortgage Loan shall continue if such Mortgage Loan has been
foreclosed or otherwise terminated and the Mortgaged Property has not been
liquidated. The Servicer shall inform the Trustee of the amount of the Advance
to be made on each Servicer Advance Date no later than the second Business Day
before the related Distribution Date.
(b) If the Servicer determines that it will be unable to comply with its
obligation to make the Advances as and when described in the second sentence of
Section 4.01(a), it shall use its best efforts to give written notice thereof to
the Trustee (each such notice an "Advance Notice"; and such notice may be given
by telecopy), not later than 3:00 P.M., New York time, on the Business Day
immediately preceding the related Servicer Advance Date, specifying the amount
that it will be unable to deposit (each such amount an "Advance Deficiency") and
certifying that such Advance Deficiency constitutes an Advance hereunder and is
not a Nonrecoverable Advance. If the Trustee receives a Trustee Advance Notice
on or before 3:00 P.M., New York time on a Servicer Advance Date, the Trustee is
entitled to immediately terminate the Servicer under Section 7.01, and shall,
not later than 3:00 P.M., New York time, on the related Distribution Date,
deposit in the Distribution Account an amount equal to the Advance Deficiency
identified in such Trustee Advance Notice unless it is prohibited from so doing
by applicable law. Notwithstanding the foregoing, the Trustee shall not be
required to make such deposit if the Trustee shall have received written
notification from the Servicer that the Servicer has deposited or caused to be
deposited in the Certificate Account an amount equal to such Advance Deficiency
by 3:00 P.M. New York time on the related Distribution Date. If the Trustee has
not terminated the Servicer, the Servicer shall reimburse the Trustee for the
amount of any Advance (including interest at the Prime Rate on the day of such
reimbursement published in The Wall Street Journal) on such amount, made by the
Trustee pursuant to this Section 4.01(b) not later than the second day following
the related Servicer Advance Date. In the event that the Servicer does not
reimburse the Trustee in accordance with the requirements of the preceding
sentence, the Trustee shall immediately (a) terminate all of the rights and
obligations of the Servicer under this Agreement in accordance with Section 7.01
and (b) subject to the limitations set forth in Section 3.05, assume all of the
rights and obligations of the Servicer hereunder.
(c) The Servicer shall, not later than the close of business on the
Business Day immediately preceding each Servicer Advance Date, deliver to the
Trustee a report (in form and substance reasonably satisfactory to the Trustee)
that indicates (i) the Mortgage Loans with respect to which the Servicer has
determined that the related Scheduled Payments should be advanced and (ii) the
amount of the related Scheduled Payments. The Servicer shall deliver to the
Trustee on the related Servicer Advance Date an Officer's Certificate of a
Servicing Officer indicating the amount of any proposed Advance determined by
the Servicer to be a Nonrecoverable Advance.
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Section 4.02. Priorities of Distribution.
(a) Distributions of Interest Funds. On each Distribution Date, the
Interest Funds for such Distribution Date shall be allocated by the Trustee from
the Distribution Account in the following order of priority, until such Interest
Funds have been fully distributed:
(i) concurrently, to the Class A-1 Swap Account and the Certificate
Swap Account, as applicable, the amount of any Net Swap Payment due to the
Swap Counterparty and the amount of any Swap Termination Payment due to
the Swap Counterparty (other than a Swap Termination Payment due to a Swap
Counterparty Trigger Event) under either Swap Contract with respect to
such Distribution Date, pro rata, based on the amounts of any such
payments; (including amounts remaining unpaid from previous Distribution
Dates);
(ii) concurrently to each Class of Senior Certificates, the Current
Interest and Interest Carry Forward Amount for each of those Classes and
that Distribution Date, pro rata, based on the amount of interest each
Class is entitled to receive on that Distribution Date except, in the case
of the Class A-1 Certificates, the Current Interest and Interest Carry
Forward Amount paid pursuant to this clause (ii) will be calculated based
on the lesser of the Pass-Through Rate of the Class A-1 Certificates and
the Weighted Average Adjusted Net Mortgage Rate; and
(iii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and
Class M-11 Certificates, in that order, the Current Interest for each such
Class and that Distribution Date; and
(iv) for application as part of the Excess Cashflow for that
Distribution Date, pursuant to Section 4.02(c) below, any such Interest
Funds remaining undistributed for that Distribution Date.
(b) Distributions of Principal Distribution Amount. On each Distribution
Date, an amount up to the Principal Distribution Amount for that Distribution
Date shall be allocated by the Trustee from the Distribution Account in the
following priority:
(i) For each Distribution Date prior to the Stepdown Date or on
which a Trigger Event is in effect, in the following priority:
(A) to the Class A-R Certificates, until its Class Certificate
Balance is reduced to zero;
(B) concurrently, to the Classes of Senior Certificates, pro
rata, until their respective Class Certificate Balances are reduced
to zero;
(C) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class M-10 and Class M-11 Certificates, in that order, until their
respective Class Certificate Balances are reduced to zero; and
(D) any remainder as part of the Excess Cashflow to be
allocated as described under Section 4.02(c) below.
(ii) For each Distribution Date on or after the Stepdown Date and so
long as a Trigger Event is not in effect, from the Principal Distribution
Amount, in the following priority:
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(A) the Senior Principal Distribution Amount, concurrently, to
the Class A-1 and Class A-2 Certificates, pro rata, until their
respective Class Certificate Balances are reduced to zero;
(B) to the Class M-1 Certificates, the Class M-1 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(C) to the Class M-2 Certificates, the Class M-2 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(D) to the Class M-3 Certificates, the Class M-3 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(E) to the Class M-4 Certificates, the Class M-4 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(F) to the Class M-5 Certificates, the Class M-5 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(G) to the Class M-6 Certificates, the Class M-6 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(H) to the Class M-7 Certificates, the Class M-7 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(I) to the Class M-8 Certificates, the Class M-8 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(J) to the Class M-9 Certificates, the Class M-9 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(K) to the Class M-10 Certificates, the Class M-10 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero;
(L) to the Class M-11 Certificates, the Class M-11 Principal
Distribution Amount for that Distribution Date, until its Class
Certificate Balance is reduced to zero; and
(M) any remainder as part of the Excess Cashflow to be
allocated as described under 4.02(c) below.
(c) Distributions of Excess Cashflow. With respect to any Distribution
Date, any Excess Cashflow will be paid to the Classes of Certificates in the
following order of priority, in each case to the extent of remaining Excess
Cashflow:
(i) to the classes of Offered Certificates then entitled to receive
distributions in respect of principal, in an amount equal to the Extra
Principal Distribution Amount for that Distribution Date, distributable to
those Classes as part of the Principal Distribution Amount pursuant to
Section 4.02(b) of this Agreement;
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(ii) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and
Class M-11 Certificates, in that order, in an amount equal to any Interest
Carry Forward Amount for each such Class;
(iii) sequentially, to the Class A-1 and Class A-2 Certificates, in
that order, in an amount equal to the Unpaid Realized Loss Amount for each
such Class;
(iv) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and
Class M-11 Certificates, in that order in an amount equal to the Unpaid
Realized Loss Amount for each such Class;
(v) concurrently, to the Class A-1 and Class A-2 Certificates, pro
rata, based on their entitlements the Net Rate Carryover for each such
Class;
(vi) sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and
Class M-11 Certificates, in that order, to pay any Net Rate Carryover for
each such Class;
(vii) to the Class A-1 Swap Account and the Certificate Swap
Account, as applicable, an amount equal to any Swap Termination Payment
due to the Swap Counterparty under either of the Swap Contracts as a
result of a Swap Counterparty Trigger Event;
(viii) to the Class C Certificateholders, an amount up to the Class
C Distributable Amount for such Distribution Date; and
(ix) to the Class A-R Certificates.
(d) (i) On each Distribution Date on or prior to the Certificate Swap
Contract Termination Date, following the deposits to the Certificate Swap
Account pursuant to 4.02(a)(i) and Section 4.08 and the distributions described
under Section 4.02(a), (b) and (c), the Swap Trustee shall distribute amounts on
deposit in the Certificate Swap Account in the following amounts and order of
priority:
(A) concurrently, to the Class A-1 and Class A-2 Certificates,
any remaining unpaid Current Interest and Interest Carry Forward
Amount, pro rata based on their respective entitlements;
(B) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class M-10 and Class M-11 Certificates, in that order, in an amount
equal to any remaining unpaid Current Interest and Interest Carry
Forward Amount for each such Class;
(C) to the Class or Classes of Certificates then entitled to
receive distributions in respect of principal, in an aggregate
amount equal to the lesser of (x) the amount of any
Overcollateralization Deficiency Amount and (y) the aggregate amount
of Realized Losses allocated to the Certificates;
(D) sequentially, to the Class A-1 and Class A-2 Certificates,
in that order, in an amount equal to the Unpaid Realized Loss Amount
for each such Class;
(E) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class M-10 and Class M-11
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Certificates, in that order, in each case in an amount equal to the
remaining Unpaid Realized Loss Amount for each such Class;
(F) concurrently, to the Class A-1 and Class A-2 Certificates,
to the extent needed to pay any remaining Net Rate Carryover for
each such Class, pro rata, based on the amount of such remaining Net
Rate Carryover; and
(G) sequentially, to the Class X-0, Xxxxx X-0, Class M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9,
Class M-10 and Class M-11 Certificates, in that order, to the extent
needed to pay any remaining Net Rate Carryover for each such Class.
(ii) on each Distribution Date on or prior to the Class A-1 Swap
Contract Termination Date, following the deposits to the Class A-1 Swap
Account pursuant to 4.02(a)(i) and Section 4.08 and the distributions
described under Section 4.02(c) and 4.02(d)(i), the Swap Trustee shall
distribute amounts on deposit in the Class A-1 Swap Account to the Holders
of the Class A-1 Certificates any remaining Current Interest.
(e) To the extent that a Class of LIBOR Certificates receives interest in
excess of the Net Rate Cap (calculated for this purpose without regard to Swap
Termination Payments), such interest shall be deemed to have been paid to the
Carryover Reserve Fund and then paid by the Carryover Reserve Fund to those
Certificateholders. For purposes of the Code, amounts deemed deposited in the
Carryover Reserve Fund shall be deemed to have first been distributed to the
Class C Certificates. To the extent that a Class of LIBOR Certificates receives
interest in excess of the Net Rate Cap (calculated for this purpose without
regard to Swap Termination Payments) and such interest is paid pursuant to
Section 4.02(d), such interest shall be deemed to have been paid to the Swap
Account and then paid by the Swap Account to those Certificateholders.
(f) [Reserved].
(g) On each Distribution Date, all amounts representing Hard Prepayment
Charges and Soft Prepayment Charges received during the related Prepayment
Period shall be paid to the Class P (including amounts deposited in connection
with the full or partial waiver of such Prepayment Charge Amount pursuant to
Section 3.21). On the Distribution Date immediately following the expiration of
the latest Prepayment Charge Period of the Mortgage Loans, the $100 held in
trust for the Class P Certificates will be distributed to the holders of the
Class P Certificates.
(h) Application of Applied Realized Loss Amounts. On each Distribution
Date, the Trustee shall allocate the Applied Realized Loss Amount to reduce the
Class Certificate Balances of the Subordinated Certificates, sequentially, to
the Class M-11, Class M-10, Class M-9, Class M-8, Class M-7, Class M-6, Class
M-5, Class M-4, Class M-3, Class M-2 and Class M-1 Certificates, in that order,
until their respective Class Certificate Balances are reduced to zero. After the
Class Certificate Balance of each Class of Subordinated Certificates has been
reduced to zero, if the aggregate Class Certificate Balance of the Senior
Certificates exceeds the aggregate Stated Principal Balance of the Mortgage
Loans, the amount of that excess will be allocated to reduce the Class
Certificate Balances of Senior Certificates, first to the Class A-2
Certificates, and second to the Class A-1 Certificates, in that order, until
their respective Class Certificate Balances are reduced to zero.
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(i) Application of Subsequent Recoveries. If Subsequent Recoveries have
been received with respect to a Liquidated Mortgage Loan, the amount of such
Subsequent Recoveries will be applied, first, sequentially, to the Class A-1 and
Class A-2 Certificates, in that order, to increase the Class Certificate Balance
of those Classes in an amount up to the amount of Unpaid Realized Loss Amounts
on each such Class, and, second, sequentially, in the order of payment priority,
to increase the Class Certificate Balance of each Class of Subordinated
Certificates to which Realized Losses have been allocated, but in each case by
not more than the amount of Unpaid Realized Loss Amounts on that Class of
Certificates. Holders of such Certificates will not be entitled to any payment
in respect of Current Interest on the amount of such increases for any Interest
Accrual Period preceding the Distribution Date on which such increase occurs.
Any such increases shall be applied pro rata to the Certificate Balance of each
Certificate of such Class.
Section 4.03. [Reserved].
Section 4.04. [Reserved].
Section 4.05. Monthly Statements to Certificateholders.
(a) Not later than each Distribution Date, the Trustee shall prepare and
make available on its website at xxxxx://xxx.xxx.xx.xxx/xxxx to each
Certificateholder, the Servicer and the Depositor a statement for the related
distribution of:
(i) the applicable Record Dates, Interest Accrual Periods and
Determination Dates for calculating distributions for such Distribution
Date;
(ii) the amount of funds received from the Servicer for such
Distribution Date separately identifying amounts received in respect of
the Mortgage Loans and the amount of Advances included in the distribution
on the Distribution Date;
(iii) the Servicing Fee and Trustee Fee for such Distribution Date;
(iv) the aggregate amount of expenses paid from amounts on deposit
in (x) the Certificate Account and (y) the Distribution Account;
(v) the amount of the distribution allocable to principal,
separately identifying the aggregate amount of any Principal Prepayments
and Liquidation Proceeds included therein;
(vi) the amount of the distribution allocable to interest, any Class
Unpaid Interest Amounts included in the distribution and any remaining
Class Unpaid Interest Amounts after giving effect to the distribution;
(vii) if the distribution to the Holders of any Class of
Certificates is less than the full amount that would be distributable to
them if sufficient funds were available, the amount of the shortfall and
the allocation of the shortfall between principal and interest;
(viii) the aggregate amount of Realized Losses and in the aggregate
incurred and Subsequent Recoveries, if any, received during the preceding
calendar month and aggregate Realized Losses through such Distribution
Date;
(ix) the Class Certificate Balance of each Class of Certificates
before and after giving effect to the distribution of principal on the
Distribution Date;
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(x) the Pass-Through Rate for each Class of Certificates with
respect to the Distribution Date;
(xi) the number of Mortgage Loans and the Pool Stated Principal
Balance as the first day of the related Due Period and the last day of the
related Due Period;
(xii) as of the last day of the related Due Period:
(A) the weighted average mortgage rate of the Mortgage Loans,
and
(B) the weighted average remaining term to maturity of the
Mortgage Loans;
(xiii) the number and aggregate outstanding balance of the Mortgage
Loans in each Loan Group 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;
(xiv) for each of the preceding 12 calendar months, or all calendar
months since the Cut-off Date, whichever is less, the aggregate dollar
amount of the Scheduled Payments (A) due on all Outstanding Mortgage Loans
on the Due Date in such month and (B) delinquent sixty (60) days or more
(determined in the same manner as for determining Scheduled Payment
delinquencies that result in a Mortgage Loan being a 60+ Day Delinquent
Loan) on the Due Date in such month;
(xv) with respect to any Mortgage Loan that became an REO Property
during the preceding calendar month, the loan number and Stated Principal
Balance of the Mortgage Loan as of the close of business on the
Determination Date preceding the Distribution Date;
(xvi) the total number and principal balance of any REO Properties
as of the close of business on the Determination Date preceding the
Distribution Date;
(xvii) the aggregate amount of Principal Prepayments received during
the related Prepayment Period and the number of Mortgage Loans subject to
such Principal Prepayments;
(xviii) the aggregate amount of Advances reimbursed during the
related Due Period, the general source of funds for such reimbursements
and the aggregate amount of Advances outstanding as of the close of
business on the Distribution Date;
(xix) the aggregate amount of Servicing Advances reimbursed during
the related Due Period, the general source of funds for such
reimbursements and the aggregate amount of Servicing Advances outstanding
as of the close of business on the Distribution Date;
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(xx) the aggregate number and outstanding principal balance of
Mortgage Loans repurchased during the related Due Period due to material
breaches of representations and warranties regarding such Mortgage Loans;
(xxi) each Senior Prepayment Percentage and Subordinated Prepayment
Percentage for such Distribution Date;
(xxii) each Senior Percentage and Subordinated Percentage for such
Distribution Date;
(xxiii) the Special Hazard Loss Coverage Amount, the Fraud Loss
Coverage Amount and the Bankruptcy Loss Coverage Amount, in each case as
of the related Determination Date;
(xxiv) with respect to the second Distribution Date, the number and
aggregate balance of any Delayed Delivery Mortgage Loans not delivered
within the time periods specified in the definition of Delayed Delivery
Mortgage Loans; and
(xxv) Prepayment Charges collected, waived, and paid by the
Servicer.
The Trustee's responsibility for disbursing the above information to the
Certificateholders is limited to the availability, timeliness and accuracy of
the information derived from the Servicer.
By each Determination Date the Servicer shall provide to the Trustee in
electronic form the information needed to determine the distributions to be made
pursuant to Section 4.02 and any other information on which the Servicer and the
Trustee mutually agree.
(b) On or before the fifth Business Day following the end of each
Prepayment Period (but in no event later than the third Business Day prior to
the related Distribution Date), the Servicer shall deliver to the Trustee (which
delivery may be by electronic data transmission) a report in substantially the
form set forth as Schedule IV.
(c) Within a reasonable period of time after the end of each calendar
year, the Trustee shall cause to be furnished to each Person who at any time
during the calendar year was a Certificateholder, a statement containing the
information set forth in clauses (a)(v) and (a)(vi) of this Section 4.06
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of the
Code as from time to time in effect.
Section 4.06. Carryover Reserve Fund.
(a) On the Closing Date, the Trustee shall establish and maintain in its
name, in trust for the benefit of the Holders of the LIBOR Certificates, a
Carryover Reserve Fund. The Carryover Reserve Fund shall be an Eligible Account,
and funds on deposit therein shall be held separate and apart from, and shall
not be commingled with, any other moneys, including, without limitation, other
moneys of the Trustee held pursuant to this Agreement. The Carryover Reserve
Fund shall not be an asset of any REMIC established by this Agreement.
(b) The Trustee shall withdraw funds from the Carryover Reserve Fund for
distribution to the LIBOR Certificates and the Class C Certificates in the
manner specified in Section 4.02(e) (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to retain pursuant
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to the second to last paragraph of Section 8.11). In addition, the Trustee may
from time to time make withdrawals from the Carryover Reserve Fund for the
following purposes:
(i) to withdraw any amount deposited in the Carryover Reserve Fund
and not required to be deposited therein; and
(ii) clear and terminate the Carryover Reserve Fund upon the
termination of this Agreement pursuant to Section 9.01.
(c) Funds in the Carryover Reserve Fund shall not be invested. The Class C
Certificates shall evidence ownership of the Carryover Reserve Fund for federal
income tax purposes.
(d) Upon termination of the Trust Fund any amounts remaining in the
Carryover Reserve Fund shall be distributed to Deutsche Bank Securities Inc. and
will not be available to cover any Net Rate Carryover on subsequent Distribution
Dates.
Section 4.07. Determination of Pass-Through Rates for LIBOR Certificates.
On each LIBOR Determination Date so long as the LIBOR Certificates are
outstanding, the Trustee will determine LIBOR on the basis of the British
Bankers' Association ("BBA") "Interest Settlement Rate" for one-month deposits
in U.S. dollars as found on Moneyline Telerate Page 3750 as of 11:00 a.m. London
time on each LIBOR Determination Date.
(a) If LIBOR cannot be determined as provided in the first paragraph of
this Section 4.08, the Trustee shall either (i) request each Reference Bank to
inform the Trustee of the quotation offered by its principal London office for
making one-month United States dollar deposits in leading banks in the London
interbank market, as of 11:00 a.m. (London time) on such LIBOR Determination
Date or (ii) in lieu of making any such request, rely on such Reference Bank
quotations that appear at such time on the Reuters Screen LIBO Page (as defined
in the International Swap Dealers Association Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986 Edition), to the extent available.
(b) LIBOR for the next Interest Accrual Period for a Class of LIBOR
Certificates will be established by the Trustee on each LIBOR Determination Date
as follows:
(i) If on any LIBOR Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the next Interest Accrual
Period for a Class of LIBOR Certificates shall be the arithmetic mean of
such offered quotations (rounding such arithmetic mean upwards if
necessary to the nearest whole multiple of 1/32%).
(ii) If on any LIBOR Determination Date only one or none of the
Reference Banks provides such offered quotations, LIBOR for the next
Interest Accrual Period for a Class of LIBOR Certificates shall be
whichever is the higher of (i) LIBOR as determined on the previous LIBOR
Determination Date or (ii) the Reserve Interest Rate. The "Reserve
Interest Rate" shall be the rate per annum which the Trustee determines to
be either (i) the arithmetic mean (rounded upwards if necessary to the
nearest whole multiple of 1/32%) of the one-month United States dollar
lending rates that New York City banks selected by the Trustee are
quoting, on the relevant LIBOR Determination Date, to the principal London
offices of at least two of the Reference Banks to which such quotations
are, in the opinion of the Trustee, being so made, or (ii) in the event
that the Trustee can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks
selected by the Trustee are quoting on such LIBOR Determination Date to
leading European banks.
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(iii) If on any LIBOR Determination Date the Trustee is required but
is unable to determine the Reserve Interest Rate in the manner provided in
paragraph (b) above, LIBOR shall be LIBOR as determined on the preceding
LIBOR Determination Date, or, in the case of the first LIBOR Determination
Date, the Initial LIBOR Rate.
(c) Until all of the LIBOR Certificates are paid in full, the Trustee will
at all times retain at least four Reference Banks for the purpose of determining
LIBOR with respect to each LIBOR Determination Date. The Servicer initially
shall designate the Reference Banks. Each "Reference Bank" shall be a leading
bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, shall not control, be controlled by, or be under common
control with, the Trustee and shall have an established place of business in
London. If any such Reference Bank should be unwilling or unable to act as such
or if the Servicer should terminate its appointment as Reference Bank, the
Trustee shall promptly appoint or cause to be appointed another Reference Bank.
The Trustee shall have no liability or responsibility to any Person for (i) the
selection of any Reference Bank for purposes of determining LIBOR or (ii) any
inability to retain at least four Reference Banks which is caused by
circumstances beyond its reasonable control.
(d) The Pass-Through Rate for each Class of LIBOR Certificates for each
related Interest Accrual Period shall be determined by the Trustee on each LIBOR
Determination Date so long as the LIBOR Certificates are outstanding on the
basis of LIBOR and the respective formulae appearing in footnotes corresponding
to the LIBOR Certificates in the table relating to the Certificates in the
Preliminary Statement.
(e) In determining LIBOR, any Pass-Through Rate for the LIBOR
Certificates, any Interest Settlement Rate, or any Reserve Interest Rate, the
Trustee may conclusively rely and shall be protected in relying upon the offered
quotations (whether written, oral or on the Dow Xxxxx Markets) from the BBA
designated banks, the Reference Banks or the New York City banks as to LIBOR,
the Interest Settlement Rate or the Reserve Interest Rate, as appropriate, in
effect from time to time. The Trustee shall not have any liability or
responsibility to any Person for (i) the Trustee's selection of New York City
banks for purposes of determining any Reserve Interest Rate or (ii) its
inability, following a good-faith reasonable effort, to obtain such quotations
from, the BBA designated banks, the Reference Banks or the New York City banks
or to determine such arithmetic mean, all as provided for in this Section 4.08.
(f) The establishment of LIBOR and each Pass-Through Rate for the LIBOR
Certificates by the Trustee shall (in the absence of manifest error) be final,
conclusive and binding upon each Holder of a Certificate and the Trustee.
(g) The Pass-Through Rate for the Interest Accrual Period for the first
Distribution Date for each Class of LIBOR Certificates is set forth in the
applicable footnote under the heading "Master REMIC" in the Preliminary
Statement.
Section 4.08. Swap Trust and Swap Accounts.
On the Closing Date, there is hereby established a separate trust (the
"Swap Trust"), the assets of which shall consist of the Swap Trustee's rights
and obligations under the Swap Contracts. The Swap Trust shall be maintained by
the Swap Trustee, who initially shall be the Trustee. The Swap Trustee shall
hold the assets of the Swap Trust in trust for the benefit of the Holders of the
LIBOR Certificates and the Swap Counterparty. No later than the Closing Date,
the Swap Trustee shall establish and maintain two separate, segregated trust
accounts to be held in the Swap Trust, one titled, "Class A-1 Swap Account,
Deutsche Bank National Trust Company, as Swap Trustee, in trust for the Swap
Counterparty and the registered holders of IndyMac, MBS Mortgage Pass-Through
Certificates, Series 2006-AR21, Class A-1," and one titled "Certificate Swap
Account, Deutsche Bank National Trust Company, as Swap Trustee,
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in trust for the Swap Counterparty and the registered holders of IndyMac, MBS
Mortgage Pass-Through Certificates, Series 2006-AR21." Each account shall be an
Eligible Account and funds on deposit therein shall be held separate and apart
from, and shall not be commingled with, any other moneys, including, without
limitation, other moneys of the Trustee held pursuant to this Agreement. Amounts
therein shall be held uninvested. Funds on deposit in the Swap Accounts shall be
distributed in the amounts and in the order of priority described under Section
4.02(d). For federal income tax purposes, the portion of the Swap Trust relating
to the Certificate Swap Account and the Certificate Swap Contract shall be owned
by the Class C Certificates and the portion of the Swap Trust relating to the
Class A-1 Swap Account and the Class A-1 Swap Contract shall be owned by the
Class A-1 Certificates.
On each Distribution Date, the Trustee shall make the deposits to each
Swap Account pursuant to Section 4.02(a), and to the extent that the amount of
each deposit is insufficient to pay any Net Swap Payment and/or Swap Termination
Payment (other than a Swap Termination Payment due to a Swap Counterparty
Trigger Event) due to the Swap Counterparty under the related Swap Contract with
respect to such Distribution Date, the Trustee shall withdraw, out of amounts on
deposit in the Distribution Account in respect of the Principal Remittance
Amount such additional amount as is necessary to cover the remaining portion of
any such Net Swap Payment and/or Swap Termination Payment (other than a Swap
Termination Payment due to a Swap Counterparty Trigger Event) due to the Swap
Counterparty with respect to a Swap Contract and such Distribution Date.
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ARTICLE FIVE
THE CERTIFICATES
Section 5.01. The Certificates.
The Certificates shall be substantially in the forms attached hereto as
exhibits. The Certificates shall be issuable in registered form, in the minimum
denominations, integral multiples of $1,000 in excess thereof (except that one
Certificate in each Class may be issued in a different amount which must exceed
the applicable minimum denomination) and aggregate denominations per Class set
forth in the Preliminary Statement.
Subject to Section 9.02 respecting the final distribution on the
Certificates, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either (x) by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if such Holder has so
notified the Trustee at least five Business Days before the related Record Date
or (y) by check mailed by first class mail to such Certificateholder at the
address of such holder appearing in the Certificate Register.
The Trustee shall execute the Certificates by the manual or facsimile
signature of an authorized officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized before the countersignature and delivery of any such Certificates or
did not hold such offices at the date of such Certificate. No Certificate shall
be entitled to any benefit under this Agreement, or be valid for any purpose,
unless countersigned by the Trustee by manual signature, and such
countersignature upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly executed and delivered hereunder.
All Certificates shall be dated the date of their countersignature. On the
Closing Date, the Trustee shall countersign the Certificates to be issued at the
direction of the Depositor, or any affiliate thereof.
The Depositor shall provide the Trustee, on a continuous basis with an
adequate inventory of Certificates to facilitate transfers.
Section 5.02. Certificate Register; Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall maintain, in accordance with Section 5.06, a
Certificate Register for the Trust Fund in which, subject to subsections (b) and
(c) below and to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Upon surrender for registration of
transfer of any Certificate, the Trustee shall execute and deliver, in the name
of the designated transferee or transferees, one or more new Certificates of the
same Class and aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be exchanged for
other Certificates of the same Class in authorized denominations and evidencing
the same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Trustee. Whenever any Certificates are
so surrendered for exchange, the Trustee shall execute, authenticate, and
deliver the Certificates that the Certificateholder making the exchange is
entitled to receive. A written instrument of transfer in form satisfactory to
the Trustee duly executed by the holder of a Certificate or his attorney duly
authorized in writing shall accompany every Certificate presented or surrendered
for registration of transfer or exchange.
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No service charge to the Certificateholders shall be made for any
registration of transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of transfer or exchange
shall be cancelled and subsequently destroyed by the Trustee in accordance with
the Trustee's customary procedures.
(b) No transfer of a Private Certificate shall be made unless such
transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. If a transfer is to be made in reliance on an exemption from the
Securities Act and such state securities laws, to assure compliance with the
Securities Act and such state securities laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee shall
each certify to the Trustee in writing the facts surrounding the transfer in
substantially the form set forth in Exhibit J (the "Transferor Certificate") and
deliver to the Trustee either (i) a letter in substantially the form of either
Exhibit K (the "Investment Letter") or Exhibit L (the "Rule 144A Letter") or
(ii) at the expense of the transferor, an Opinion of Counsel that such transfer
may be made pursuant to an exemption from the Securities Act; provided, however,
that in the case of the delivery of an Investment Letter in connection with the
transfer of any Class C or Class P Certificate to a transferee that is formed
with the purpose of issuing notes backed by such Class C or Class P Certificate,
as the case may be, clause (b) and (c) of the form of Investment Letter shall
not be applicable and shall be deleted by such transferee. The Depositor shall
provide to any Holder of a Private Certificate and any prospective transferee
designated by that Holder, information regarding the related Certificates and
the Mortgage Loans and any other information necessary to satisfy the condition
to eligibility in Rule 144A(d)(4) for transfer of the Certificate without
registration thereof under the Securities Act pursuant to the registration
exemption provided by Rule 144A. The Trustee and the Servicer shall cooperate
with the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans, and other matters regarding the
Trust Fund as the Depositor reasonably requests to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect a
transfer shall, and does hereby agree to, indemnify the Trustee, the Depositor,
the Seller and the Servicer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of an ERISA-Restricted Certificate shall be made unless the
Trustee shall have received either (i) a representation from the transferee of
such Certificate acceptable to and in form and substance satisfactory to the
Trustee (if the Certificate is a Private Certificate, the requirement is
satisfied only by the Trustee's receipt of a representation letter from the
transferee substantially in the form of Exhibit K or Exhibit L, and if the
Certificate is a Residual Certificate, the requirement is satisfied only by the
Trustee's receipt of a representation letter from the transferee substantially
in the form of Exhibit I), to the effect that (x) the transferee is not an
employee benefit plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement to
effect the transfer, or (y) if the ERISA-Restricted Certificate has been the
subject of an ERISA-Qualifying Underwriting, a representation that the
transferee is an insurance company that is purchasing such Certificate with
funds contained in an "insurance company general account" (as such term is
defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE
95-60") and that the purchase and holding of such Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, or
(ii) in the case of any ERISA-Restricted Certificate presented for registration
in the name of an employee benefit plan subject to ERISA, or a plan or
arrangement subject to section 4975 of the Code (or comparable provisions of any
subsequent enactments), or a trustee of any such plan or any other person acting
on behalf of any such plan or arrangement or using such plan's or arrangement's
assets, an Opinion
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of Counsel satisfactory to the Trustee, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund, addressed to the Trustee
and the Servicer, to the effect that the purchase and holding of such
ERISA-Restricted Certificate will not result in a non-exempt prohibited
transaction under ERISA or section 4975 of the Code and will not subject the
Trustee or the Servicer to any obligation in addition to those expressly
undertaken in this Agreement or to any liability. For purposes of the preceding
sentence, with respect to an ERISA-Restricted Certificate that is not a Residual
Certificate, if the representation letter or Opinion of Counsel referred to in
the preceding sentence is not furnished, the appropriate representation in
clause (i) shall be deemed to have been made to the Trustee by the transferee's
(including an initial acquirer's) acceptance of the ERISA-Restricted
Certificates. If the representation is violated, or any attempt is made to
transfer to a plan or arrangement subject to section 406 of ERISA or a plan
subject to section 4975 of the Code, or a person acting on behalf of any such
plan or arrangement or using the assets of any such plan or arrangement, without
the Opinion of Counsel described above, the attempted transfer or acquisition
shall be void.
To the extent permitted under applicable law (including ERISA), the
Trustee shall be under no liability to any Person for any registration of
transfer of any ERISA-Restricted Certificate that is in fact not permitted by
this Section 5.02(b) or for making any payments due on such Certificate to the
Holder thereof or taking any other action with respect to such Holder under this
Agreement so long as the transfer was registered by the Trustee in accordance
with the foregoing requirements.
So long as the Certificate Swap Contract (and in the case of the Class A-1
Certificates, the Class A-1 Swap Contract) is in effect, no transfer of an LIBOR
Certificate (other than a transfer of an LIBOR Certificate to an affiliate of
the Depositor (either directly or through a nominee) in connection with the
initial issuance of the Certificates) shall be made unless the Trustee shall
have received either (i) a representation from the transferee of such LIBOR
Certificate acceptable to and in form and substance satisfactory to the Trustee
to the effect that such transferee is not a Plan, or (ii) a representation that
the purchase and holding of the LIBOR Certificate satisfy the requirements for
exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00, XXXX 96-23
or a similar exemption. In the event that such a representation letter is not
delivered, one of the foregoing representations, as appropriate, shall be deemed
to have been made by the transferee's (including an initial acquiror's)
acceptance of the LIBOR Certificate. In the event that such representation is
violated, such transfer or acquisition shall be void and of no effect.
(c) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions, and
the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Trustee of any change or impending change in its status as a
Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the Trustee
shall not register the Transfer of any Residual Certificate unless, in
addition to the certificates required to be delivered to the Trustee under
subparagraph (b) above, the Trustee shall have been furnished with an
affidavit (a "Transfer Affidavit") of the initial owner or the proposed
transferee in the form of Exhibit I.
(iii) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (A) to obtain a Transfer Affidavit from
any other Person to whom such Person attempts to Transfer its Ownership
Interest in a Residual Certificate, (B) to obtain a
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Transfer Affidavit from any Person for whom such Person is acting as
nominee, trustee or agent in connection with any Transfer of a Residual
Certificate and (C) not to Transfer its Ownership Interest in a Residual
Certificate or to cause the Transfer of an Ownership Interest in a
Residual Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership Interest
in a Residual Certificate in violation of this Section 5.02(c) shall be
absolutely null and void and shall vest no rights in the purported
Transferee. If any purported transferee shall become a Holder of a
Residual Certificate in violation of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as Holder
thereof retroactive to the date of registration of Transfer of such
Residual Certificate. The Trustee shall be under no liability to any
Person for any registration of Transfer of a Residual Certificate that is
in fact not permitted by Section 5.02(b) and this Section 5.02(c) or for
making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under this Agreement
so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and either the Rule 144A Letter
or the Investment Letter. The Trustee shall be entitled but not obligated
to recover from any Holder of a Residual Certificate that was in fact not
a Permitted Transferee at the time it became a Holder or, at such
subsequent time as it became other than a Permitted Transferee, all
payments made on such Residual Certificate at and after either such time.
Any such payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(v) The Depositor shall use its best efforts to make available, upon
receipt of written request from the Trustee, all information necessary to
compute any tax imposed under section 860E(e) of the Code as a result of a
Transfer of an Ownership Interest in a Residual Certificate to any Holder
who is not a Permitted Transferee.
The restrictions on Transfers of a Residual Certificate set forth in this
Section 5.02(c) shall cease to apply (and the applicable portions of the legend
on a Residual Certificate may be deleted) with respect to Transfers occurring
after delivery to the Trustee of an Opinion of Counsel, which Opinion of Counsel
shall not be an expense of the Trust Fund, the Trustee, the Seller or the
Servicer, to the effect that the elimination of such restrictions will not cause
any REMIC created under this Agreement to fail to qualify as a REMIC at any time
that the Certificates are outstanding or result in the imposition of any tax on
the Trust Fund, a Certificateholder or another Person. Each Person holding or
acquiring any Ownership Interest in a Residual Certificate hereby consents to
any amendment of this Agreement which, based on an Opinion of Counsel furnished
to the Trustee, is reasonably necessary (a) to ensure that the record ownership
of, or any beneficial interest in, a Residual Certificate is not transferred,
directly or indirectly, to a Person that is not a Permitted Transferee and (b)
to provide for a means to compel the Transfer of a Residual Certificate which is
held by a Person that is not a Permitted Transferee to a Holder that is a
Permitted Transferee.
(d) The preparation and delivery of all certificates and opinions referred
to above in this Section 5.02 in connection with transfer shall be at the
expense of the parties to such transfers.
(e) Except as provided below, the Book-Entry Certificates shall at all
times remain registered in the name of the Depository or its nominee and at all
times: (i) registration of the Certificates may not be transferred by the
Trustee except to another Depository; (ii) the Depository shall maintain
book-entry records with respect to the Certificate Owners and with respect to
ownership and transfers of such Book-Entry Certificates; (iii) ownership and
transfers of registration of the Book-Entry Certificates on the books of the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository
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may collect its usual and customary fees, charges and expenses from its
Depository Participants; (v) the Trustee shall deal with the Depository,
Depository Participants and Indirect Participants as representatives of the
Certificate Owners of the Book-Entry Certificates for purposes of exercising the
rights of holders under this Agreement, and requests and directions for and
votes of such representatives shall not be deemed to be inconsistent if they are
made with respect to different Certificate Owners; and (vi) the Trustee may rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its Depository Participants and furnished by the
Depository Participants with respect to Indirect Participants and persons shown
on the books of such Indirect Participants as direct or indirect Certificate
Owners.
All transfers by Certificate Owners of Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing the Certificate Owner. Each Depository
Participant shall only transfer Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
If (x) (i) the Depository or the Depositor advises the Trustee in writing
that the Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (ii) the Trustee or the Depositor is unable
to locate a qualified successor or (y) after the occurrence of an Event of
Default, Certificate Owners representing at least 51% of the Certificate Balance
of the Book-Entry Certificates together advise the Trustee and the Depository
through the Depository Participants in writing that the continuation of a
book-entry system through the Depository is no longer in the best interests of
the Certificate Owners, the Trustee shall notify all Certificate Owners, through
the Depository, of the occurrence of any such event and of the availability of
definitive, fully-registered Certificates (the "Definitive Certificates") to
Certificate Owners requesting the same. Upon surrender to the Trustee of the
related Class of Certificates by the Depository, accompanied by the instructions
from the Depository for registration, the Trustee shall issue the Definitive
Certificates. None of the Servicer, the Depositor or the Trustee shall be liable
for any delay in delivery of such instruction and each may conclusively rely on,
and shall be protected in relying on, such instructions. The Servicer shall
provide the Trustee with an adequate inventory of certificates to facilitate the
issuance and transfer of Definitive Certificates. Upon the issuance of
Definitive Certificates all references herein to obligations imposed upon or to
be performed by the Depository shall be deemed to be imposed upon and performed
by the Trustee, to the extent applicable with respect to such Definitive
Certificates and the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder; provided that the Trustee shall
not by virtue of its assumption of such obligations become liable to any party
for any act or failure to act of the Depository.
Section 5.03. Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate is surrendered to the Trustee, or (b) the
Trustee receives evidence to its satisfaction of the destruction, loss, or theft
of any Certificate and the Servicer and the Trustee receive the security or
indemnity required by them to hold each of them harmless, then, in the absence
of notice to the Trustee that the Certificate has been acquired by a Protected
Purchaser, and if the requirements of Section 8-406 of the UCC are met and
subject to Section 8-405 of the UCC, the Trustee shall execute, countersign, and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or
stolen Certificate, a new Certificate of like Class, tenor, and Percentage
Interest. In connection with the issuance of any new Certificate under this
Section 5.03, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith. Any replacement Certificate issued pursuant to this Section 5.03
shall constitute complete and indefeasible evidence of
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ownership, as if originally issued, whether or not the lost, stolen, or
destroyed Certificate is found at any time.
Section 5.04. Persons Deemed Owners.
The Servicer, the Trustee and any agent of the Servicer or the Trustee may
treat the Person in whose name any Certificate is registered as the owner of
such Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and none of the Servicer or the
Trustee, nor any agent of the Servicer or the Trustee shall be affected by any
notice to the contrary.
Section 5.05. Access to List of Certificateholders' Names and Addresses.
If three or more Certificateholders and/or Certificate Owners (a) request
such information in writing from the Trustee, (b) state that such
Certificateholders and/or Certificate Owners desire to communicate with other
Certificateholders and/or Certificate Owners with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication which such Certificateholders and/or Certificate Owners propose to
transmit, or if the Depositor or Servicer shall request such information in
writing from the Trustee, then the Trustee shall, within ten Business Days after
the receipt of such request, provide the Depositor, the Servicer or such
Certificateholders and/or Certificate Owners at such recipients' expense the
most recent list of the Certificateholders of such Trust Fund held by the
Trustee. The Depositor and every Certificateholder and/or Certificate Owner, by
receiving and holding a Certificate, agree that the Trustee shall not be held
accountable because of the disclosure of any such information as to the list of
the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 5.06. Maintenance of Office or Agency.
The Trustee will maintain at its expense an office or offices or agency or
agencies in the United States located at DB Services Tennessee, 000 Xxxxxxxxx
Xxxx Xx., Xxxxxxxxx, XX 00000-0000, Attention: Transfer Unit, where Certificates
may be surrendered for registration of transfer or exchange. The Trustee will
give prompt written notice to the Certificateholders of any change in such
location of any such office or agency.
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ARTICLE SIX
THE DEPOSITOR AND THE SERVICER
Section 6.01. Respective Liabilities of the Depositor and the Servicer.
The Depositor and the Servicer shall each be liable in accordance with
this Agreement only to the extent of the obligations specifically and
respectively imposed upon and undertaken by them in this Agreement.
Section 6.02. Merger or Consolidation of the Depositor or the Servicer.
The Depositor and the Servicer will each keep in full effect their
existence and their rights and franchises as a corporation and a federal savings
bank, respectively, under the laws of the United States or under the laws of one
of the states thereof and will each obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, or any of the Mortgage Loans and to perform
its respective duties under this Agreement.
Any Person into which the Depositor or the Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Depositor or the Servicer shall be a party, or any person succeeding to the
business of the Depositor or the Servicer, shall be the successor of the
Depositor or the Servicer, as the case may be, hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, however, that
the successor or surviving Person to the Servicer shall be qualified to sell
mortgage loans to, and to service mortgage loans on behalf of, FNMA or FHLMC.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Servicer, the Servicer shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Servicer.
Section 6.03. Limitation on Liability of the Depositor, the Seller, the
Servicer, and Others.
None of the Depositor, the Seller, the Servicer or any of the directors,
officers, employees or agents of the Depositor, the Seller or the Servicer shall
be under any liability to the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Seller, the Servicer or any such Person
against any breach of representations or warranties made by it herein or protect
the Depositor, the Seller, the Servicer or any such Person from any liability
which would otherwise be imposed by reasons of willful misfeasance, bad faith or
gross negligence in the performance of duties or because of reckless disregard
of obligations and duties hereunder. The Depositor, the Seller, the Servicer,
and any director, officer, employee or agent of the Depositor, the Seller or the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Seller, the Servicer, and any director, officer, employee or
agent of the Depositor, the Seller or the Servicer shall be indemnified by the
Trust Fund and held harmless against any loss, liability or expense incurred in
connection with any audit, controversy or judicial proceeding relating to a
governmental taxing authority or any legal action relating to this Agreement or
the Certificates, other than any loss, liability or expense related to any
specific
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Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred because of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or because of reckless
disregard of obligations and duties hereunder. None of the Depositor, the Seller
or the Servicer shall be under any obligation to appear in, prosecute or defend
any action that is not incidental to its respective duties hereunder and which
in its opinion may involve it in any expense or liability; provided, however,
that any of the Depositor, the Seller or the Servicer may in its discretion
undertake any such legal action that it may deem appropriate in respect of this
Agreement and the rights and duties of the parties hereto and interests of the
Trustee and the Certificateholders hereunder. In such event, the legal expenses
and costs of such action and any liability resulting therefrom shall be
expenses, costs and liabilities of the Trust Fund, and the Depositor, the
Seller, and the Servicer shall be entitled to be reimbursed therefor out of the
Certificate Account.
Section 6.04. Limitation on Resignation of the Servicer.
The Servicer shall not resign from the obligations and duties hereby
imposed on it except (a) upon appointment of a successor servicer and receipt by
the Trustee of a letter from each Rating Agency that such a resignation and
appointment will not result in a downgrading, qualification or withdrawal of the
rating of any of the Certificates or (b) upon determination that its duties
under this Agreement are no longer permissible under applicable law. Any such
determination under clause (b) permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
servicer shall have assumed the Servicer's responsibilities, duties, liabilities
and obligations under this Agreement and the Depositor shall have received the
information described in the following sentence. As a condition to the
effectiveness of any such resignation, at least 15 calendar days prior to the
effective date of such resignation, the Servicer shall provide (x) written
notice to the Depositor of any successor pursuant to this Section and (y) in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to the resignation
of the Servicer.
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ARTICLE SEVEN
DEFAULT
Section 7.01. Events of Default.
"Event of Default," wherever used in this Agreement, means any one of the
following events:
(a) any failure by the Servicer to deposit in the Certificate Account or
remit to the Trustee any payment required to be made by it under this Agreement,
which failure continues unremedied for five days after the date on which written
notice of the failure has been given to the Servicer by the Trustee or the
Depositor or to the Servicer and the Trustee by the Holders of Certificates of
any Class evidencing not less than 25% of the aggregate Percentage Interests of
the Class; or
(b) any failure by the Servicer to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement (except with respect to a failure related to a
Limited Exchange Act Reporting Obligation), which failure materially affects the
rights of Certificateholders and continues unremedied for a period of 60 days
after the date on which written notice of such failure shall have been given to
the Servicer by the Trustee or the Depositor, or to the Servicer and the Trustee
by the Holders of Certificates of any Class evidencing not less than 25% of the
Percentage Interests of the Class; provided that the sixty-day cure period shall
not apply to the initial delivery of the Mortgage File for Delay Delivery
Mortgage Loans nor the failure to repurchase or substitute in lieu thereof; or
(c) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a receiver, conservator or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period of 60
consecutive days; or
(d) the Servicer shall consent to the appointment of a receiver,
conservator or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Servicer
or all or substantially all of the property of the Servicer; or
(e) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of, or commence
a voluntary case under, any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(f) the Servicer shall fail (i) to make an Advance on the Servicer Advance
Date or (ii) to reimburse in full the Trustee within two days of the Servicer
Advance Date for any Advance made by the Trustee pursuant to Section 4.01(b).
If an Event of Default described in clauses (a) through (f) of this
Section 7.01 occurs, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, or at the
direction of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3%, the Trustee shall by notice in writing to the
Servicer and the Swap Counterparty (with a copy to each Rating Agency),
terminate all of the rights and obligations of the Servicer under this Agreement
and in the Mortgage Loans and the proceeds thereof, other than its rights as a
Certificateholder hereunder. In addition, if during the period that the
Depositor is required to file Exchange Act Reports with respect to the Trust
Fund, the Servicer shall fail to observe or perform any of
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the obligations that constitute a Limited Exchange Act Reporting Obligation or
the obligations set forth in Section 3.17(a) or Section 11.07(a)(i) and (ii),
and such failure continues for the lesser of 10 calendar days or such period in
which the applicable Exchange Act Report can be filed timely (without taking
into account any extensions), so long as such failure shall not have been
remedied, the Trustee shall, but only at the direction of the Depositor,
terminate all of the rights and obligations of the Servicer under this Agreement
and in and to the Mortgage Loans and the proceeds thereof, other than its rights
as a Certificateholder hereunder. The Depositor shall not be entitled to
terminate the rights and obligations of the Servicer if a failure of the
Servicer to identify a Subcontractor "participating in the servicing function"
within the meaning of Item 1122 of Regulation AB was attributable solely to the
role or functions of such Subcontractor with respect to mortgage loans other
than the Mortgage Loans.
On and after the receipt by the Servicer of such written notice, all
authority and power of the Servicer hereunder, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. The
Trustee shall make any Advance that the Servicer failed to make subject to
Section 3.05, whether or not the obligations of the Servicer have been
terminated pursuant to this Section. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any documents and other instruments, and to do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise. Unless
expressly provided in such written notice, no such termination shall affect any
obligation of the Servicer to pay amounts owed pursuant to Article VIII. The
Servicer agrees to cooperate with the Trustee in effecting the termination of
the Servicer's responsibilities and rights hereunder, including the transfer to
the Trustee of all cash amounts which shall at the time be credited to the
Certificate Account, or thereafter be received with respect to the Mortgage
Loans. If the Servicer fails to make any Advance required under Section 4.01 of
this Agreement, thereby triggering an Event of Default described in clause (f)
of this Section 7.01, the Trustee shall make such Advance on that Distribution
Date.
Notwithstanding any termination of the activities of the Servicer under
this Agreement, the Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due before the
notice terminating such Servicer's rights and obligations as Servicer hereunder
and received after such notice, that portion thereof to which such Servicer
would have been entitled pursuant to Sections 3.09(a)(i) through (viii), and any
other amounts payable to such Servicer hereunder the entitlement to which arose
before the termination of its activities hereunder.
If the Servicer is terminated, the Trustee shall provide the Depositor in
writing and in form and substance reasonably satisfactory to the Depositor, all
information reasonably requested by the Depositor in order to comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to a successor
servicer in the event the Trustee should succeed to the duties of the Servicer
as set forth herein.
Section 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer receives a notice of termination
pursuant to Section 7.01, the Trustee shall, subject to and to the extent
provided in Section 3.05, be the successor to the Servicer in its capacity as
Servicer under this Agreement and the transactions set forth or provided for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Servicer by the terms hereof and applicable law
including the obligation to make Advances pursuant to Section 4.01. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Servicer would have been entitled to charge to the
Certificate Account or Distribution Account if the Servicer had continued to act
hereunder, including, if the Servicer was receiving the Servicing Fee, the
Servicing Fee. Notwithstanding the foregoing, if the Trustee has become the
successor to the Servicer in
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accordance with Section 7.01, the Trustee may, if it shall be unwilling to so
act, or shall, if it is prohibited by applicable law from making Advances
pursuant to Section 4.01 or if it is otherwise unable to so act, appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which does not adversely affect
the then current rating of the Certificates by each Rating Agency, as the
successor to the Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. Any successor
to the Servicer shall be an institution which is a FNMA and FHLMC approved
seller/servicer in good standing, which has a net worth of at least $15,000,000,
which is willing to service the Mortgage Loans and which executes and delivers
to the Depositor and the Trustee an agreement accepting such delegation and
assignment, containing an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Servicer (other
than liabilities of the Servicer under Section 6.03 incurred before termination
of the Servicer under Section 7.01), with like effect as if originally named as
a party to this Agreement; provided that each Rating Agency acknowledges that
its rating of the Certificates in effect immediately before such assignment and
delegation will not be qualified or reduced as a result of such assignment and
delegation. Pending appointment of a successor to the Servicer hereunder, the
Trustee shall act in such capacity as provided above, subject to section 3.03
and unless prohibited by law. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that in no case shall the rate of such compensation
exceed the Servicing Fee Rate. The Trustee and such successor shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. Neither the Trustee nor any other successor servicer shall be
deemed to be in default hereunder because of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof or any failure to
perform, or any delay in performing, any duties or responsibilities hereunder,
in either case caused by the failure of the Servicer to deliver or provide, or
any delay in delivering or providing, any cash, information, documents or
records to it.
In connection with the termination or resignation of the Servicer
hereunder, either (i) the successor Servicer, including the Trustee if the
Trustee is acting as successor Servicer, shall represent and warrant that it is
a member of MERS in good standing and shall agree to comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS, or (ii) the predecessor
Servicer shall cooperate with the successor Servicer either (x) in causing MERS
to execute and deliver an assignment of Mortgage in recordable form to transfer
the Mortgage from MERS to the Trustee and to execute and deliver such other
notices, documents and other instruments as may be necessary or desirable to
effect a transfer of such Mortgage Loan or servicing of such Mortgage Loan on
the MERS(R) System to the successor Servicer or (y) in causing MERS to designate
on the MERS(R) System the successor Servicer as the servicer of such Mortgage
Loan. The predecessor Servicer shall file or cause to be filed any such
assignment in the appropriate recording office. The successor Servicer shall
cause such assignment to be delivered to the Trustee promptly upon receipt of
the original with evidence of recording thereon or a copy certified by the
public recording office in which such assignment was recorded.
Any successor to the Servicer as servicer shall give notice to the
Mortgagors of such change of servicer and shall, during the term of its service
as servicer, maintain in force the policy or policies that the Servicer is
required to maintain pursuant to this Agreement.
Section 7.03. Notification to Certificateholders.
(a) Upon any termination of or appointment of a successor to the Servicer,
the Trustee shall give prompt written notice thereof to Certificateholders and
to each Rating Agency.
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(b) Within 60 days after the occurrence of any Event of Default, the
Trustee shall transmit by mail to all Certificateholders and each Rating Agency
notice of each such Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured or waived.
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
Section 8.01. Duties of the Trustee.
The Trustee, before the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to
perform such duties and only such duties as are specifically set forth in this
Agreement. In case an Event of Default has occurred and remains uncured, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that are specifically required to be furnished pursuant to any provision
of this Agreement shall examine them to determine whether they are in the form
required by this Agreement. The Trustee shall not be responsible for the
accuracy or content of any such resolution, certificate, statement, opinion,
report, document, order, or other instrument.
No provision of this Agreement shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct; provided, however, that, unless an Event of Default
known to the Trustee has occurred and is continuing,
(a) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not be liable
except for the performance of the duties and obligations specifically set forth
in this Agreement, no implied covenants or obligations shall be read into this
Agreement against the Trustee, and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement which it believed in good faith to be genuine and
to have been duly executed by the proper authorities respecting any matters
arising hereunder;
(b) the Trustee shall not be liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
is finally proven that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken,
suffered, or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates evidencing not less than 25% of the Voting
Rights relating to the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Agreement. As long as any Voting Rights are held by
parties other than the Seller, its Affiliates, or its agents, Voting Rights of
Certificates held by the Seller, its Affiliates or its agents as the Seller
shall certify to the Trustee upon any entity obtaining such ownership will be
excluded from participating in such voting arrangements, and excluded from
determining the 25% threshold.
Section 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(a) the Trustee may request and rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
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instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties and the Trustee shall have no
responsibility to ascertain or confirm the genuineness of any signature of any
such party or parties;
(b) the Trustee may consult with counsel, financial advisers or
accountants and the advice of any such counsel, financial advisers or
accountants and any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(d) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other paper
or document, unless requested in writing so to do by Holders of Certificates
evidencing not less than 25% of the Voting Rights allocated to each Class of
Certificates; provided, however, that no Certificates held by the Seller, the
Depositor or any Affiliate shall be given effect for the purpose of calculating
any such aggregation of Voting Rights;
(e) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
accountants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agents, accountants or attorneys
appointed with due care by it hereunder;
(f) the Trustee shall not be required to risk or expend its own funds or
otherwise incur any financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers hereunder if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it;
(g) the Trustee shall not be liable for any loss on any investment of
funds pursuant to this Agreement (other than as issuer of the investment
security);
(h) the Trustee shall not be deemed to have knowledge of an Event of
Default until a Responsible Officer of the Trustee shall have received written
notice thereof;
(i) the Trustee shall be under no obligation to exercise any of the
trusts, rights or powers vested in it by this Agreement or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which may be incurred therein or thereby;
(j) the Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee's economic self-interest
for (i) serving as investment adviser, administrator, shareholder servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using Affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Trustee does not guarantee the performance of any Permitted Investment; and
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(k) The Trustee shall not knowingly take any action that would cause the
Trust Fund to fail to qualify as a qualifying special purpose entity.
In order to comply with laws, rules, regulations and executive orders in
effect from time to time applicable to banking institutions, including those
relating to the funding of terrorist activities and money laundering
("Applicable Law"), the Trustee is required to obtain, verify and record certain
information relating to individuals and entities which maintain a business
relationship with the Trustee. Accordingly, each of the parties agrees to
provide to the Trustee upon its request from time to time such identifying
information and documentation as may be available for such party in order to
enable the Trustee to comply with Applicable Law.
Section 8.03. Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Depositor or the Seller, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document other than with respect
to the Trustee's execution and countersignature of the Certificates. The Trustee
shall not be accountable for the use or application by the Depositor or the
Servicer of any funds paid to the Depositor or the Servicer in respect of the
Mortgage Loans or deposited in or withdrawn from the Certificate Account by the
Depositor or the Servicer.
Except as provided in Section 2.01(c), the Trustee shall have no
responsibility for filing or recording any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder (unless the
Trustee shall have become the successor Servicer). The Trustee makes no
representations as to the validity or sufficiency of this Agreement or of the
Certificates or of any Mortgage Loan or related document or of MERS or the
MERS(R) System other than with respect to the Trustee's execution and
counter-signature of the Certificates.
The Trustee executes the Certificates not in its individual capacity but
solely as Trustee of the Trust Fund created by this Agreement, in the exercise
of the powers and authority conferred and vested in it by this Agreement. Each
of the undertakings and agreements made on the part of the Trustee on behalf of
the Trust Fund in the Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the purpose
of binding only the Trust Fund.
Section 8.04. Trustee May Own Certificates.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Certificates with the same rights as it would have if it were not
the Trustee.
Section 8.05. Trustee's Fees and Expenses.
As compensation for its activities under this Agreement, on each
Distribution Date the Trustee may withdraw from the Distribution Account the
Trustee Fee for that Distribution Date. The Trustee and any director, officer,
employee, or agent of the Trustee shall be indemnified by the Servicer against
any loss, liability, or expense (including reasonable attorney's fees) resulting
from any error in any tax or information return prepared by the Servicer or
incurred in connection with any claim or legal action relating to
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(a) this Agreement, (b) the Certificates, or (c) the performance of any of
the Trustee's duties under this Agreement, other than any loss, liability or
expense incurred because of willful misfeasance, bad faith or negligence in the
performance of any of the Trustee's duties hereunder or incurred by reason of
any action of the Trustee taken at the direction of the Certificateholders under
this Agreement. This indemnity shall survive the termination of this Agreement
or the resignation or removal of the Trustee under this Agreement. Without
limiting the foregoing, except as otherwise agreed upon in writing by the
Depositor and the Trustee, and except for any expense, disbursement, or advance
arising from the Trustee's negligence, bad faith, or willful misconduct, the
Servicer shall pay or reimburse the Trustee, for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in accordance with
this Agreement with respect to
(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 which would
not cause either of the Rating Agencies to reduce their respective then current
ratings of the Certificates (or having provided such security from time to time
as is sufficient to avoid such reduction) as evidenced in writing by each Rating
Agency. If such corporation or association publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 8.06
the combined capital and surplus of such corporation or association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with this Section 8.06, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07. The
entity serving as Trustee may have normal banking and trust relationships with
the Depositor and its affiliates or the Servicer and its affiliates; provided,
however, that such entity cannot be an affiliate of the Seller, the Depositor or
the Servicer other than the Trustee in its role as successor to the Servicer.
Section 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice of resignation to the Depositor, the
Servicer, and each Rating Agency not less than 60 days before the date specified
in such notice, when, subject to Section 8.08, such resignation is to take
effect, and acceptance by a successor trustee in accordance with Section 8.08
meeting the qualifications set forth in Section 8.06. If no successor trustee
meeting such qualifications shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice or resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
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As a condition to the effectiveness of any such resignation, at least 15
calendar days prior to the effective date of such resignation, the Trustee shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory to
the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
the resignation of the Trustee.
If at any time the Trustee shall cease to be eligible in accordance with
Section 8.06 and shall fail to resign after written request thereto by the
Depositor, or if at any time the Trustee shall become incapable of acting, or
shall be adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or a tax is imposed with respect to
the Trust Fund by any state in which the Trustee or the Trust Fund is located
and the imposition of such tax would be avoided by the appointment of a
different trustee, or (iv) during the period in which the Depositor is required
to file Exchange Act Reports with respect to the Trust Fund, the Trustee fails
to comply with its obligations under the last sentence of Section 7.01, the
preceding paragraph, Section 8.09 or Article 11 and such failure is not remedied
within the lesser of 10 calendar days or such period in which the applicable
Exchange Act Report can be filed timely (without taking into account any
extensions), then, in the case of clauses (i) through (iii), then the Depositor
or the Servicer, or in the case of clause (iv), the Depositor, may remove the
Trustee and appoint a successor trustee by written instrument, in triplicate,
one copy of which shall be delivered to the Trustee, one copy to the Servicer
and one copy to the successor trustee.
The Holders of Certificates entitled to at least 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which shall be delivered
by the successor Trustee to the Servicer, one complete set to the Trustee so
removed, one complete set to the successor so appointed and one complete set to
the Depositor, together with a written description of the basis for such
removal. As long as any Voting Rights are held by parties other than the Seller,
its Affiliates, or its agents, Voting Rights of Certificates held by the Seller,
its Affiliates or its agents as the Seller shall certify to the Trustee upon any
such entity obtaining such ownership will be excluded from participating in such
voting arrangements, and excluded from determining the 51% threshold. The
successor trustee shall notify each Rating Agency of any removal of the Trustee.
Any resignation or removal of the Trustee and appointment of a successor
trustee pursuant to this Section 8.07 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 8.08.
Section 8.08. Successor Trustee.
Any successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor and to its predecessor trustee and the
Servicer an instrument accepting such appointment hereunder and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The Depositor, the Servicer and the predecessor trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this Section
8.08 unless, at the time of its acceptance, the successor trustee is eligible
under Section 8.06 and its appointment does not
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adversely affect the then current rating of the Certificates and has provided to
the Depositor in writing and in form and substance reasonably satisfactory to
the Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect to
a replacement Trustee.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such trustee
hereunder to all Holders of Certificates. If the Depositor fails to mail such
notice within 10 days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of the
Depositor.
Section 8.09. Merger or Consolidation of the Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the business of the Trustee, shall be the successor of
the Trustee hereunder, provided that such corporation shall be eligible under
Section 8.06 without the execution or filing of any paper or further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
As a condition to the effectiveness of any merger or consolidation, at
least 15 calendar days prior to the effective date of any merger or
consolidation of the Trustee, the Trustee shall provide (x) written notice to
the Depositor of any successor pursuant to this Section and (y) in writing and
in form and substance reasonably satisfactory to the Depositor, all information
reasonably requested by the Depositor in order to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a replacement Trustee.
Section 8.10. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing any Mortgage Note may at the time be
located, the Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity and for the
benefit of the Certificateholders, such title to the Trust Fund or any part
thereof, whichever is applicable, and, subject to the other provisions of this
Section 8.10, such powers, duties, obligations, rights and trusts as the
Servicer and the Trustee may consider appropriate. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in the case an Event of Default shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under Section 8.08.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) To the extent necessary to effectuate the purposes of this Section
8.10, all rights, powers, duties and obligations conferred or imposed upon the
Trustee, except for the obligation of the Trustee under this Agreement to
advance funds on behalf of the Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in
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such act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Servicer hereunder), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the applicable Trust
Fund or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(b) No trustee hereunder shall be held personally liable because of any
act or omission of any other trustee hereunder and such appointment shall not,
and shall not be deemed to, constitute any such separate trustee or co-trustee
as agent of the Trustee;
(c) The Trustee may at any time accept the resignation of or remove any
separate trustee or co-trustee; and
(d) The Servicer, and not the Trustee, shall be liable for the payment of
reasonable compensation, reimbursement and indemnification to any such separate
trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the separate trustees and co-trustees, when and as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and the Depositor.
Any separate trustee or co-trustee may, at any time, constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Tax Matters.
It is intended that the assets with respect to which one or more REMIC
elections pertaining to the Trust Fund is to be made, as set forth in the
Preliminary Statement, shall constitute, and that the conduct of matters
relating to such assets shall be such as to qualify such assets as, a "real
estate mortgage investment conduit" as defined in and in accordance with the
REMIC Provisions. In furtherance of such intention, the Trustee covenants and
agrees that it shall act as agent (and the Trustee is hereby appointed to act as
agent) on behalf of each REMIC created under this Agreement and that in such
capacity it shall:
(a) prepare and file in a timely manner, a U.S. Real Estate Mortgage
Investment Conduit Income Tax Return (Form 1066 or any successor form adopted by
the Internal Revenue Service) with respect to each REMIC created hereunder and
prepare and file with the Internal Revenue Service and applicable state or local
tax authorities income tax or information returns for each taxable year with
respect to each REMIC described in the Preliminary Statement, containing such
information and at the times and in the manner as may be required by the Code or
state or local tax laws, regulations, or rules, and furnish to
Certificateholders the schedules, statements or information at such times and in
such manner as may be required thereby;
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(b) within thirty days of the Closing Date, furnish to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code, the
name, title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code;
(c) make an election that each REMIC created under this Agreement be
treated as a REMIC on the federal tax return for its first taxable year (and, if
necessary, under applicable state law);
(d) prepare and forward to the Certificateholders and to the Internal
Revenue Service and, if necessary, state tax authorities, all information
returns and reports as and when required to be provided to them in accordance
with the REMIC Provisions, including the calculations of any original issue
discount and of taxable income or net loss to the holders of the residual
interests in each REMIC created hereunder using the Prepayment Assumption (as
defined in the Prospectus Supplement). For purposes of calculating taxable
income or net loss to the holders of the residual interests in each such REMIC,
the Trustee also shall assume that the indices in respect of any adjustable rate
Mortgage Loans are static until the liquidation or purchase of the Mortgage
Loans in accordance with Section 9.01 herein;
(e) provide information necessary for the computation of tax imposed on
the transfer of a Residual Certificate to a Person that is not a Permitted
Transferee, or an agent (including a broker, nominee or other middleman) of a
Person that is not a Permitted Transferee, or a pass-through entity in which a
Person that is not a Permitted Transferee is the record holder of an interest
(the reasonable cost of computing and furnishing such information may be charged
to the Person liable for such tax);
(f) to the extent that they are under its control, conduct matters
relating to such assets at all times that any Certificates are outstanding so as
to maintain the status as any REMIC created under this Agreement under the REMIC
Provisions;
(g) not knowingly or intentionally take any action or omit to take any
action that would cause the termination of the REMIC status of any REMIC created
under this Agreement;
(h) pay, from the sources specified in the last paragraph of this Section
8.11, the amount of any federal or state tax, including prohibited transaction
taxes as described below, imposed on any REMIC before its termination when and
as the same shall be due and payable (but such obligation shall not prevent the
Trustee or any other appropriate Person from contesting any such tax in
appropriate proceedings and shall not prevent the Trustee from withholding
payment of such tax, if permitted by law, pending the outcome of such
proceedings);
(i) ensure that federal, state or local income tax or information returns
shall be signed by the Trustee or such other person as may be required to sign
such returns by the Code or state or local laws, regulations or rules;
(j) maintain records relating to each REMIC created under this Agreement,
including the income, expenses, assets, and liabilities thereof and the fair
market value and adjusted basis of the assets determined at such intervals as
may be required by the Code, as may be necessary to prepare the foregoing
returns, schedules, statements or information; and
(k) as and when necessary and appropriate, represent each REMIC created
under this Agreement in any administrative or judicial proceedings relating to
an examination or audit by any governmental taxing authority, request an
administrative adjustment as to any taxable year of such REMIC, enter into
settlement agreements with any governmental taxing agency, extend any statute of
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limitations relating to any tax item of such REMIC, and otherwise act on behalf
of such REMIC in relation to any tax matter or controversy involving it.
To enable the Trustee to perform its duties under this Agreement, the
Depositor shall provide to the Trustee within ten days after the Closing Date
all information or data that the Trustee requests in writing and determines to
be relevant for tax purposes to the valuations and offering prices of the
Certificates, including the price, yield, prepayment assumption, and projected
cash flows of the Certificates and the Mortgage Loans. Thereafter, the Depositor
shall provide to the Trustee promptly upon written request therefor any
additional information or data that the Trustee may, from time to time,
reasonably request to enable the Trustee to perform its duties under this
Agreement. The Depositor hereby indemnifies the Trustee for any losses,
liabilities, damages, claims, or expenses of the Trustee arising from any errors
or miscalculations of the Trustee that result from any failure of the Depositor
to provide, or to cause to be provided, accurate information or data to the
Trustee on a timely basis.
If any tax is imposed on "prohibited transactions" (as defined in section
860F(a)(2) of the Code) of any REMIC created under this Agreement, on the "net
income from foreclosure property" of any REMIC created under this Agreement as
defined in section 860G(c) of the Code, on any contribution to any REMIC created
under this Agreement after the Startup Day pursuant to section 860G(d) of the
Code, or any other tax is imposed, including any minimum tax imposed on any
REMIC created hereunder pursuant to sections 23153 and 24874 of the California
Revenue and Taxation Code, if not paid as otherwise provided for herein, the tax
shall be paid by (i) the Trustee, if any such other tax arises out of or results
from negligence of the Trustee in the performance of any of its obligations
under this Agreement, (ii) the Servicer or the Seller, in the case of any such
minimum tax, if such tax arises out of or results from a breach by the Servicer
or Seller of any of their obligations under this Agreement, (iii) the Seller, if
any such tax arises out of or results from the Seller's obligation to repurchase
a Mortgage Loan pursuant to Section 2.02 or 2.03, or (iv) in all other cases, or
if the Trustee, the Servicer, or the Seller fails to honor its obligations under
the preceding clauses (i), (ii), or (iii), any such tax will be paid with
amounts otherwise to be distributed to the Certificateholders, as provided in
Section 3.09(b).
The Trustee shall treat the Carryover Reserve Fund as an outside reserve
fund within the meaning of Treasury Regulation 1.860G-2(h) that is owned by the
Holders of the Class C Certificates. The Trustee shall treat the Carryover
Reserve Fund and the Swap Trust as an outside reserve fund within the meaning of
Treasury Regulation 1.860G-2(h) that is owned by the Holders of the Class C and
Class A-1 Certificates, respectively. The Carryover Reserve Fund and Swap Trust
shall not be assets of any REMIC created under this Agreement. The Trustee shall
treat the rights of the Holders of the LIBOR Certificates to receive payments
from the Carryover Reserve Fund and the Swap Trust as rights in an interest rate
cap contract written by the Holders of the Class C Certificates and the Swap
Counterparty, respectively, in respect of any Net Rate Carryover (calculated for
this purpose without regard to any Swap Termination Payments) distributed in
favor of the Holders of the LIBOR Certificates. Thus, the LIBOR Certificates
shall be treated as representing ownership of not only a Master REMIC regular
interest, but also ownership of an interest in an interest rate cap contract.
The Trustee shall file or cause to be filed with the Internal Revenue Service
Form 1041 or such other form as may be applicable and shall furnish or cause to
be furnished, to the Class C Certificateholders and the LIBOR
Certificateholders, the respective amounts described above that are received, in
the time or times and in the manner required by the Code.
The Trustee shall account for the Swap Trust as an asset of a grantor
trust under subpart E, Part I of subchapter J of the Code and not as an asset of
any REMIC created hereunder. For federal income tax purposes, Net Swap Payment
and Swap Termination Payments payable to the Swap Counterparty shall be deemed
to be paid to the Swap Trust first, from the Master REMIC, by the Holder of the
Class C Certificates and second, from the Master REMIC by the Holders of the
applicable Class or Classes of LIBOR Certificates as and to the extent provided
below.
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Holders of LIBOR Certificates shall also be treated as having agreed to
pay, on each Distribution Date, to the Holders of the Class C Certificates an
aggregate amount equal to the excess, if any, of (i) Net Swap Payments and Swap
Termination Payments over (ii) the sum of amounts payable on the Class C
Interest as provided in the Preliminary Statement hereof (such excess, a "Class
IO Shortfall"), first from interest and then from principal distributable on the
LIBOR Certificates. Any payments of Class IO Shortfalls shall be treated for tax
purposes as having been received by the Holders of such Class of LIBOR
Certificates in respect of the corresponding Master REMIC regular interest and
as having been paid by such Holders to the Holders of the Class C Certificates
through the Swap Trust.
Section 8.12. Determination of Class A-1 Amount.
One business day prior to each Distribution Date on which any amount will
be distributed from the Certificate Swap Account to the Class A-1 Certificates
in accordance with Section 4.02(d), the Trustee shall determine the amount of
any Class A-1 Amount for that Distribution Date and report such Class A-1 Amount
to the Swap Counterparty on that same day in accordance with the notice
provisions contained in Section 10.05(c); provided, however, that the Trustee
shall be under no obligation to report such Class A-1 Amount to the Swap
Counterparty unless it has first received the Certificate Swap Report for such
Distribution Date.
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ARTICLE NINE
TERMINATION
Section 9.01. Termination upon Liquidation or Purchase of the Mortgage
Loans.
Subject to Section 9.03, the obligations and responsibilities of the
Depositor, the Servicer, and the Trustee created hereby shall terminate upon the
earlier of
(a) the purchase by the Servicer of all Mortgage Loans (and REO
Properties) at the price equal to the sum of
(i) 100% of the Stated Principal Balance of each Mortgage Loan
(other than in respect of a Delinquent Mortgage Loan or REO Property) plus
one month's accrued interest thereon at the applicable Adjusted Mortgage
Rate less any amounts collected by the Servicer representing principal and
interest due after the related Due Date,
(ii) the lesser of (x) the appraised value of any Delinquent
Mortgage Loan or REO Property as determined by the higher of two
appraisals completed by two independent appraisers selected by the
Servicer at the expense of the Servicer and (y) the Stated Principal
Balance of each such Delinquent Mortgage Loan or Mortgage Loan related to
such REO Property, in each case plus accrued and unpaid interest thereon
at the applicable Adjusted Net Mortgage Rate, and
(iii) any costs and damages incurred by the Trust Fund in connection
with any violation by each Mortgage Loan of any predatory or abusive
lending law, and
(b) the later of
(i) the maturity or other liquidation (or any Advance with respect
thereto) of the last Mortgage Loan and the disposition of all REO Property
and
(ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement. In no event shall
the trusts created hereby continue beyond the expiration of 21 years from
the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late Ambassador of the United States to the Court of St. James's, living
on the date of this Agreement.
The right to purchase all Mortgage Loans and REO Properties pursuant to
clause (a) above shall be conditioned upon the aggregate Stated Principal
Balance of those Mortgage Loans, at the time of any such repurchase, aggregating
less than ten percent (10%) of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-off Date. The first Distribution Date on which the
right to purchase all Mortgage Loans and REO Properties pursuant to clause (a)
above first becomes exercisable is referred to as the "Optional Termination
Date." The Servicer shall effect any such repurchase by depositing the purchase
price, as calculated above, as of the month preceding the date on which such
purchase price shall be distributed to Certificateholders into the Certificate
Account. With such repurchase, the Servicer shall acquire any rights or
potential rights of the Certificateholders or the Trustee to causes of action
against any Person relating to the Mortgage Loans or the origination of the
Mortgage Loans, including, without limitation, the right to enforce any breach
of a representation or warranty made at any time with respect to the Mortgage
Loans.
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The Swap Trust shall terminate on the earlier of (i) the latest Swap
Contract Termination Date, (ii) the reduction of the aggregate Class Certificate
Balance of the LIBOR Certificates to zero and (iii) the termination of this
Agreement.
Section 9.02. Final Distribution on the Certificates.
If on any Determination Date the Servicer determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Certificate Account, the Servicer shall direct the Trustee
promptly to send a final distribution notice to each Certificateholder. If the
Servicer elects to terminate the Trust Fund pursuant to clause (a) of Section
9.01, no later than the 15th day of the month preceding the month of the final
Distribution Date the Servicer shall notify the Depositor and the Trustee of the
date the Servicer intends to terminate the Trust Fund and of the applicable
repurchase price of the Mortgage Loans and REO Properties.
Notice of any termination of the Trust Fund specifying the Distribution
Date on which Certificateholders may surrender their Certificates for payment of
the final distribution and cancellation shall be given promptly by the Trustee
by letter to Certificateholders mailed not earlier than the 15th day and not
later than the last day of the month next preceding the month of such final
distribution. Any such notice shall specify (a) the Distribution Date upon which
final distribution on the Certificates will be made upon presentation and
surrender of Certificates at the office therein designated, (b) the amount of
such final distribution, (c) the location of the office or agency at which such
presentation and surrender must be made, and (d) that the Record Date otherwise
applicable to the Distribution Date is not applicable, distributions being made
only upon presentation and surrender of the Certificates at the office therein
specified. The Servicer will give such notice to each Rating Agency at the time
such notice is given to Certificateholders.
If this notice is given, the Servicer shall cause all funds in the
Certificate Account to be remitted to the Trustee for deposit in the
Distribution Account on the Business Day before the applicable Distribution Date
in an amount equal to the final distribution in respect of the Certificates.
Upon such final deposit with respect to the Trust Fund and the receipt by the
Trustee of a Request for Release therefor, the Trustee shall promptly release to
the Servicer the Mortgage Files for the Mortgage Loans.
Upon presentation and surrender of the Certificates, the Trustee shall
cause to be distributed to the Certificateholders of each Class on the final
Distribution Date and in the order set forth in Section 4.02, an amount equal to
(i) as to each Class of Regular Certificates (other than the Notional Amount
Certificates), its Certificate Balance plus for each such Class accrued interest
thereon (or on their Notional Amount, if applicable) in the case of an
interest-bearing Certificate and (ii) as to the Residual Certificates, any
amount remaining on deposit in the Distribution Account (other than the amounts
retained to meet claims) after application pursuant to clause (i) above.
Notwithstanding the reduction of the Certificate Balance of any Class of
Certificates to zero, such Class will be outstanding hereunder solely for the
purpose of receiving distributions and for no other purpose until the
termination of the respective obligations and responsibilities of the Depositor,
the Servicer and the Trustee hereunder in accordance with Article Nine. The
foregoing provisions are intended to distribute to each Class of Regular
Certificates any accrued and unpaid interest and principal to which they are
entitled based on the Pass-Through Rates and actual Class Certificate Balances
or Notional Amounts set forth in the Preliminary Statement upon liquidation of
the Trust Fund.
If any affected Certificateholder does not surrender its Certificates for
cancellation within six months after the date specified in the above mentioned
written notice, the Trustee shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within six months after the
second notice all the
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applicable Certificates shall not have been surrendered for cancellation, the
Trustee may take appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets which remain a part of the Trust Fund. If within one year after the
second notice all Certificates shall not have been surrendered for cancellation,
then the Holders of the Class A-R Certificates shall be entitled to all
unclaimed funds and other assets of the Trust Fund which remain subject hereto.
Section 9.03. Additional Termination Requirements.
(a) If the Servicer exercises its purchase option with respect to the
Mortgage Loans as provided in Section 9.01, the Trust Fund shall be terminated
in accordance with the following additional requirements, unless the Trustee has
been supplied with an Opinion of Counsel, at the expense of the Servicer, to the
effect that the failure to comply with the requirements of this Section 9.03
will not (i) result in the imposition of taxes on "prohibited transactions" on
any REMIC created hereunder as defined in section 860F of the Code, or (ii)
cause any REMIC created under this Agreement to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(b) The Trustee shall sell all of the assets of the Trust Fund to the
Servicer, and, within 90 days of such sale, shall distribute to the
Certificateholders the proceeds of such sale in complete liquidation of each
REMIC created under this Agreement.
(c) The Trustee shall attach a statement to the final federal income tax
return for each REMIC created under this Agreement stating that pursuant to
Treasury Regulation ss. 1.860F-1, the first day of the 90-day liquidation period
for such REMIC was the date on which the Trustee sold the assets of the Trust
Fund to the Servicer.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
Section 10.01. Amendment.
This Agreement may be amended from time to time by the Depositor, the
Servicer and the Trustee without the consent of any of the Certificateholders
(i) to cure any ambiguity or mistake, (ii) to correct any defective provision in
this Agreement or to supplement any provision in this Agreement which may be
inconsistent with any other provision in this Agreement, (iii) to conform this
Agreement to the Prospectus Supplement, (iv) to add to the duties of the
Depositor, the Seller or the Servicer, (v) to modify, alter, amend, add to or
rescind any of the terms or provisions contained in this Agreement to comply
with any rules or regulations promulgated by the Commission from time to time,
(vi) to add any other provisions with respect to matters or questions arising
under this Agreement, or (vii) to modify, alter, amend, add to, or rescind any
of the terms or provisions contained in this Agreement.
No action pursuant to clauses (v), (vi) or (vii) above may, as evidenced
by an Opinion of Counsel (which Opinion of Counsel shall not be an expense of
the Trustee or the Trust Fund), adversely affect in any material respect the
interests of any Certificateholder. The amendment shall not be deemed to
adversely affect in any material respect the interests of the Certificateholders
if the Person requesting the amendment obtains a letter from each Rating Agency
stating that the amendment would not result in the downgrading, qualification or
withdrawal of the respective ratings then assigned to the Certificates. Any such
letter in and of itself will not represent a determination as to the materiality
of any amendment and will represent a determination only as to the credit issues
affecting any rating. Each party to this Agreement agrees that it will cooperate
with each other party in amending this Agreement pursuant to clause (v) above.
The Trustee, the Depositor, and the Servicer also may at any time and from
time to time amend this Agreement without the consent of the Certificateholders
to modify, eliminate or add to any of its provisions to the extent necessary or
helpful to (i) maintain the qualification of any REMIC created under this
Agreement as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on any REMIC created under this Agreement pursuant to the
Code that would be a claim at any time before the final redemption of the
Certificates, or (iii) comply with any other requirements of the Code, if the
Trustee has been provided an Opinion of Counsel, which opinion shall be an
expense of the party requesting such opinion but in any case shall not be an
expense of the Trustee or the Trust Fund, to the effect that the action is
necessary or helpful for one of the foregoing purposes.
This Agreement may also be amended from time to time by the Depositor, the
Servicer, and the Trustee with the consent of the Holders of Certificates
evidencing Percentage Interests aggregating not less than 51% of each Class of
Certificates adversely affected thereby for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Holders of
Certificates. As long as any Voting Rights are held by parties other than the
Seller, its Affiliates, or its agents, Voting Rights of Certificates held by the
Seller, its Affiliates or its agents as the Seller shall certify to the Trustee
upon any such entity obtaining such ownership will be excluded from
participating in such voting arrangements, and excluded from determining the 51%
threshold. No amendment shall
(i) reduce in any manner the amount of, or delay the timing of,
payments required to be distributed on any Certificate without the consent
of the Holder of such Certificate,
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(ii) amend, modify, add to, rescind, or alter in any respect Section
10.13, notwithstanding any contrary provision of this Agreement, without
the consent of the Holders of Certificates evidencing Percentage Interests
aggregating not less than 66 2/3% (provided, however, that no Certificates
held by the Seller, the Depositor or any Affiliate thereby shall be given
effect for the purpose of calculating any such aggregation of Percentage
Interests), or
(iii) reduce the aforesaid percentages of Certificates the Holders
of which are required to consent to any such amendment, without the
consent of the Holders of all such Certificates then outstanding.
Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless (i) it shall have
first received an Opinion of Counsel, which opinion shall not be an expense of
the Trustee or the Trust Fund, to the effect that such amendment will not cause
the imposition of any tax on any REMIC created under this Agreement or the
Certificateholders or cause any REMIC created hereunder to fail to qualify as a
REMIC at any time that any Certificates are outstanding and (ii) because the
Trust Fund is required to be a Qualifying Special Purpose Entity (as that term
is defined in Statement of Financial Accounting Standards No. 140 ("SFAS 140"),
in order for the Seller to continue to account for the transfer of the Mortgage
Loans under this Agreement as a sale under SFAS 140, prior to the parties hereto
entering into such an amendment, the Trustee shall receive an Officer's
Certificate, which shall not be an expense of the Trustee or the Trust Fund, to
the effect that such amendment would not "significantly change" (within the
meaning of SFAS 140) the permitted activities of the Trust Fund so as to cause
the Trust Fund to fail to qualify as a Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, no amendment
shall adversely affect in any material respect the Swap Counterparty without the
prior written consent of the Swap Counterparty, which consent shall not be
unreasonably withheld.
Promptly after the execution of any amendment to this Agreement requiring
the consent of Certificateholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.01 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be an
expense of the Trustee or the Trust Fund), satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that all
requirements for amending this Agreement have been complied with; and (ii)
either (A) the amendment does not adversely affect in any material respect the
interests of any Certificateholder or (B) the conclusion set forth in the
preceding clause (A) is not required to be reached pursuant to this Section
10.01.
Section 10.02. Recordation of Agreement; Counterparts.
This Agreement is subject to recordation in all appropriate public offices
for real property records in all the counties or other comparable jurisdictions
in which any or all of the properties subject to the Mortgages are situated, and
in any other appropriate public recording office or elsewhere, such
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recordation to be effected by the Servicer at its expense, but only upon receipt
of an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
Section 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 10.04. Intention of Parties.
It is the express intent of the parties hereto that the conveyance (i) of
the Mortgage Loans by the Seller to the Depositor and (ii) of the Trust Fund by
the Depositor to the Trustee each be, and be construed as, an absolute sale
thereof. It is, further, not the intention of the parties that such conveyances
be deemed a pledge thereof. However, if, notwithstanding the intent of the
parties, the assets are held to be the property of the Seller or Depositor, as
the case may be, or if for any other reason this Agreement is held or deemed to
create a security interest in either such assets, then (i) this Agreement shall
be deemed to be a security agreement within the meaning of the UCC and (ii) the
conveyances provided for in this Agreement shall be deemed to be an assignment
and a grant (i) by the Seller to the Depositor or (ii) by the Depositor to the
Trustee, for the benefit of the Certificateholders, of a security interest in
all of the assets transferred, whether now owned or hereafter acquired.
The Seller and the Depositor for the benefit of the Certificateholders
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Trust Fund, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of the Agreement. The Depositor shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned to the Trustee for the
benefit of the Certificateholders.
Section 10.05. Notices.
(a) The Trustee shall use its best efforts to promptly provide notice to
each Rating Agency and the Swap Counterparty with respect to each of the
following of which it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Servicer or the Trustee and
the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to Section
2.03; and
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5. The final distribution to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Certificateholders described in Section 4.06;
2. Each annual statement as to compliance described in Section 3.17;
3. Each annual independent public accountants' servicing report
described in Section 11.07; and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2.02, 2.03 or 3.11.
(b) All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given when delivered to (a) in the case of the
Depositor, IndyMac MBS, Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Secondary Marketing: Transaction Management; (b) in the case of the
Servicer, IndyMac Bank, F.S.B., 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000-0000, Attention: Secondary Marketing: Transaction Management or such other
address as may be hereafter furnished to the Depositor and the Trustee by the
Servicer in writing; (c) in the case of the Trustee to the Corporate Trust
Office, Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx
Xxx, Xxxxxxxxxx 00000-0000, Attention: Mortgage Administration IN06AL, Series
2006-AR21, or such other address as the Trustee may hereafter furnish to the
Depositor or Servicer, (d) in the case of each of the Rating Agencies, the
address specified therefor in the definition corresponding to the name of such
Rating Agency, and (e) in the case of the Swap Counterparty, Deutsche Bank AG,
New York Branch, 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, or such other address as
may be hereafter furnished by the Swap Counterparty.. Notices to
Certificateholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
Section 10.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 10.07. Assignment
Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 6.02, this Agreement may not be assigned by the
Servicer without the prior written consent of the Trustee and Depositor.
Section 10.08. Limitation on Rights of Certificateholders.
The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the trust created by this Agreement, nor entitle
such Certificateholder's legal representative or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a petition or
winding up of the trust created hereby, or otherwise affect the rights,
obligations and liabilities of the parties to this Agreement or any of them.
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No Certificateholder shall have any right to vote (except as provided in
this Agreement) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties to this Agreement, nor
shall anything herein set forth or contained in the terms of the Certificates be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party because of any action taken by the parties to
this Agreement pursuant to any provision of this Agreement.
No Certificateholder shall have any right by virtue or by availing itself
of any provisions of this Agreement to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as provided in this Agreement, and
unless the Holders of Certificates evidencing not less than 25% of the Voting
Rights evidenced by the Certificates shall also have made written request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses, and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity shall have neglected or refused to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement of
this Section 10.08, each Certificateholder and the Trustee shall be entitled to
any relief that can be given either at law or in equity. As long as any Voting
Rights are held by parties other than the Seller, its Affiliates, or its agents,
Voting Rights of Certificates held by the Seller, its Affiliates or its agents
as the Seller shall certify to the Trustee upon any such entity obtaining such
ownership will be excluded from participating in such voting arrangements, and
excluded from determining the 25% threshold.
Section 10.09. Inspection and Audit Rights.
The Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor or the Trustee during the Servicer's normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss its
affairs, finances and accounts relating to the Mortgage Loans with its officers,
employees and independent public accountants (and by this provision the Servicer
hereby authorizes said accountants to discuss with such representative such
affairs, finances and accounts), all at such reasonable times and as often as
may be reasonably requested. Any out-of-pocket expense incident to the exercise
by the Depositor or the Trustee of any right under this Section 10.09 shall be
borne by the party requesting such inspection; all other such expenses shall be
borne by the Servicer.
Section 10.10. Certificates Nonassessable and Fully Paid.
It is the intention of the Depositor that Certificateholders shall not be
personally liable for obligations of the Trust Fund, that the interests in the
Trust Fund represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
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Section 10.11. Official Record.
The Seller agrees that this Agreement is and shall remain at all times
before the time at which this Agreement terminates an official record of the
Seller as referred to in Section 13(e) of the Federal Deposit Insurance Act.
Section 10.12. Protection of Assets.
(a) Except for transactions and activities entered into in connection with
the securitization that is the subject of this Agreement, the trust created by
this Agreement is not authorized and has no power to:
(i) borrow money or issue debt;
(ii) merge with another entity, reorganize, liquidate or sell assets;
(iii) engage in any business or activities.
(b) Each party to this Agreement agrees that it will not file an
involuntary bankruptcy petition against the Trustee or the Trust Fund or
initiate any other form of insolvency proceeding until after the Certificates
have been paid in full.
Section 10.13. Qualifying Special Purpose Entity.
Notwithstanding any contrary provision of this Agreement, the Trust Fund
shall not hold any property or engage in any activity that would disqualify the
Trust Fund from being a qualifying special purpose entity under generally
accepted accounting principles.
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ARTICLE ELEVEN
EXCHANGE ACT REPORTING
Section 11.01. Filing Obligations.
The Servicer, the Trustee and the Seller shall reasonably cooperate with
the Depositor in connection with the satisfaction of the Depositor's reporting
requirements under the Exchange Act with respect to the Trust Fund. In addition
to the information specified below, if so requested by the Depositor for the
purpose of satisfying its reporting obligation under the Exchange Act, the
Servicer, the Trustee and the Seller shall provide the Depositor with (a) such
information which is available to such Person without unreasonable effort or
expense and within such timeframe as may be reasonably requested by the
Depositor to comply with the Depositor's reporting obligations under the
Exchange Act and (b) to the extent such Person is a party (and the Depositor is
not a party) to any agreement or amendment required to be filed, copies of such
agreement or amendment in XXXXX-compatible form.
Section 11.02. Form 10-D Filings.
(a) In accordance with the Exchange Act, unless no reporting obligation
under the Exchange Act exists at such time with respect to the Trust Fund, the
Trustee shall prepare for filing and file within 15 days after each Distribution
Date (subject to permitted extensions under the Exchange Act) with the
Commission with respect to the Trust Fund, a Form 10-D with copies of the
Monthly Report and, to the extent delivered to the Trustee, no later than five
calendar days following the Distribution Date, such other information identified
by the Depositor or the Servicer, in writing, to be filed with the Commission
(such other information, the "Additional Designated Information"). If the
Depositor or Servicer directs that any Additional Designated Information is to
be filed with any Form 10-D, the Depositor or Servicer, as the case may be,
shall specify the Item on Form 10-D to which such information is responsive and,
with respect to any Exhibit to be filed on Form 10-D, the Exhibit number. Any
information to be filed on Form 10-D shall be delivered to the Trustee in
XXXXX-compatible form or as otherwise agreed upon by the Trustee and the
Depositor or the Servicer, as the case may be, at the Depositor's expense, and
any necessary conversion to XXXXX-compatible format will be at the Depositor's
expense. At the reasonable request of, and in accordance with the reasonable
directions of, the Depositor or the Servicer, subject to the two preceding
sentences, the Trustee shall prepare for filing and file an amendment to any
Form 10-D previously filed with the Commission with respect to the Trust Fund.
The Depositor shall sign the Form 10-D filed on behalf of the Trust Fund.
The Trustee shall prepare each Form 10-D and, no later than five Business
Days prior to the date on which such Form 10-D is required to be filed, deliver
a copy of such Form 10-D to the Depositor for review. No later than the Business
Day following the receipt thereof, the Depositor shall notify the Trustee of any
changes to be made to the Form 10-D. The Trustee shall make any changes thereto
requested by the Depositor and deliver the final Form 10-D to the Depositor for
signature no later than three Business Days prior to the date on which such Form
10-D must be filed by the Trustee in accordance with this Section 11.02. The
Depositor shall execute the final Form 10-D and deliver the same to the Trustee
via electronic mail (XXXXX.Xxxxxxxxxxxxx@xx.xxx) or facsimile no later than the
Business Day following receipt of the same (which, unless not received within
such time frame from the Trustee, shall be no later than two Business Days prior
to the date on which the Form 10-D is required to be filed), with an original
executed hard copy to follow by overnight courier.
(b) No later than each Distribution Date, any party responsible for
providing Additional Designated Information shall notify the Depositor and the
Trustee of any Form 10-D Disclosure Item, together with a description of any
such Form 10-D Disclosure Item in form and substance reasonably
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acceptable to the Depositor. In addition to such information as the Servicer and
the Trustee are obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Depositor, each of the Servicer and the
Trustee shall provide such information which is available to the Servicer and
the Trustee, as applicable, without unreasonable effort or expense regarding the
performance or servicing of the Mortgage Loans (in the case of the Trustee,
based on the information provided by the Servicer) as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121 of
Regulation AB. Such information shall be provided concurrently with the
Remittance Reports in the case of the Servicer and the Monthly Statement in the
case of the Trustee, commencing with the first such report due not less than
five Business Days following such request.
(c) The Trustee shall not have any responsibility to file any items (other
than those generated by it) that have not been received in a format suitable (or
readily convertible into a format suitable) for electronic filing via the XXXXX
system and shall not have any responsibility to convert any such items to such
format (other than those items generated by it or that are readily convertible
to such format). The Trustee shall have no liability to the Certificateholders,
the Trust Fund, the Servicer or the Depositor with respect to any failure to
properly prepare or file any of Form 10-D to the extent that such failure is not
the result of any negligence, bad faith or willful misconduct on its part. The
Trustee will not have any duty to verify the accuracy or sufficiency of any
information to be included in any Form 10-D not provided by it.
(d) The Trustee shall have no liability with respect to any failure to
properly prepare and file such periodic reports resulting or relating to the
Trustee's inability or failure to obtain any information not resulting from its
own negligence or willful misconduct.
Section 11.03. Form 8-K Filings.
The Servicer shall prepare and file on behalf of the Trust Fund any Form
8-K required by the Exchange Act. Each Form 8-K must be signed by the Servicer.
Any reporting party identified on Exhibit T shall promptly notify the Depositor
and the Servicer (if the notifying party is not the Servicer), but in no event
later than one (1) Business Day after its occurrence, of any Reportable Event of
which it has actual knowledge. Each Person shall be deemed to have actual
knowledge of any such event to the extent that it relates to such Person or any
action or failure to act by such Person.
Section 11.04. Form 10-K Filings.
Prior to March 30th of each year, commencing in 2007 (or such earlier date
as may be required by the Exchange Act), the Depositor shall prepare and file on
behalf of the Trust Fund a Form 10-K, in form and substance as required by the
Exchange Act. A senior officer in charge of the servicing function of the
Servicer shall sign each Form 10-K filed on behalf of the Trust Fund. Such Form
10-K shall include as exhibits each (i) annual compliance statement described
under Section 3.17, (ii) annual report on assessments of compliance with
servicing criteria described under Section 11.07 and (iii) accountant's report
described under Section 11.07. Each Form 10-K shall also include any
Xxxxxxxx-Xxxxx Certification required to be included therewith, as described in
Section 11.05.
If the Item 1119 Parties listed on Exhibit T have changed since the
Closing Date, no later than March 1 of each year, the Depositor shall provide
each of the Servicer and the Trustee via electronic mail
(XXXXX.Xxxxxxxxxxxxx@xx.xxx) with an updated Exhibit T setting forth the Item
1119 Parties. No later than March 15 of each year, commencing in 2007, the
Servicer and the Trustee shall notify the Depositor and the Servicer of any Form
10-K Disclosure Item, together with a description of any such Form 10-K
Disclosure Item in form and substance reasonably acceptable to the Depositor.
Additionally, each of the Servicer and the Trustee shall provide, and shall
cause each Reporting Subcontractor retained by the Servicer or the Trustee, as
applicable, the following information no later than March 15 of each year in
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which a Form 10-K is required to be filed on behalf of the Trust Fund: (i) if
such Person's report on assessment of compliance with servicing criteria
described under Section 11.07 or related registered public accounting firm
attestation report described under Section 11.07 identifies any material
instance of noncompliance, notification of such instance of noncompliance and
(ii) if any such Person's report on assessment of compliance with servicing
criteria or related registered public accounting firm attestation report is not
provided to be filed as an exhibit to such Form 10-K, information detailing the
explanation why such report is not included.
Section 11.05. Xxxxxxxx-Xxxxx Certification.
Each Form 10-K shall include a certification (the "Xxxxxxxx-Xxxxx
Certification") required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act
(pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff)). No later than March 15 of
each year, beginning in 2007, the Servicer and the Trustee shall (unless such
person is the Certifying Person), and the Servicer shall cause each Reporting
Subcontractor and the Trustee shall cause each Reporting Subcontractor to,
provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form attached hereto as Exhibit R, on which the Certifying Person, the
entity for which the Certifying Person acts as an officer, and such entity's
officers, directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can reasonably rely. The senior officer in charge of
the servicing function of the Servicer shall serve as the Certifying Person on
behalf of the Trust Fund. Neither the Servicer nor the Depositor will request
delivery of a certification under this clause unless the Depositor is required
under the Exchange Act to file an annual report on Form 10-K with respect to the
Trust Fund. In the event that prior to the filing date of the Form 10-K in March
of each year, the Trustee or the Depositor has actual knowledge of information
material to the Xxxxxxxx-Xxxxx Certification, the Trustee or the Depositor, as
the case may be, shall promptly notify the Servicer and the Depositor. The
respective parties hereto agree to cooperate with all reasonable requests made
by any Certifying Person or Certification Party in connection with such Person's
attempt to conduct any due diligence that such Person reasonably believes to be
appropriate in order to allow it to deliver any Xxxxxxxx-Xxxxx Certification or
portion thereof with respect to the Trust Fund.
Section 11.06. Form 15 Filing.
Prior to January 30 of the first year in which the Depositor is able to do
so under applicable law, the Trustee on behalf of the Depositor shall file a
Form 15 relating to the automatic suspension of reporting in respect of the
Trust Fund under the Exchange Act.
Section 11.07. Report on Assessment of Compliance and Attestation.
(a) On or before March 15 of each calendar year, commencing in 2007,
unless no reporting obligation under the Exchange Act exists at such time with
respect to the Trust Fund:
(i) Each of the Servicer and the Trustee shall deliver to the
Depositor and the Servicer a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Servicer's or the Trustee's,
as applicable, assessment of compliance with the Servicing Criteria during
the immediately preceding calendar year, as required under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such report
shall be signed by an authorized officer of such Person and shall address
each of the Servicing Criteria applicable to such party specified on a
certification delivered to the Depositor concurrently with the execution
of this Agreement. To the extent any of the Servicing Criteria are not
applicable to such Person, with
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respect to asset-backed securities transactions taken as a whole involving
such Person and that are backed by the same asset type backing the
Certificates, such report shall include such a statement to that effect.
The Depositor and the Servicer, and each of their respective officers and
directors shall be entitled to rely on upon each such servicing criteria
assessment.
(ii) Each of the Servicer and the Trustee shall deliver to the
Depositor and the Servicer a report of a registered public accounting firm
reasonably acceptable to the Depositor that attests to, and reports on,
the assessment of compliance made by Servicer or the Trustee, as
applicable, and delivered pursuant to the preceding paragraphs. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act, including,
without limitation that in the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such
report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language. To the
extent any of the Servicing Criteria are not applicable to such Person,
with respect to asset-backed securities transactions taken as a whole
involving such Person and that are backed by the same asset type backing
the Certificates, such report shall include such a statement to that
effect.
(iii) The Servicer shall cause each Reporting Subcontractor to
deliver to the Depositor an assessment of compliance and accountant's
attestation as and when provided in paragraphs (a) and (b) of this Section
11.07.
(iv) The Trustee shall cause each Reporting Subcontractor to deliver
to the Depositor and the Servicer an assessment of compliance and
accountant's attestation as and when provided in paragraphs (a) and (b) of
this Section.
(v) The Servicer shall execute (and the Servicer shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual compliance statement
provided pursuant to Section 3.17, (B) annual report on assessments of
compliance with servicing criteria provided pursuant to this Section 11.07
and (C) accountant's report provided pursuant to this Section 11.07 and
shall include a certification that each such annual compliance statement
or report discloses any deficiencies or defaults described to the
registered public accountants of such Person to enable such accountants to
render the certificates provided for in this Section 11.07.
(vi) The Trustee shall execute (and the Trustee shall cause each
Reporting Subcontractor to execute) a reliance certificate to enable the
Certification Parties to rely upon each (A) annual report on assessments
of compliance with servicing criteria provided pursuant to this Section
11.07 and (C) accountant's report provided pursuant to this Section 11.07
and shall include a certification that each such report discloses any
deficiencies or defaults described to the registered public accountants of
such Person to enable such accountants to render the certificates provided
for in this Section 11.07.
(b) In the event the Servicer, the Trustee or Reporting Subcontractor is
terminated or resigns during the term of this Agreement, such Person shall
provide documents and information required by this Section 11.07 with respect to
the period of time it was subject to this Agreement or provided services with
respect to the Trust Fund, the Certificates or the Mortgage Loans.
(c) An assessment of compliance provided by a Subcontractor pursuant to
Section 11.07(a)(iii) or (iv) need not address any elements of the Servicing
Criteria other than those specified by the Servicer or the Trustee, as
applicable, pursuant to Section 11.07(a)(i).
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Section 11.08. Use of Subcontractors.
(a) [Reserved].
(b) It shall not be necessary for the Servicer or the Trustee to seek the
consent of the Depositor or any other party hereto to the utilization of any
Subcontractor. The Servicer or the Trustee, as applicable, shall promptly upon
request provide to the Depositor (or any designee of the Depositor, such as the
Servicer or administrator) a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by such Person, specifying (i) the identity of each such Subcontractor,
(ii) which (if any) of such Subcontractors are "participating in the servicing
function" within the meaning of Item 1122 of Regulation AB, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii) of
this paragraph.
As a condition to the utilization of any Subcontractor determined to be a
Reporting Subcontractor, the Servicer or the Trustee, as applicable, shall cause
any such Subcontractor used by such Person for the benefit of the Depositor to
comply with the provisions of Sections 11.07 and 11.09 of this Agreement to the
same extent as if such Subcontractor were the Servicer (except with respect to
the Servicer's duties with respect to preparing and filing any Exchange Act
Reports or as the Certifying Person) or the Trustee, as applicable. The Servicer
or the Trustee, as applicable, shall be responsible for obtaining from each
Subcontractor and delivering to the Depositor and the Servicer, any assessment
of compliance and attestation required to be delivered by such Subcontractor
under Section 11.05 and Section 11.07, in each case as and when required to be
delivered.
Section 11.09. Amendments.
In the event the parties to this Agreement desire to further clarify or
amend any provision of this Article 11, this Agreement shall be amended to
reflect the new agreement between the parties covering matters in this Article
11 pursuant to Section 10.01, which amendment shall not require any Opinion of
Counsel or Rating Agency confirmations or the consent of any Certificateholder.
If, during the period that the Depositor is required to file Exchange Act
Reports with respect to the Trust Fund, the Servicer is no longer an Affiliate
of the Depositor, the Depositor shall assume the obligations and
responsibilities of the Servicer in this Article 11 with respect to the
preparation and filing of the Exchange Act Reports and/or acting as the
Certifying Person, if the Depositor has received indemnity from such successor
Servicer satisfactory to the Depositor, and such Servicer has agreed to provide
a Xxxxxxxx-Xxxxx Certification to the Depositor substantially in the form of
Exhibit U.
* * * * * *
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IN WITNESS WHEREOF, the Depositor, the Trustee, and the Seller and
Servicer have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
INDYMAC MBS, INC.
as Depositor
By: /S/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
By: /s/ Xxxxxxxx Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
INDYMAC BANK, F.S.B.
as Seller and Servicer
By: /S/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 28th day of June, 2006, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Senior Vice President of IndyMac MBS, Inc., one of
the entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxxxx
------------------
Notary Public
[NOTARIAL SEAL]
1
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Orange )
On this 28th day of June, 2006, before me, personally appeared Xxxxxx
Xxxxx and Xxxxxxxx Xxxxxxxxxxx, known to me to be an Associate and a Senior Vice
President, respectively, of Deutsche Bank National Trust Company, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxx
----------------
Notary Public
[NOTARIAL SEAL]
2
STATE OF CALIFORNIA )
: ss.:
COUNTY OF Los Angeles )
On this 28th day of June, 2006, before me, personally appeared Xxxx
Xxxxxxxx, known to me to be a Senior Vice President of IndyMac Bank, F.S.B., one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxx Xxxxxxxxx
------------------
Notary Public
[NOTARIAL SEAL]
3
Schedule I
MORTGAGE LOAN SCHEDULE [DELIVERED AT CLOSING TO TRUSTEE]
S-I-1
Schedule II
INDYMAC MBS, INC. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR21
Representations and Warranties of the Seller/Servicer
Indy Mac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule II to the Depositor and the Trustee, as of
the Closing Date. Capitalized terms used but not otherwise defined in this
Schedule II shall have the meanings assigned thereto in the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") relating to the
above-referenced Series, among IndyMac, as seller and Servicer, IndyMac MBS,
Inc., as depositor, and Deutsche Bank National Trust Company, as trustee.
(1) IndyMac is duly organized as a federally insured savings bank
and is validly existing and in good standing under the laws of the United
States of America and is duly authorized and qualified to transact any
business contemplated by the Pooling and Servicing Agreement to be
conducted by IndyMac in any state in which a Mortgaged Property is located
or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing business
laws of any such state, to the extent necessary to ensure its ability to
enforce each Mortgage Loan, to service the Mortgage Loans in accordance
with the Pooling and Servicing Agreement and to perform any of its other
obligations under the Pooling and Servicing Agreement in accordance with
the terms thereof.
(2) IndyMac has the full corporate power and authority to sell and
service each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by the Pooling and
Servicing Agreement and has duly authorized by all necessary corporate
action on the part of IndyMac the execution, delivery and performance of
the Pooling and Servicing Agreement; and the Pooling and Servicing
Agreement, assuming the due authorization, execution and delivery thereof
by the other parties thereto, constitutes a legal, valid and binding
obligation of IndyMac, enforceable against IndyMac in accordance with its
terms, except that (a) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(3) The execution and delivery of the Pooling and Servicing
Agreement by IndyMac, the sale and servicing of the Mortgage Loans by
IndyMac under the Pooling and Servicing Agreement, the consummation of any
other of the transactions contemplated by the Pooling and Servicing
Agreement, and the fulfillment of or compliance with the terms thereof are
in the ordinary course of business of IndyMac and will not (A) result in a
material breach of any term or provision of the charter or by-laws of
IndyMac or (B) materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default under, any
other material agreement or instrument to which IndyMac is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to IndyMac of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over IndyMac (including the OTS, the Federal Deposit
Insurance Corporation or any other governmental entity having regulatory
authority over IndyMac); and IndyMac is not in breach or violation of any
material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory
body, administrative agency or governmental body having jurisdiction over
it (including the OTS, the Federal Deposit Insurance
S-II-1
Corporation or any other governmental entity having regulatory authority
over IndyMac) which breach or violation may materially impair IndyMac's
ability to perform or meet any of its obligations under the Pooling and
Servicing Agreement.
(4) IndyMac is an approved servicer of conventional mortgage loans
for FNMA or FHLMC or is a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act.
(5) No litigation is pending or, to the best of IndyMac's knowledge,
threatened against IndyMac that would prohibit the execution or delivery
of, or performance under, the Pooling and Servicing Agreement by IndyMac.
(6) IndyMac is a member of MERS in good standing, and will comply in
all material respects with the rules and procedures of MERS in connection
with the servicing of the MERS Mortgage Loans for as long as such Mortgage
Loans are registered with MERS.
(7) Notwithstanding any federal or state law to the contrary, the
Servicer shall not impose such Prepayment Charge at any time when the
mortgage is accelerated as a result of the borrower's default in making
the scheduled payments.
S-II-2
Schedule III
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR21
Representations and Warranties as to the Mortgage Loans
IndyMac Bank, F.S.B. ("IndyMac") hereby makes the representations and
warranties set forth in this Schedule III to the Depositor and the Trustee, as
of the Closing Date or if so specified in this Schedule III, as of the Cut-off
Date with respect to each Mortgage Loan. Capitalized terms used but not
otherwise defined in this Schedule III shall have the meanings assigned to them
in the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series, among IndyMac, as seller and Servicer,
IndyMac MBS, Inc., as depositor, and Deutsche Bank National Trust Company, as
trustee.
(1) The information set forth on Schedule I to the Pooling and
Servicing Agreement with respect to each Mortgage Loan is true and correct
in all material respects as of the Closing Date.
(2) All regularly scheduled monthly payments due with respect to
each Mortgage Loan up to and including the Due Date before the Cut-off
Date have been made; and as of the Cut-off Date, no Mortgage Loan had a
regularly scheduled monthly payment that was 60 or more days Delinquent
during the twelve months before the Cut-off Date.
(3) With respect to any Mortgage Loan that is not a Cooperative
Loan, each Mortgage is a valid and enforceable first lien on the Mortgaged
Property subject only to (a) the lien of nondelinquent current real
property taxes and assessments and liens or interests arising under or as
a result of any federal, state or local law, regulation or ordinance
relating to hazardous wastes or hazardous substances and, if the related
Mortgaged Property is a unit in a condominium project or planned unit
development, any lien for common charges permitted by statute or homeowner
association fees, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being
generally acceptable to mortgage lending institutions in the area wherein
the related Mortgaged Property is located or specifically reflected in the
appraisal made in connection with the origination of the related Mortgage
Loan, and (c) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by such Mortgage.
(4) Immediately before the assignment of the Mortgage Loans to the
Depositor, the Seller had good title to, and was the sole owner of, each
Mortgage Loan free and clear of any pledge, lien, encumbrance or security
interest and had full right and authority, subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the same pursuant to the Pooling and Servicing Agreement.
(5) As of the date of origination of each Mortgage Loan, there was
no delinquent tax or assessment lien against the related Mortgaged
Property.
(6) There is no valid offset, defense or counterclaim to any
Mortgage Note or Mortgage, including the obligation of the Mortgagor to
pay the unpaid principal of or interest on such Mortgage Note.
S-III-1
(7) There are no mechanics' liens or claims for work, labor or
material affecting any Mortgaged Property which are or may be a lien prior
to or equal with, the lien of such Mortgage, except those which are
insured against by the title insurance policy referred to in item (11)
below.
(8) No Mortgaged Property has been materially damaged by water,
fire, earthquake, windstorm, flood, tornado or similar casualty (excluding
casualty from the presence of hazardous wastes or hazardous substances, as
to which the Seller makes no representation) so as to affect adversely the
value of the related Mortgaged Property as security for the Mortgage Loan.
(9) Each Mortgage Loan at origination complied in all material
respects with applicable local, state and federal laws and regulations,
including usury, equal credit opportunity, real estate settlement
procedures, truth-in-lending, and disclosure laws, or any noncompliance
does not have a material adverse effect on the value of the related
Mortgage Loan.
(10) The Seller has not modified the Mortgage in any material
respect (except that a Mortgage Loan may have been modified by a written
instrument which has been recorded or submitted for recordation, if
necessary, to protect the interests of the Certificateholders and which
has been delivered to the Trustee); satisfied, cancelled or subordinated
such Mortgage in whole or in part; released the related Mortgaged Property
in whole or in part from the lien of such Mortgage; or executed any
instrument of release, cancellation, modification or satisfaction with
respect thereto.
(11) A lender's policy of title insurance together with a
condominium endorsement and extended coverage endorsement, if applicable,
in an amount at least equal to the Cut-off Date Principal Balance of each
such Mortgage Loan or a commitment (binder) to issue the same was
effective on the date of the origination of each Mortgage Loan and each
such policy is valid and remains in full force and effect.
(12) Each Mortgage Loan was originated (within the meaning of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended) by an
entity that satisfied at the time of origination the requirements of
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
(13) All of the improvements which were included for the purpose of
determining the Appraised Value of the Mortgaged Property lie wholly
within the boundaries and building restriction lines of such property, and
no improvements on adjoining properties encroach upon the Mortgaged
Property, unless such failure to be wholly within such boundaries and
restriction lines or such encroachment, as the case may be, does not have
a material effect on the value of the Mortgaged Property.
(14) As of the date of origination of each Mortgage Loan, no
improvement located on or being part of the Mortgaged Property is in
violation of any applicable zoning law or regulation unless such violation
would not have a material adverse effect on the value of the related
Mortgaged Property. All inspections, licenses and certificates required to
be made or issued with respect to all occupied portions of the Mortgaged
Property and, with respect to the use and occupancy of the same, including
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities, unless the lack thereof
would not have a material adverse effect on the value of the Mortgaged
Property.
S-III-2
(15) The Mortgage Note and the related Mortgage are genuine, and
each is the legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms and under applicable law.
(16) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
(17) The related Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the
benefits of the security, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by
judicial foreclosure.
(18) With respect to each Mortgage constituting a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in such Mortgage,
and no fees or expenses are or will become payable by the
Certificateholders to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor.
(19) At the Cut-off Date, the improvements upon each Mortgaged
Property are covered by a valid and existing hazard insurance policy with
a generally acceptable carrier that provides for fire and extended
coverage and coverage for such other hazards as are customarily required
by institutional single family mortgage lenders in the area where the
Mortgaged Property is located, and the Seller has received no notice that
any premiums due and payable thereon have not been paid; the Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
including flood insurance at the Mortgagor's cost and expense. Anything to
the contrary in this item (19) notwithstanding, no breach of this item
(19) shall be deemed to give rise to any obligation of the Seller to
repurchase or substitute for such affected Mortgage Loan or Loans so long
as the Servicer maintains a blanket policy pursuant to the second
paragraph of Section 3.10(a) of the Pooling and Servicing Agreement.
(20) If at the time of origination of each Mortgage Loan, the
related Mortgaged Property was in an area then identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy in a form meeting the then-current
requirements of the Flood Insurance Administration is in effect with
respect to the Mortgaged Property with a generally acceptable carrier.
(21) There is no proceeding pending or threatened for the total or
partial condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring.
(22) There is no material event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a material non-monetary default, breach, violation or event of
acceleration under the Mortgage or the related Mortgage Note; and the
Seller has not waived any material non-monetary default, breach, violation
or event of acceleration.
(23) Each Mortgage File contains an appraisal of the related
Mortgaged Property in a form acceptable to FNMA or FHLMC.
(24) Any leasehold estate securing a Mortgage Loan has a stated term
of not less than five years in excess of the term of the related Mortgage
Loan.
S-III-3
(25) Each Mortgage Loan was selected from among the outstanding one-
to four-family mortgage loans in the Seller's portfolio at the Closing
Date as to which the representations and warranties made with respect to
the Mortgage Loans set forth in this Schedule III can be made. No such
selection was made in a manner intended to adversely affect the interests
of the Certificateholders.
(26) None of the Mortgage Loans are Cooperative Loans.
(27) [Reserved].
(28) None of the Mortgage Loans is a "high cost" loan, "covered"
loan (excluding home loans defined as "covered home loans" in the New
Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004), "high risk home" or "predatory" loan
or any other similarly designated loan as defined under any state, local
or federal law, as defined by applicable predatory and abusive lending
laws.
(29) Each Mortgage Loan at the time it was made complied in all
material respects with applicable local, state, and federal laws,
including, but not limited to, all applicable predatory and abusive
lending laws.
(30) [Reserved].
(31) No proceeds from any Mortgage Loan underlying the Certificates
were used to finance single-premium credit insurance policies.
(32) None of the Mortgage Notes related to the Mortgage Loans impose
a Prepayment Charge on the related Mortgage Loan for a term in excess of
three years from the origination of the Mortgage Loan.
(33) [Reserved].
(34) No Mortgage Loan is subject to the requirements of the Home
Ownership and Equity Protection Act of 1994.
(35) No borrower was encouraged or required to select a Mortgage
Loan product offered by the Mortgage Loan's originator that is a higher
cost product designed for less creditworthy borrowers, unless at the time
of the Mortgage Loan's origination, such borrower did not qualify taking
into account credit history and debt-to-income ratios, for a lower-cost
credit product then offered by the Seller or any affiliate of the Seller.
If, at the time of loan application, the borrower may have qualified for a
lower-cost credit product then offered by any mortgage lending affiliate
of the Seller, the Seller referred the borrower's application to such
affiliate for underwriting consideration.
(36) The methodology used in underwriting the extension of credit
for each Mortgage Loan employs objective mathematical principles that
relate the borrower's income, assets and liabilities to the proposed
payment and such underwriting methodology does not rely on the extent of
the borrower's equity in the collateral as the principal determining
factor in approving such credit extension. Such underwriting methodology
confirmed that at the time of origination (application/approval) the
borrower had a reasonable ability to make timely payments on the Mortgage
Loan.
S-III-4
(37) No Mortgage Loan is a "High-Cost Home Loan" as defined in any
of the following statutes: the Georgia Fair Lending Act, as amended (the
"Georgia Act"), the New York Banking Law 6-1, the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003), the Kentucky
high-cost home loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100), the New Jersey Home Ownership Act effective November 27,
2003 (N.J.S.A. 46:10B-22 et seq.), or the New Mexico Home Loan Protection
Act effective January 1, 2004 (N.M. Stat. Xxx xx.xx. 58-21A-1 et seq.).
With respect to any Mortgage Loan subject to the Georgia Act and secured
by owner occupied real property or an owner occupied manufactured home
located in the state of Georgia and originated (or modified) on or after
October 1, 2002 through and including March 7, 2003, such Mortgage Loan
was originated by IndyMac. No Mortgage Loan is a "High-Risk Home Loan" as
defined in the Illinois High-Risk Home Loan Act effective January 1, 2004
(815 Ill. Comp. Stat. 137/1 et seq.). No Mortgage Loan is a "High-Cost
Home Mortgage Loan" as defined in Massachusetts Predatory Home Loan
Practices Act, effective November 6, 2004 (Mass. Xxx. Laws Ch. 183C). None
of the Mortgage Loans that are secured by property located in the State of
Illinois are in violation of the provisions of the Illinois Interest Act
(815 Ill. Comp. Stat. 205/1 et. seq.).
(38) Each Mortgage Loan has been underwritten and serviced
substantially in accordance with the Seller's guidelines, subject to such
variances as are reflected on the Mortgage Loan Schedule or that the
Seller has approved.
(39) No Mortgage Loan is a High Cost Loan or Covered Loan, as
applicable (as such terms are defined in the then-current version of
Standard & Poor's LEVELS(R) Glossary, which is now Version 5.6 Revised,
Appendix E) and no Mortgage Loan originated on or after Oct. 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending Act.
(40) The Pooling and Servicing Agreement creates a valid and
continuing "security interest" (as defined in Section 1-201(37) of the
UCC) in each Mortgage Note in favor of the Trustee, which security
interest is prior to all other liens and is enforceable as such against
creditors of and purchasers from the Depositor. Each Mortgage Note
constitutes "promissory notes" (as defined in Section 9-102(a)(65) of the
UCC). Immediately before the assignment of each Mortgage Note to the
Trustee, the Depositor had good and marketable title to such Mortgage Note
free and clear of any lien, claim, encumbrance of any Person. All original
executed copies of each Mortgage Note have been or shall be delivered to
the Trustee within five Business Days following the Closing Date. Other
than the security interest granted to the Trustee, the Depositor has not
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any Mortgage Note. The Depositor has not authorized the filing of
and is not aware of any financing statements against the Depositor that
include a description of any of the Mortgage Notes. The Depositor is not
aware of any judgment or tax liens filed against the Depositor. None of
the Mortgage Notes has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the
Trustee.
(41) To the best of the Seller's knowledge, there was no fraud
involved in the origination of any Mortgage Loan by the mortgagee or by
the Mortgagor, any appraiser or any other party involved in the
origination of the Mortgage Loan.
(42) Each Loan is a "qualified mortgage" under Section 860G(a)(3) of
the Code.
S-III-5
Schedule IV
INDYMAC MBS, INC.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-AR21
Form of Monthly Report
[on file with the Trustee]
S-IV-1
EXHIBIT A
[FORM OF SENIOR CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
SO LONG AS THE CERTIFICATE SWAP CONTRACT (OR IN THE CASE OF THE CLASS
A-1 CERTIFICATES, THE CLASS A-1 SWAP CONTRACT) IS IN EFFECT, NO TRANSFER OF
THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN'S OR
ARRANGEMENT'S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A "PLAN")
NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX
96-23. ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF
THE SWAP TRUST TO OR ON BEHALF OF A PLAN WITHOUT THE DELIVERY TO THE TRUSTEE
OF A REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED
TO HAVE MADE A REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS
PARAGRAPH, AS APPLICABLE.
A-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
Interest Rate : %
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [__]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a Trust
Fund consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set
forth herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies________________ that is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
denomination of this Certificate by the aggregate Initial Certificate Balances
of all Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller (in such capacity, the "Seller") and as servicer (in
such capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-2
So long as the Certificate Swap Contract (or in the case of the Class
A-1 Certificates, the Class A-1 Swap Contract) is in effect, neither this
certificate nor any interest herein may be transferred unless the transferee
represents to the Trustee either (i) that such transferee is not a Plan, or
(ii) that[, in addition to the transferee satisfying requirements of the
Underwriter Exemption,] the purchase and holding of the Certificate satisfy
the requirements for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23 or a similar exemption. In the event such a
representation letter is not delivered, one of the foregoing representations,
as appropriate, shall be deemed to have been made by the transferee's
acceptance of the Certificate. In the event that such representation is
violated, such transfer or acquisition shall be void and of no effect.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
A-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
A-4
EXHIBIT B
[FORM OF SUBORDINATED CERTIFICATE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN
CERTIFICATES AS DESCRIBED IN THE AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
EXEMPTED FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.]
SO LONG AS THE CERTIFICATE SWAP CONTRACT IS IN EFFECT, NO TRANSFER OF
THIS CERTIFICATE SHALL BE MADE UNLESS THE TRUSTEE SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE TO THE EFFECT
THAT EITHER (I) SUCH TRANSFEREE IS NEITHER AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
CODE OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE SUCH PLAN'S OR
ARRANGEMENT'S ASSETS BY REASON OF THEIR INVESTMENT IN THE ENTITY (A "PLAN")
NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH
PLAN TO EFFECT SUCH TRANSFER OR (II) THE ACQUISITION AND HOLDING OF THIS
CERTIFICATE ARE ELIGIBLE FOR EXEMPTIVE RELIEF UNDER PROHIBITED TRANSACTION
CLASS EXEMPTION ("PTCE") 00-00, XXXX 00-0, XXXX 00-00, XXXX 00-00 XX XXXX
96-23. ANY PURPORTED TRANSFER OF THIS CERTIFICATE PRIOR TO THE TERMINATION OF
THE SWAP TRUST TO OR ON BEHALF OF A PLAN WITHOUT THE DELIVERY TO THE TRUSTEE
OF A REPRESENTATION LETTER AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE TRANSFEREE WILL BE DEEMED
TO HAVE MADE A REPRESENTATION AS PROVIDED IN CLAUSE (I) OR (II) OF THIS
PARAGRAPH, AS APPLICABLE.
[NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE
B-1
BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF
THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING,
DELIVERS A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
REFERRED TO HEREIN, OR DELIVERS TO THE TRUSTEE AN OPINION OF COUNSEL IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER
OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA OR TO SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.]
B-2
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
Class [___]
evidencing a percentage interest in the distributions allocable to
the Certificates of the above-referenced Class with respect to a Trust
Fund consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies_________________ that is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate Initial Certificate Balances of the
denominations of all Certificates of the Class to which this Certificate
belongs) in certain monthly distributions with respect to a Trust Fund
consisting primarily of the Mortgage Loans deposited by IndyMac MBS, Inc. (the
"Depositor"). The Trust Fund was created pursuant to a Pooling and Servicing
Agreement dated as of the Cut-off Date specified above (the "Agreement") among
the Depositor, IndyMac Bank, F.S.B., as seller (in such capacity, the
"Seller"), and as servicer (in such capacity, the "Servicer"), and Deutsche
Bank National Trust Company, as trustee (the "Trustee"). To the extent not
defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
B-3
[No transfer of a Certificate of this Class shall be made unless such transfer
is made pursuant to an effective registration statement under the Securities
Act and any applicable state securities laws or is exempt from the
registration requirements under said Act and such laws. In the event that a
transfer is to be made in reliance upon an exemption from the Securities Act
and such laws, in order to assure compliance with the Securities Act and such
laws, the Certificateholder desiring to effect such transfer and such
Certificateholder's prospective transferee shall each certify to the Trustee
in writing the facts surrounding the transfer. In the event that such a
transfer is to be made within three years from the date of the initial
issuance of Certificates pursuant hereto, there shall also be delivered
(except in the case of a transfer pursuant to Rule 144A of the Securities Act)
to the Trustee an Opinion of Counsel that such transfer may be made pursuant
to an exemption from the Securities Act and such state securities laws, which
Opinion of Counsel shall not be obtained at the expense of the Trustee, the
Seller, the Servicer or the Depositor. The Holder hereof desiring to effect
such transfer shall, and does hereby agree to, indemnify the Trustee and the
Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state laws.]
[So long as the Certificate Swap Contract is in effect, neither this
certificate nor any interest herein may be transferred unless the transferee
represents to the Trustee either (i) that such transferee is not a Plan, or
(ii) that[, in addition to the transferee satisfying requirements of the
Underwriter Exemption,] the purchase and holding of the Certificate satisfy
the requirements for exemptive relief under XXXX 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23 or a similar exemption. In the event such a
representation letter is not delivered, one of the foregoing representations,
as appropriate, shall be deemed to have been made by the transferee's
acceptance of the Certificate. In the event that such representation is
violated, such transfer or acquisition shall be void and of no effect.]
[No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation [letter] from the transferee
of such Certificate, acceptable to and in form and substance satisfactory to
the Trustee, to the effect that such transferee is not an employee benefit
plan or other benefit plan subject to Section 406 of ERISA or Section 4975 of
the Code, or a person acting on behalf of or investing plan assets of any such
plan, which representation letter shall not be an expense of the Trustee or
the Servicer, (ii) if the Certificate has been the subject of an
ERISA-Qualifying Underwriting, a representation that the transferee is an
insurance company which is purchasing such Certificate with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and
addressed to the Trustee and the Servicer to the effect that the purchase and
holding of such Certificate will not result in a nonexempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject the
Trustee or the Servicer to any obligation in addition to those undertaken in
the Agreement, which Opinion of Counsel shall not be an expense of the
Trustee, the Servicer or the Trust Fund. Notwithstanding anything else to the
contrary herein, any purported transfer of a Certificate of this Class to or
on behalf of an employee benefit plan subject to ERISA or to Section 4975 of
the Code without the opinion of counsel satisfactory to the Trustee as
described above shall be void and of no effect.]
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
B-4
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
B-5
EXHIBIT C
[FORM OF CLASS A-R CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN
ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED
UNLESS THE TRANSFEREE REPRESENTS TO THE TRUSTEE THAT SUCH TRANSFEREE IS NOT
AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS OF AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE, OR, IF SUCH
PURCHASER IS AN INSURANCE COMPANY, DELIVERS A REPRESENTATION IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN, OR DELIVERS TO THE
TRUSTEE AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AS DESCRIBED ABOVE SHALL BE
VOID AND OF NO EFFECT.
C-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance of this
Certificate ("Denomination") : $
Initial Certificate Balances of all
Certificates of this Class : $
CUSIP :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
evidencing the distributions allocable to the Class A-R
Certificates with respect to a Trust Fund consisting primarily of a pool
of conventional mortgage loans (the "Mortgage Loans") secured by first
liens on one- to four-family residential properties.
IndyMac MBS, Inc., as Depositor
Principal in respect of this Certificate is distributable monthly as set forth
herein or in the Agreement (defined below). Accordingly, the Certificate
Balance at any time may be less than the Certificate Balance as set forth
herein. This Certificate does not evidence an obligation of, or an interest
in, and is not guaranteed by the Depositor, the Seller, the Servicer or the
Trustee referred to below or any of their respective affiliates. Neither this
Certificate nor the Mortgage Loans are guaranteed or insured by any
governmental agency or instrumentality.
This certifies that_____________________ is the registered owner of the
Percentage Interest (obtained by dividing the denomination of this Certificate
by the aggregate Initial Certificate Balances of the denominations of all
Certificates of the Class to which this Certificate belongs) in certain
monthly distributions with respect to a Trust Fund consisting of the Mortgage
Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust Fund was
created pursuant to a Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement") among the Depositor, IndyMac Bank,
F.S.B., as seller (in such capacity, the "Seller") and as servicer (in such
capacity, the "Servicer"), and Deutsche Bank National Trust Company, as
trustee (the "Trustee"). To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Any distribution of the proceeds of any remaining assets of the Trust Fund
will be made only upon presentment and surrender of this Class A-R Certificate
at the Corporate Trust Office.
No transfer of a Class A-R Certificate shall be made unless the Trustee shall
have received either (i) a representation letter from the transferee of such
Certificate, acceptable to and in form and substance
C-2
satisfactory to the Trustee, to the effect that such transferee is not an
employee benefit plan or other benefit plan subject to Section 406 of ERISA or
Section 4975 of the Code, or a person investing on behalf of or with plan
assets of any such plan, which representation letter shall not be an expense
of the Trustee or the Servicer, (ii) a representation that the purchaser is an
insurance company which is purchasing such Certificate with funds contained in
an "insurance company general account" (as such term is defined in Section
V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that
the purchase and holding of such Certificate are covered under Sections I and
III of PTCE 95-60 or (iii) in the case of any such Certificate presented for
registration in the name of an employee benefit plan subject to ERISA or
Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on
behalf of any such plan, an Opinion of Counsel satisfactory to the Trustee and
addressed to the Trustee and the Servicer to the effect that the purchase and
holding of such Class A-R Certificate will not result in a nonexempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code
and will not subject the Trustee or the Servicer to any obligation in addition
to those undertaken in the Agreement, which Opinion of Counsel shall not be an
expense of the Trustee, the Servicer or the Trust Fund. Notwithstanding
anything else to the contrary herein, any purported transfer of a Class A-R
Certificate to or on behalf of an employee benefit plan subject to ERISA or to
Section 4975 of the Code without the opinion of counsel satisfactory to the
Trustee as described above shall be void and of no effect.
Each Holder of this Class A-R Certificate will be deemed to have agreed to be
bound by the restrictions of the Agreement, including but not limited to the
restrictions that (i) each person holding or acquiring any Ownership Interest
in this Class A-R Certificate must be a Permitted Transferee, (ii) no
Ownership Interest in this Class A-R Certificate may be transferred without
delivery to the Trustee of (a) a transfer affidavit of the proposed transferee
and (b) a transfer certificate of the transferor, each of such documents to be
in the form described in the Agreement, (iii) each person holding or acquiring
any Ownership Interest in this Class A-R Certificate must agree to require a
transfer affidavit and to deliver a transfer certificate to the Trustee as
required pursuant to the Agreement, (iv) each person holding or acquiring an
Ownership Interest in this Class A-R Certificate must agree not to transfer an
Ownership Interest in this Class A-R Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted or purported transfer of any Ownership Interest in this Class A-R
Certificate in violation of such restrictions will be absolutely null and void
and will vest no rights in the purported transferee.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
C-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: ____________, 20__
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ______________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
C-4
EXHIBIT D
[RESERVED]
-1
EXHIBIT E
[Form of Reverse of Certificates]
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-_
Mortgage Pass-Through Certificates, Series 200_-_
This Certificate is one of a duly authorized issue of Certificates
designated as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the
Series specified on the face hereof (herein collectively called the
"Certificates"), and representing a beneficial ownership interest in the Trust
Fund created by the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the funds on deposit in the Distribution Account
for payment hereunder and that the Trustee is not liable to the
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced thereby, and the rights,
duties and immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on
the 25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trustee and the rights of the Certificateholders under the Agreement at any
time by the Depositor, the Servicer and the Trustee with the consent of the
Holders of Certificates affected by such amendment evidencing the requisite
Percentage Interest, as provided in the Agreement. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
E-1
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest
in the Trust Fund will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of
the Depositor or the Trustee may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and neither
the Depositor, the Trustee, nor any such agent shall be affected by any notice
to the contrary.
On any Distribution Date on which the aggregate Stated Principal Balance
of the Mortgage Loans is less than ten percent (10%) of the Cut-off Date Pool
Principal Balance, the Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Mortgage Loans and all property acquired in
respect of the Mortgage Loans at a purchase price determined as provided in
the Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the
meaning assigned in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
____________________________________________ (Please print or typewrite name
and address including postal zip code of assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
____________________________________________________________________________.
Dated:
_____________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to________________________________________________
____________________________________________, for the account of
_____________________________________________________________________, account
number , or, if mailed by check, to______________________________________
______________________________________________________________________________
______________________________________________________________________________.
Applicable statements should be mailed to ____________________________________
This information is provided by ____________________, the assignee named
above, or ____________________________________________________________,
as its agent.
E-3
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
On the th day of , 20 before me, a notary public in and for said State,
personally appeared , known to me who, being by me duly sworn, did depose and
say that he executed the foregoing instrument.
___________________________________
Notary Public
[Notarial Seal]
E-4
EXHIBIT F
[FORM OF CLASS P CERTIFICATE]
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT
REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED
FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE TRUSTEE A REPRESENTATION LETTER TO THE EFFECT THAT
SUCH TRANSFEREE IS NOT AND IS NOT INVESTING ON BEHALF OF OR WITH PLAN ASSETS
OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR A PLAN SUBJECT TO SECTION 4975 OF THE
CODE, OR, IF THE CERTIFICATE HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, A REPRESENTATION IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN, OR DELIVERS AN OPINION OF COUNSEL IN ACCORDANCE
WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING
ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED TRANSFER OF THIS
CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO
SECTION 4975 OF THE CODE WITHOUT THE OPINION OF COUNSEL SATISFACTORY TO THE
TRUSTEE AS DESCRIBED ABOVE SHALL BE VOID AND OF NO EFFECT.
F-1
Certificate No. :
Cut-off Date :
First Distribution Date :
Initial Certificate Balance
of this Certificate
("Denomination") : $
Initial Certificate Balances
of all Certificates
of this Class : $
CUSIP :
Interest Rate :
Maturity Date :
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates, Series 200_-__
Class P-[1][2]
evidencing a percentage interest in the distributions allocable to the
Certificates of the above-referenced Class with respect to a Trust Fund
consisting primarily of a pool of conventional mortgage loans (the
"Mortgage Loans") secured by first liens on one- to four-family
residential properties.
Distributors in respect of this Certificate are distributable monthly as set
forth herein. Accordingly, the Certificate Balance at any time may be less
than the Certificate Balance as set forth herein. This Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Seller, the Servicer or the Trustee referred to below or any of
their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or instrumentality.
This certifies that ________________ is the registered owner of the Percentage
Interest evidenced by this Certificate (obtained by dividing the denomination
of this Certificate by the aggregate of the denominations of all Certificates
of the Class to which this Certificate belongs) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the
Mortgage Loans deposited by IndyMac MBS, Inc. (the "Depositor"). The Trust
Fund was created pursuant to a Pooling and Servicing Agreement dated as of the
Cut-off Date specified above (the "Agreement") among the Depositor, IndyMac
Bank, F.S.B., as seller and Servicer (the "Seller" or the "Servicer," as
appropriate), and Deutsche Bank National Trust Company, as trustee (the
"Trustee"). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
F-2
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the Collection Account and the Distribution Account may be made from time to
time for purposes other than distributions to Certificateholders, such
purposes including reimbursement of advances made, or certain expenses
incurred, with respect to the Mortgage Loans.
This Certificate does not have a Certificate Balance or Pass-Through Rate and
will be entitled to distributions only to the extent set forth in the
Agreement. In addition, any distribution of the proceeds of any remaining
assets of the Trust will be made only upon presentment and surrender of this
Certificate at the Corporate Trust Office or the office or agency maintained
by the Trustee.
No transfer of a Certificate of this Class shall be made unless such
disposition is exempt from the registration requirements of the Securities Act
of 1933, as amended (the "1933 Act"), and any applicable state securities laws
or is made in accordance with the 1933 Act and such laws. In the event of any
such transfer, the Trustee shall require the transferor to execute a
transferor certificate (in substantially the form attached to the Pooling and
Servicing Agreement) and deliver either (i) an Investment Letter or the Rule
144A Letter, in either case substantially in the form attached to the
Agreement, or (ii) a written Opinion of Counsel to the Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the 1933 Act or is being made pursuant
to the 1933 Act, which Opinion of Counsel shall be an expense of the
transferor.
No transfer of a Certificate of this Class shall be made unless the Trustee
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Trustee, to the effect that such (x) transferee is not an employee benefit
plan subject to Section 406 of ERISA or Section 4975 of the Code, or a person
acting on behalf of or investing plan assets of any such plan, which
representation letter shall not be an expense of the Trustee or (y) if the
Certificate has been the subject of an ERISA-Qualifying Underwriting, a
representation that the transferee is an insurance company that is purchasing
such Certificate with funds contained in an "insurance company general
account" (as such term is defined in Section V(e) of Prohibited Transaction
Class Exemption 95-60 ("PTCE 95-60") and that the purchase and holding of such
Certificate satisfy the requirements for exemptive relief under Sections I and
III of PTCE 95-60 or (ii) in the case of a Certificate presented for
registration in the name of an employee benefit plan subject to ERISA, or a
plan or arrangement subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan or arrangement or using such
plan's or arrangement's assets, an Opinion of Counsel satisfactory to the
Trustee, which Opinion of Counsel shall not be an expense of the Trustee, the
Servicer or the Trust Fund, addressed to the Trustee and the Servicer, to the
effect that the purchase and holding of such Certificate will not result in a
nonexempt prohibited transaction under ERISA or Section 4975 of the Code and
will not subject the Trustee or the Servicer to any obligation in addition to
those expressly undertaken in this Agreement or to any liability.
Reference is hereby made to the further provisions of this Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This Certificate shall not be entitled to any benefit under the Agreement or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
* * *
F-3
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: _______, ____
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ___________________________________
Countersigned:
By ___________________________
Authorized Signatory of
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee
F-4
INDYMAC MBS, INC.
IndyMac INDX Mortgage Loan Trust 200_-__
Mortgage Pass-Through Certificates
This Certificate is one of a duly authorized issue of Certificates designated
as IndyMac MBS, Inc. Mortgage Pass-Through Certificates, of the Series
specified on the face hereof (herein collectively called the "Certificates"),
and representing a beneficial ownership interest in the Trust Fund created by
the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees that it
will look solely to the funds on deposit in the Distribution Account for
payment hereunder and that the Trustee is not liable to the Certificateholders
for any amount payable under this Certificate or the Agreement or, except as
expressly provided in the Agreement, subject to any liability under the
Agreement.
This Certificate does not purport to summarize the Agreement and reference is
made to the Agreement for the interests, rights and limitations of rights,
benefits, obligations and duties evidenced thereby, and the rights, duties and
immunities of the Trustee.
Pursuant to the terms of the Agreement, a distribution will be made on the
25th day of each month or, if such 25th day is not a Business Day, the
Business Day immediately following (the "Distribution Date"), commencing on
the first Distribution Date specified on the face hereof, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement. The Record Date
applicable to each Distribution Date is the last Business Day of the month
next preceding the month of such Distribution Date.
Distributions on this Certificate shall be made by wire transfer of
immediately available funds to the account of the Holder hereof at a bank or
other entity having appropriate facilities therefor, if such Certificateholder
shall have so notified the Trustee in writing at least five Business Days
prior to the related Record Date and such Certificateholder shall satisfy the
conditions to receive such form of payment set forth in the Agreement, or, if
not, by check mailed by first class mail to the address of such
Certificateholder appearing in the Certificate Register. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the Corporate Trust Office or
such other location specified in the notice to Certificateholders of such
final distribution.
The Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee with the consent of the Holders of
Certificates affected by such amendment evidencing the requisite Percentage
Interest, as provided in the Agreement. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of
such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of
the Holders of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register of the Trustee upon surrender of this Certificate for registration of
transfer at the Corporate Trust Office, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and the Certificate Registrar
duly executed by the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Certificates of the same
F-5
Class in authorized denominations and evidencing the same aggregate Percentage
Interest in the Trust Fund will be issued to the designated transferee or
transferees.
The Certificates are issuable only as registered Certificates without coupons
in denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are
exchangeable for new Certificates of the same Class in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Depositor, the Servicer, the Seller and the Trustee and any agent of the
Depositor or the Trustee may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, nor any such agent shall be affected by any notice to the
contrary.
On any Distribution Date on which the aggregate Stated Principal Balance of
the Mortgage Loans is less than ten percent (10%) of the Cut-off Date Pool
Principal Balance, the Servicer will have the option to repurchase, in whole,
from the Trust Fund all remaining Mortgage Loans and all property acquired in
respect of the Mortgage Loans at a purchase price determined as provided in
the Agreement. In the event that no such optional termination occurs, the
obligations and responsibilities created by the Agreement will terminate upon
the later of the maturity or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan remaining in the Trust Fund or the
disposition of all property in respect thereof and the distribution to
Certificateholders of all amounts required to be distributed pursuant to the
Agreement. In no event, however, will the trust created by the Agreement
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants living at the date of the Agreement of a certain person
named in the Agreement.
Any term used herein that is defined in the Agreement shall have the meaning
assigned in the Agreement, and nothing herein shall be deemed inconsistent
with that meaning.
F-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to
assignee on the Certificate Register of the Trust Fund.
I (We) further direct the Trustee to issue a new Certificate of a like
denomination and Class, to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________________________,
Dated:
_______________________________________________
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to ____________ for the account of ________________
______________________________________________________________________________,
account number , or, if mailed by check, to
_________________________________________________________ Applicable statements
should be mailed to ___________________________________________________________
_______________________________________________________________________________,
_______________________________________________________________________________.
This information is provided by ____________________________________, the
assignee named above, or ____________________________________________________,
as its agent.
F-7
STATE OF ___________________ )
) ss.:
COUNTY OF __________________ )
On the______ th day of___________ , 20__ before me, a notary public in
and for said State, personally appeared , known to me who, being by me duly
sworn, did depose and say that he executed the foregoing instrument.
___________________________________
Notary Public
[Notarial Seal]
F-8
EXHIBIT G-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
-----------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that, as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan listed in the attached
schedule), it has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments); provided, however, that it has
received no assignment with respect to any Mortgage for which the Mortgaged
Property is located in the Commonwealth of Puerto Rico.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and to such Mortgage
Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
G-1-1
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:__________________________________________
Name:
Title:
G-1-2
EXHIBIT G-2
[RESERVED
G-2-1
EXHIBIT G-3
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
------------------------------------------------------------
Gentlemen:
Reference is made to the Initial Certification of Trustee relating to
the above-referenced series, with the schedule of exceptions attached thereto
(the "Schedule A"), delivered by the undersigned, as Trustee, on the Closing
Date in accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"). The undersigned
hereby certifies that, as to each Mortgage Loan that is a Delay Delivery
Mortgage Loan listed on Schedule A attached hereto (other than any Mortgage
Loan paid in full or listed on Schedule B attached hereto) it has received:
(i) the original Mortgage Note, endorsed by the Seller or the
originator of such Mortgage Loan, without recourse in the
following form: "Pay to the order of _______________ without
recourse", with all intervening endorsements that show a complete
chain of endorsement from the originator to the Seller, or, if the
original Mortgage Note has been lost or destroyed and not
replaced, an original lost note affidavit from the Seller, stating
that the original Mortgage Note was lost or destroyed, together
with a copy of the Mortgage Note;
(ii) the original recorded Mortgage;
(iii) a duly executed assignment of the Mortgage to "Deutsche Bank
National Trust Company, as trustee under the Pooling and Servicing
Agreement dated as of June 1, 2006, without recourse" (each such
assignment, when duly and validly completed, to be in recordable
form and sufficient to effect the assignment of and transfer to
the assignee thereof, under the Mortgage to which such assignment
relates);
(iv) the original recorded assignment or assignments of the Mortgage
together with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written
assurance or substitution agreement, if any, with evidence of
recording thereon if recordation thereof is permissible under
applicable law; and
G-3-1
(vi) the original or duplicate original lender's title policy and all
riders, if any, thereto or, in the event such original title
policy has not been received from the insurer, any one of an
original title binder, an original preliminary title report or an
original title commitment, or a copy thereof certified by the
title company, with the original policy of title insurance to be
delivered within one year of the Closing Date.
In the event that in connection with any Mortgage Loan for which the
Seller cannot deliver the original recorded Mortgage or all interim recorded
assignments of the Mortgage satisfying the requirements of clause (ii), (iii)
or (iv), as applicable, the Trustee has received, in lieu thereof, a true and
complete copy of such Mortgage and/or such assignment or assignments of the
Mortgage, as applicable, each certified by the Seller, the applicable title
company, escrow agent or attorney, or the originator of such Mortgage Loan, as
the case may be, to be a true and complete copy of the original Mortgage or
assignment of Mortgage submitted for recording.
Based on its review and examination and only as to the foregoing
documents, (i) such documents appear regular on their face and related to such
Mortgage Loan, and (ii) the information set forth in items (i), (iv), (vi) and
(xv) (solely as of origination, not as of the Cut-off Date) of the definition
of the "Mortgage Loan Schedule" in Section 1.01 of the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The Trustee makes no
representations as to: (i) the validity, legality, sufficiency, enforceability
or genuineness of any of the documents contained in each Mortgage File of any
of the Mortgage Loans identified on the [Mortgage Loan Schedule][Loan Number
and Borrower Identification Mortgage Loan Schedule] or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:_____________________________________
Name:
Title:
G-3-2
EXHIBIT G-4
[RESERVED]
G-4-1
EXHIBIT H-1
FORM OF FINAL CERTIFICATION OF TRUSTEE
[date]
[Depositor]
[Servicer]
[Seller]
_____________________
_____________________
Re: Pooling and Servicing Agreement among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer,
and Deutsche Bank National Trust Company, as Trustee,
Mortgage Pass-Through Certificates, Series 200 -
-----------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), the undersigned,
as Trustee, hereby certifies that as to each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed on
the attached Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in Section
2.01(c) of the Pooling and Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Seller.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided in
Section 2.01(c) of the Pooling and Servicing Agreement; provided, however,
that it has received no assignment with respect to any Mortgage for which the
Mortgaged Property is located in the Commonwealth of Puerto Rico, or, if the
Depositor has certified or the Trustee otherwise knows that the Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Seller.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to such
Mortgage Loan, and (b) the information set forth in items (i), (ii), (iii),
(iv), (vi) and (xi) of the definition of the "Mortgage Loan Schedule" in
Section 1.01 of the Pooling and Servicing Agreement accurately reflects
information set forth in the Mortgage File.
H-1-1
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
Pooling and Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
Notwithstanding anything herein to the contrary, the Trustee has made no
determination and makes no representations as to whether (i) any endorsement
is sufficient to transfer all right, title and interest of the party so
endorsing, as noteholder or assignee thereof, in and to that Mortgage Note or
(ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to
which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By:____________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
[RESERVED]
H-2-1
EXHIBIT I
TRANSFER AFFIDAVIT
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
STATE OF CALIFORNIA )
: ss.:
COUNTY OF _____________ )
The undersigned, being first duly sworn, deposes and says as follows:
1. The undersigned is an officer of , the proposed Transferee of an
Ownership Interest in a Class R Certificate (the "Certificate") issued
pursuant to the Pooling and Servicing Agreement, (the "Agreement"), relating
to the above-referenced Series, by and among IndyMac MBS, Inc., as depositor
(the "Depositor"), IndyMac Bank, F.S.B., as seller and Servicer and Deutsche
Bank National Trust Company, as Trustee. Capitalized terms used, but not
defined herein or in Exhibit 1 hereto, shall have the meanings ascribed to
such terms in the Agreement. The Transferee has authorized the undersigned to
make this affidavit on behalf of the Transferee.
2. The Transferee is, as of the date hereof, and will be, as of the date
of the Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The Transferee has been advised of, and understands that (i) a tax
will be imposed on Transfers of the Certificate to Persons that are not
Permitted Transferees; (ii) such tax will be imposed on the transferor, or, if
such Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the agent; and
(iii) the Person otherwise liable for the tax shall be relieved of liability
for the tax if the subsequent Transferee furnished to such Person an affidavit
that such subsequent Transferee is a Permitted Transferee and, at the time of
Transfer, such Person does not have actual knowledge that the affidavit is
false.
4. The Transferee has been advised of, and understands that a tax will
be imposed on a "pass-through entity" holding the Certificate if at any time
during the taxable year of the pass-through entity a Person that is not a
Permitted Transferee is the record holder of an interest in such entity. The
Transferee understands that such tax will not be imposed for any period with
respect to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is a Permitted Transferee and the
pass-through entity does not have actual knowledge that such affidavit is
false. (For this purpose, a "pass-through entity" includes a regulated
investment company, a real estate investment trust or common trust fund, a
partnership, trust or estate, and certain cooperatives and, except as may be
provided in Treasury Regulations, persons holding interests in pass-through
entities as a nominee for another Person.)
5. The Transferee has reviewed the provisions of Section 5.02(c) of the
Agreement (attached hereto as Exhibit 2 and incorporated herein by reference)
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by the provisions of Section 5.02(c) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and
I-1
agrees that any breach of any of the representations included herein shall
render the Transfer to the Transferee contemplated hereby null and void.
6. The Transferee agrees to require a Transfer Affidavit from any Person
to whom the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and in connection with any Transfer by a Person for whom the
Transferee is acting as nominee, trustee or agent, and the Transferee will not
Transfer its Ownership Interest or cause any Ownership Interest to be
Transferred to any Person that the Transferee knows is not a Permitted
Transferee. In connection with any such Transfer by the Transferee, the
Transferee agrees to deliver to the Trustee a certificate substantially in the
form set forth as Exhibit J to the Agreement (a "Transferor Certificate") to
the effect that such Transferee has no actual knowledge that the Person to
which the Transfer is to be made is not a Permitted Transferee.
7. The Transferee does not have the intention to impede the assessment
or collection of any tax legally required to be paid with respect to the
Certificate.
8. The Transferee's taxpayer identification number is .
9. The Transferee is a U.S. Person as defined in Code Section
7701(a)(30).
10. The Transferee is aware that the Certificate may be a "noneconomic
residual interest" within the meaning of proposed Treasury regulations
promulgated pursuant to the Code and that the transferor of a noneconomic
residual interest will remain liable for any taxes due with respect to the
income on such residual interest, unless no significant purpose of the
transfer was to impede the assessment or collection of tax.
11. The Transferee is not a foreign permanent establishment or fixed
base (within the meaning of an applicable income tax treaty) of a U.S.
taxpayer.
12. The Transferee will not transfer the Certificates, directly or
indirectly, to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
13. The Transferee will not cause income from the Certificates to be
attributable to a foreign permanent establishment or fixed base (within the
meaning of an applicable income tax treaty) of the Transferee or another U.S.
taxpayer.
14. Either:
(a) (i) At the time of the transfer, and at the close of each of
the Transferee's two fiscal years preceding the Transferee's fiscal year
of transfer, the Transferee's gross assets for financial reporting
purposes exceed $100 million and its net assets for financial reporting
purposes exceed $10 million. For purposes of the preceding sentence, the
gross assets and net assets of a Transferee do not include any
obligation of any Related Person, as defined below, or any other asset
if a principal purpose for holding or acquiring the other asset is to
permit the Transferee to satisfy the conditions of this paragraph 15(a);
(ii) The Transferee is an Eligible Corporation, as defined below, and
hereby agrees that any subsequent transfer of the interest will be to
another Eligible Corporation in a transaction that satisfies this
Transfer Affidavit, including this paragraph 15(a); and (iii) The
Transferee has not given the Transferor any reason to know that the
Transferee will not honor the restrictions on subsequent transfers of
the residual interest or that the Transferee cannot or will not pay any
taxes associated with the residual interest; or
I-2
(b)(i) The Transferee is a United States Person; (ii) The present
value of the anticipated tax liabilities associated with holding the
residual interest does not exceed the sum of: (A) The present value of
any consideration given to the Transferee to acquire the interest; (B)
The present value of the expected future distributions on the interest;
and (C) The present value of the anticipated tax savings associated with
holding the interest as any REMIC generates losses; and (iii) For
purposes of calculating the aforementioned present values: (A) The
transferee has assumed that it pays tax at a rate equal to the highest
rate of tax specified in Code Section 11(b)(1) (unless the Transferee
has been subject to the alternative minimum tax under Code Section 55 in
the preceding two years and will compute its taxable income in the
current taxable year using the alternative minimum tax rate, in which
case the Transferee can assume that it pays tax at the rate specified in
Code Section 55(b)(1)(B) provided the Transferee states in this Transfer
Affidavit that it is using such alternate rate and that has been subject
to the alternative minimum tax under Code Section 55 in the preceding
two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate):and (B) The Transferee uses
a discount rate equal to the Federal short-term rate prescribed by
section 1274(d) for the month of the transfer and the compounding period
used by the Transferee.
The term "Eligible Corporation" means any domestic C corporation (as
defined in section 1361(a)(2) of the Code) other than a corporation which is
exempt from, or is not subject to, tax under section 11 of the Code, an entity
described in section 851(a) or 856(a) of the Code, a REMIC; or an organization
to which part I, subchapter T, chapter 1, subtitle A of the Code applies. The
Term "Related Person" means any person that bears a relationship to the
Transferee enumerated in section 267(b) or 707(b)(1) of the Code, using "20
percent" instead of "50 percent" where it appears under the provisions; or is
under common control (within the meaning of section 52(a) and (b) of the Code)
with the Transferee.
15. Either (i) the Transferee is not an employee benefit plan that is
subject to ERISA or a plan that is subject to Section 4975 of the Code, and
the Transferee is not acting on behalf of or with plan assets of such a plan;
or (ii) the Transferee is an insurance company that is investing funds
contained in an "insurance company general account" (as such term is defined
in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")
and the purchase and holding of the Class R Certificate satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60.
***
I-3
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by
its duly authorized officer and its corporate seal to be hereunto affixed,
duly attested, this day of , 20 .
_____________________________________________
Print Name of Transferee
By:__________________________________________
Name:
Title:
[Corporate Seal]
ATTEST:
[Assistant] Secretary
Personally appeared before me the above-named , known or proved to me to
be the same person who executed the foregoing instrument and to be the of the
Transferee, and acknowledged that he executed the same as his free act and
deed and the free act and deed of the Transferee.
Subscribed and sworn before me this day of , 20 .
_______________________________
NOTARY PUBLIC
My Commission expires the___ day of__________ ,
20__.
I-4
EXHIBIT 1
to EXHIBIT I
Certain Definitions
"Ownership Interest": As to any Certificate, any ownership interest in
such Certificate, including any interest in such Certificate as the Holder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Permitted Transferee": Any Person other than (i) the United States, any
State or political subdivision thereof, or any agency or instrumentality of
any of the foregoing, (ii) a foreign government, International Organization or
any agency or instrumentality of either of the foregoing, (iii) an
organization (except certain farmers' cooperatives described in Code Section
521) that is exempt from tax imposed by Chapter 1 of the Code (including the
tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to any
Restricted Certificate, (iv) a rural electric and telephone cooperatives
described in Code Section 1381(a)(2)(c), (v) an "electing large partnership"
as defined in Code Section 775 of (vi) a Person that is not a U.S. Person, and
(vii) any other Person so designated by the Depositor based upon an Opinion of
Counsel that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that certain Certificates are Outstanding. The terms "United States," "State"
and "International Organization" shall have the meanings set forth in Code
Section 7701 or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof if all of its activities are subject to tax, and, with the exception
of the FHLMC, a majority of its board of directors is not selected by such
governmental unit.
"Person": Any individual, corporation, partnership, joint venture,
limited liability company, bank, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Transfer": Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate, including the acquisition of a Certificate by the
Depositor.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
I-5
EXHIBIT 2
to EXHIBIT I
Section 5.02(c) of the Agreement
(c) Each Person who has or who acquires any Ownership Interest in
a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions, and the rights of each Person acquiring any Ownership Interest in
a Residual Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Permitted Transferee and
shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual
Certificate unless, in addition to the certificates required to be
delivered to the Trustee under subparagraph (b) above, the Trustee
shall have been furnished with an affidavit (a "Transfer
Affidavit") of the initial owner or the proposed transferee in the
form attached hereto as Exhibit I.
(iii) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (A) to obtain a
Transfer Affidavit from any other Person to whom such Person
attempts to Transfer its Ownership Interest in a Residual
Certificate, (B) to obtain a Transfer Affidavit from any Person
for whom such Person is acting as nominee, trustee or agent in
connection with any Transfer of a Residual Certificate and (C) not
to Transfer its Ownership Interest in a Residual Certificate or to
cause the Transfer of an Ownership Interest in a Residual
Certificate to any other Person if it has actual knowledge that
such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions
of this Section 5.02(c) shall be absolutely null and void and
shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(c), then the last
preceding Permitted Transferee shall be restored to all rights as
Holder thereof retroactive to the date of registration of Transfer
of such Residual Certificate. The Trustee shall be under no
liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by Section
5.02(b) and this Section 5.02(c) or for making any payments due on
such Certificate to the Holder thereof or taking any other action
with respect to such Holder under the provisions of this Agreement
so long as the Transfer was registered after receipt of the
Transfer Affidavit, Transferor Certificate and either the Rule
144A Letter or the Investment Letter. The Trustee shall be
entitled but not obligated to recover from any Holder of a
Residual Certificate that was in fact not a Permitted Transferee
at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on
such Residual Certificate at and after either such time. Any such
payments so recovered by the Trustee shall be paid and delivered
by the Trustee to the last preceding Permitted Transferee of such
Certificate.
(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
I-6
under Section 860E(e) of the Code as a result of a Transfer of an
Ownership Interest in a Residual Certificate to any Holder who is
not a Permitted Transferee.
I-7
EXHIBIT J
FORM OF TRANSFEROR CERTIFICATE
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificates we
certify that (a) we understand that the Certificates have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Act, (b) we have not offered or sold any Certificates to,
or solicited offers to buy any Certificates from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner
that would be deemed, or taken any other action which would result in, a
violation of Section 5 of the Act and (c) to the extent we are disposing of a
Class R Certificate, we have no knowledge the Transferee is not a Permitted
Transferee.
Very truly yours,
______________________________
Print Name of Transferor
By: ___________________________
Authorized Officer
J-1
EXHIBIT K
FORM OF INVESTMENT LETTER (NON-RULE 144A)
__________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
are an "accredited investor," as defined in Regulation D under the Act, and
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such acquisition or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account"
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) and the purchase and holding of such
Certificates are covered under Sections I and III of PTCE 95-60, (e) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (g) below), (f) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto, or
taken any other action which would result in a violation of Section 5 of the
Act, (g) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide an
opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any conditions for transfer set forth in the Pooling and
K-1
Servicing Agreement and (h) if we are a corporation purchasing the
Certificates in the State of California, we have a net worth of at least
$14,000,000 according to our most recent audited financial statements.
Very truly yours,
______________________________
Print Name of Transferee
By: ___________________________
Authorized Officer
K-2
EXHIBIT L
FORM OF RULE 144A LETTER
____________, 200__
IndyMac MBS, Inc.
000 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing, Transaction Management
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000-0000
Attention: Trust Administration, Series 200 -
Re: IndyMac MBS, Inc.
Mortgage Pass-Through Certificates, Series 200 -, Class
-------------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificates we
certify that (a) we understand that the Certificates are not being registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws and are being transferred to us in a transaction that is
exempt from the registration requirements of the Act and any such laws, (b) we
have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificates, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificates and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificates, (d) either (i) we are not an employee
benefit plan that is subject to the Employee Retirement Income Security Act of
1974, as amended, or a plan or arrangement that is subject to Section 4975 of
the Internal Revenue Code of 1986, as amended, nor are we acting on behalf of
any such plan or arrangement or using the assets of any such plan or
arrangement to effect such acquisition, or (ii) if the Certificates have been
the subject of an ERISA-Qualifying Underwriting, we are purchasing the
Certificates with funds contained in an "insurance company general account"
(as defined in Section V(e) of Prohibited Transaction Class Exemption 95-60
("PTCE 95-60")) and our purchase and holding of the Certificates satisfy the
requirements for exemptive relief under Sections I and III of PTCE 95-60, (e)
we have not, nor has anyone acting on our behalf offered, transferred,
pledged, sold or otherwise disposed of the Certificates, any interest in the
Certificates or any other similar security to, or solicited any offer to buy
or accept a transfer, pledge or other disposition of the Certificates, any
interest in the Certificates or any other similar security from, or otherwise
approached or negotiated with respect to the Certificates, any interest in the
Certificates or any other similar security with, any person in any manner, or
made any general solicitation by means of general advertising or in any other
manner, or taken any other action, that would constitute a distribution of the
Certificates under the Act or that would render the disposition of the
Certificates a violation of Section 5 of the Act or require registration
pursuant thereto, nor will act, nor has authorized or will authorize any
person to act, in such manner with respect to the Certificates, (f) we are a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Act ("Rule 144A") and have completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2, (g) we are aware that the
sale to us is being made in reliance on Rule 144A, (h) we are acquiring the
Certificates for our own account or for resale pursuant to Rule 144A and
further, understand that such Certificates
L-1
may be resold, pledged or transferred only (A) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own account or
for the account of a qualified institutional buyer to whom notice is given
that the resale, pledge or transfer is being made in reliance on Rule 144A, or
(B) pursuant to another exemption from registration under the Act and (i) if
we are a corporation purchasing the Certificates in the State of California,
we have a net worth of at least $14,000,000 according to our most recent
audited financial statements.
Very truly yours,
________________________
Print Name of Transferee
By:_______________________
Authorized Officer
L-2
ANNEX 1 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $ (1) in securities (except for the
excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A
and (ii) the Buyer satisfies the criteria in the category marked below.
___ Corporation, etc. The Buyer is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Buyer (a) is a national bank or banking
institution organized under the laws of any State, territory or
the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
___ Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto.
___ Broker-dealer. The Buyer is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company
whose primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, territory
or the District of Columbia.
---------
(1) Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
L-3
___ State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions, for
the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Buyer is an investment advisor
registered under the Investment Advisors Act of 1940.
___ Small Business Investment Company. Buyer is a small
business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
___ Business Development Company. Buyer is a business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of the
securities referred to in the preceding paragraph, except (i) where the Buyer
reports its securities holdings in its financial statements on the basis of
their market value, and (ii) no current information with respect to the cost
of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market. Further, in
determining such aggregate amount, the Buyer may have included securities
owned by subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under the Buyer's direction. However, such securities
were not included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties to the Certificates are
relying and will continue to rely on the statements made herein because one or
more sales to the Buyer may be in reliance on Rule 144A.
L-4
6. Until the date of purchase of the Rule 144A Securities, the
Buyer will notify each of the parties to which this certification is made of
any changes in the information and conclusions herein. Until such notice is
given, the Buyer's purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Buyer is a bank or savings and loan is provided above, the
Buyer agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
_____________________________________Date:
L-5
ANNEX 2 TO EXHIBIT L
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
Adviser.
2. In connection with purchases by Buyer, the Buyer is a
"qualified institutional buyer" as defined in SEC Rule 144A because (i) the
Buyer is an investment company registered under the Investment Company Act of
1940, as amended and (ii) as marked below, the Buyer alone, or the Buyer's
Family of Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year. For purposes of determining the amount of
securities owned by the Buyer or the Buyer's Family of Investment Companies,
the cost of such securities was used, except (i) where the Buyer or the
Buyer's Family of Investment Companies reports its securities holdings in its
financial statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been published.
If clause (ii) in the preceding sentence applies, the securities may be valued
at market.
___ The Buyer owned $ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
___ The Buyer is part of a Family of Investment Companies
which owned in the aggregate $ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed
by the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer will be in reliance on Rule
144A. In addition, the Buyer will only purchase for the Buyer's own account.
L-6
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase of the
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
_______________________________________
Print Name of Buyer
By:____________________________________
Name:
Title:
_______________________________________Date:
L-7
EXHIBIT M
REQUEST FOR RELEASE
(for Trustee)
IndyMac MBS, Inc.
Mortgage Pass-Through Certificates
Series 200_-_
Loan Information
Name of Mortgagor:
Servicer
Loan No.: _________________________
Trustee
Name: _________________________
Address: _________________________
_________________________
Trustee
Mortgage File No.:
The undersigned Servicer hereby acknowledges that it has received from
Deutsche Bank National Trust Company, as Trustee for the Holders of Mortgage
Pass-Through Certificates, of the above-referenced Series, the documents
referred to below (the "Documents"). All capitalized terms not otherwise
defined in this Request for Release shall have the meanings given them in the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
relating to the above-referenced Series among the Trustee, IndyMac Bank,
F.S.B., as Seller and Servicer and IndyMac MBS, Inc., as Depositor.
(_) Mortgage Note dated , 20 , in the original principal sum of $ , made by
. payable to, or ____________ __ __________ __________________ endorsed
to the order of, the Trustee.
(_) Mortgage recorded on as instrument no. in the County Recorder's Office
of the County _________________ _____________________ of , State of in
book/reel/docket of official records at page/image ___________________
_______________ ________________ . ________________
(_) Deed of Trust recorded on as instrument no. in the County Recorder's
Office of the __________________ _________________ County of , State of
in book/reel/docket of official records at page/image ________________
_______________ _______________ . ________________
(_) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on as
instrument no. in the _________________ ____________ County Recorder's
Office of the County of , State of in book/reel/docket of __________
________________ _______________ official records at page/image .
_______________
(_) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
M-1
The undersigned Servicer hereby acknowledges and agrees as follows:
(1) The Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by, any claim,
liens, security interest, charges, writs of attachment or other
impositions nor shall the Servicer assert or seek to assert any
claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when
the need therefor no longer exists, unless the Mortgage Loan
relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Certificate Account and except
as expressly provided in the Agreement.
(4) The Documents and any proceeds thereof, including any
proceeds of proceeds, coming into the possession or control of the
Servicer shall at all times be earmarked for the account of the
Trustee, and the Servicer shall keep the Documents and any
proceeds separate and distinct from all other property in the
Servicer's possession, custody or control.
INDYMAC BANK, F.S.B.
By: ___________________________
Name:
Title:
Date: , 20
M-2
EXHIBIT N
REQUEST FOR RELEASE OF DOCUMENTS
To: Deutsche Bank National Trust Company
Attn: Mortgage Custody Services
Re: The Pooling and Servicing Agreement dated June 1, 2006 among IndyMac
Bank, F.S.B. as Servicer, Inc, IndyMac MBS, Inc. and Deutsche
Bank National Trust Company, as Trustee
____________________________________________________________________
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by
you as Trustee for IndyMac MBS, Inc., we request the release of the Mortgage
Loan File for the Mortgage Loan(s) described below, for the reason indicated.
FT Account #: Pool #:
Mortgagor's Name, Address and Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
_______1. Mortgage Loan paid in full (IndyMac hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated (IndyMac hereby certifies that
all proceeds of foreclosure, insurance, or other
liquidation have been finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as an additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked, upon
return of all of the above documents to you as Trustee, please acknowledge
your receipt by signing in the space indicated below, and returning this form.
N-1
INDYMAC BANK, F.S.B.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
N-2
EXHIBIT O
[Reserved]
X-0
Xxxxxxx X-0
[On File with the Trustee]
P-1-1
Exhibit P-2
[On File with the Trustee]
P-2-1
EXHIBIT Q
[Reserved]
Q-1
EXHIBIT R
FORM OF PERFORMANCE CERTIFICATION
(Trustee)
Re: The Pooling and Servicing Agreement dated as of June 1, 2006 (the
"Pooling and Servicing Agreement") among IndyMac MBS, Inc., as
Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and the
undersigned, as Trustee (the "Trustee")
I, ________________________________, the _______________________ of the
Trustee, certify to the Depositor and the Servicer, and their officers, with
the knowledge and intent that they will rely upon this certification, that:
I have reviewed the report on assessment of the Trustee's
compliance with the servicing criteria set forth in Item 1122(d) of
Regulation AB (the "Servicing Criteria"), provided in accordance with
Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Item 1122 of Regulation AB (the
"Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), all reports on Form 10-D containing statements to
certificateholders filed in respect of the period included in the year
covered by the annual report of the Trust Fund (collectively, the
"Distribution Date Statements");
(a) Assuming the accuracy and completeness of the information
delivered to the Trustee by the Servicer as provided in the
Pooling and Servicing Agreement and subject to paragraph
(iv) below, to its knowledge the distribution information
determined by the Trustee and set forth in the Distribution
Date Statements contained in all Form 10-D's included in the
year covered by the annual report of such Trust on Form 10-K
for the calendar year 200[ ], is complete and does not
contain any material misstatement of fact as of the last day
of the period covered by such annual report;
(b) Based solely on the information delivered to the Trustee by
the Servicer as provided in the Pooling and Servicing
Agreement, the distribution information required under the
Pooling and Servicing Agreement to be contained in the Trust
Fund's Distribution Date Statements, is included in such
Distribution Date Statements;
(c) The Trustee is not certifying as to the accuracy,
completeness or correctness of the information which it
received from the Servicer and did not independently verify
or confirm the accuracy, completeness or correctness of the
information provided by the Servicer;
(d) I am responsible for reviewing the activities performed by
the Trustee as a person "performing a servicing function"
under the Pooling and Servicing Agreement, and based on my
knowledge and the compliance review conducted in preparing
the Servicing Assessment and except as disclosed in the
Servicing Assessment or the Attestation Report, the Trustee
has fulfilled its obligations under the Pooling and
Servicing Agreement; and
R-2-1
(e) The Servicing Assessment and Attestation Report required to
be provided by the Trustee and by Subcontractor, if any,
pursuant to the Pooling and Servicing Agreement, have been
provided to the Servicer and the Depositor. Any material
instances of noncompliance described in such reports have
been disclosed to the Servicer and the Depositor. Any
material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date: _________________________
By: ______________________________
Name:
Title:
R-2-2
EXHIBIT S
FORM OF SERVICING CRITERIA TO BE ADDRESSED IN
ASSESSMENT OF COMPLIANCE STATEMENT
Where there are multiple checks for criteria the attesting party will identify
in their management assertion that they are attesting only to the portion of
the distribution chain they are responsible for in the related transaction
agreements.
----------------- ----------------------------------------- --------- ---------- ------------
Reg AB Reference Servicing Criteria Servicer Trustee Notes
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(i) Policies and procedures are instituted X X
to monitor any performance or other
triggers and events of default in
accordance with the transaction
agreements.
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(ii) If any material servicing activities X X
are outsourced to third parties,
policies and procedures are instituted
to monitor the third party's
performance and compliance with such
servicing activities.
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(iii) Any requirements in the transaction NA
agreements to maintain a back-up
servicer for the Pool Assets are
maintained.
----------------- ----------------------------------------- --------- ---------- ------------
1122(d)(1)(iv) A fidelity bond and errors and X
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.
----------------- ----------------------------------------- --------- ---------- ------------
S-1
----------------- --------------------------------------- ----------- ----------- -----------
Reg AB Reference Servicing Criteria Primary Trustee Notes
Servicer
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(i) Payments on pool assets are deposited X X
into the appropriate custodial bank
accounts and related bank clearing
accounts no more than two business
days following receipt, or such other
number of days specified in the
transaction agreements.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(ii) Disbursements made via wire transfer X X
on behalf of an obligor or to an
investor are made only by authorized
personnel.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(iii) Advances of funds or guarantees X
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.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(iv) The related accounts for the X X
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.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(v) Each custodial account is maintained X X
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.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(vi) Unissued checks are safeguarded so as X to
prevent unauthorized access.
----------------- --------------------------------------- ----------- ----------- -----------
1122(d)(2)(vii) Reconciliations are prepared on a X X
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.
----------------- --------------------------------------- ----------- ----------- -----------
S-2
----------------- ---------------------------------------- ---------- ---------- -------------
Reg AB Reference Servicing Criteria Servicer Trustee Notes
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(i) Reports to investors, including those X X
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the
terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules
and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of Pool Assets serviced by
the Servicer.
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(ii) Amounts due to investors are allocated X X
and remitted in accordance with
timeframes, distribution priority and
other terms set forth in the
transaction agreements.
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(iii) Disbursements made to an investor are X X
posted within two business days to the
Servicer's investor records, or such
other number of days specified in the
transaction agreements.
----------------- ---------------------------------------- ---------- ---------- -------------
1122(d)(3)(iv) Amounts remitted to investors per the X X
investor reports agree with cancelled
checks, or other form of payment, or
custodial bank statements.
----------------- ---------------------------------------- ---------- ---------- -------------
S-3
EXHIBIT T
[FORM OF] LIST OF ITEM 1119 PARTIES
ASSET BACKED CERTIFICATES
Series 200_-__
[Date]
Party Contact Information
T-1
EXHIBIT U
[FORM OF] XXXXXXXX-XXXXX CERTIFICATION
(Replacement of Servicer)
Re: IndyMac INDX Mortgage Loan Trust 2006-AR2
The undersigned Servicer hereby certifies to the Depositor and its
officers, directors and Affiliates (collectively, the "Certification Parties")
as follows, with the knowledge and intent that the Certification Parties will
rely on this Certification in connection with the certification concerning the
Trust Fund to be signed by an officer of the Depositor and submitted to the
Securities and Exchange Commission pursuant to the Xxxxxxxx-Xxxxx Act of 2002:
1. I have reviewed the servicer compliance statement of the Servicer
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the
Servicer during 200[ ] that were delivered by the Servicer to the Trustee
pursuant to the Agreement (collectively, the "Servicing Information");
2. Based on my knowledge, the Servicing Information, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Servicing Information;
3. Based on my knowledge, all of the Servicing Information required to
be provided by the Servicer under the Agreement has been provided to the
Depositor or the Trustee, as applicable;
4. I am responsible for reviewing the activities performed by the
Servicer as servicer under the Servicing Agreement (the "Pooling and Servicing
Agreement") relating to the above-referenced Series, among IndyMac MBS, Inc.,
as Depositor, IndyMac Bank, F.S.B., as Seller and Servicer, and Deutsche Bank
National Trust Company, as Trustee and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and except
as disclosed in the Compliance Statement, the Pooling and Servicing Assessment
or the Attestation Report, the Servicer has fulfilled its obligations under
the Agreement in all material respects; and
5. The Compliance Statement required to be delivered by the Servicer
pursuant to the Pooling and Servicing Agreement, and the Servicing Assessment
and Attestation Report required to be provided by the Servicer and by any
Reporting Subcontractor pursuant to the Agreement, have been provided to the
Depositor. Any material instances of noncompliance described in such reports
have been
U-1
disclosed to the Depositor. Any material instance of noncompliance with the
Servicing Criteria has been disclosed in such reports.
[SERVICER]
By:_______________________________
Name:
Title:
Date: ___________________________
U-1
