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EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Between
INDYMAC BANK, F.S.B.,
Seller
and
INDYMAC MBS, INC.,
Purchaser
Dated as of September 29, 2006
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS..............................................
1
Section 1.01.
Definitions........................................ 1
ARTICLE II SALE OF
MORTGAGE LOANS BY SELLER; PAYMENT OF PURCHASE
PRICE....................................................
1
Section 2.01. Sale of Mortgage
Loans............................. 1
Section 2.02. Obligations of Seller
Upon Sale.................... 2
Section 2.03. Payment of Purchase
Price for the Mortgage Loans... 4
ARTICLE III REPRESENTATIONS
AND WARRANTIES OF SELLER; REMEDIES
FOR
BREACH............................................... 5
Section 3.01. Seller Representations
and Warranties Relating to
the Mortgage Loans................................. 5
Section 3.02. Seller Representations
and Warranties - General.... 6
ARTICLE IV SELLER'S
COVENANTS....................................... 8
Section 4.01. Covenants of the
Seller............................ 8
ARTICLE V
TERMINATION..............................................
8
Section 5.01.
Termination........................................ 8
ARTICLE VI
MISCELLANEOUS PROVISIONS.................................
9
Section 6.01.
Amendment.......................................... 9
Section 6.02. Governing
Law...................................... 9
Section 6.03.
Notices............................................ 9
Section 6.04. Severability of
Provisions......................... 9
Section 6.05.
Counterparts....................................... 10
Section 6.06. Further
Agreements................................. 10
Section 6.07. Intention of the
Parties........................... 10
Section 6.08. Successors and
Assigns: Assignment of Agreement.... 10
Section 6.09.
Survival........................................... 11
Schedule I Mortgage
Loan Schedule
i
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MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of September 29, 2006 (this
"Agreement"), between IndyMac Bank, F.S.B. (the "Seller") and
IndyMac MBS, Inc.
(the "Purchaser").
W I T N E S S E T H
WHEREAS,
the Seller is the owner of the notes or other evidence of
indebtedness relating to certain home equity line of credit loans
(the "Mortgage
Notes") indicated on Schedule I hereto (the "Mortgage Loan
Schedule") and the
Related Documents (as defined in Section 2.02 below, and together
with the
Mortgage Notes, the "Mortgage Loans"); and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the
"Mortgages") on the related mortgaged properties (the "Mortgaged
Properties")
securing the Mortgage Loans, including rights to (a) any property
acquired by
foreclosure or deed in lieu of foreclosure or otherwise and (b) the
proceeds of
any insurance policies covering the Mortgage Loans or the Mortgaged
Properties
or the obligors on the Mortgage Loans; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage
Loans
to the Purchaser pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Sale and Servicing Agreement dated
as
of September 14, 2006 (the "Sale and Servicing Agreement") among
the Purchaser,
as the seller, the Seller, as the servicer, IndyMac Home Equity
Mortgage Loan
Asset-Backed Trust, Series 2006-H3 (the "Trust"), and Deutsche Bank
National
Trust Company, as the indenture trustee (the "Indenture Trustee"),
the Purchaser
will convey the Mortgage Loans to the Trust and the Servicer will
service the
Mortgage Loans owned by the Trust.
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section
1.01. Definitions. All capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Sale and
Servicing
Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS BY SELLER; PAYMENT OF PURCHASE PRICE
Section
2.01. Sale of Mortgage Loans. The Seller, concurrently with the
execution and delivery of this Agreement, does hereby sell, assign,
set over,
and otherwise convey to the Purchaser, without recourse, all of its
right, title
and interest in and to (i) each Mortgage Loan listed on the
Mortgage Loan
Schedule on the Closing Date and the related Mortgage File
(including the
related Mortgage Note and Mortgage), including its Cut-off Date
Principal
Balance (including all Additional Balances resulting from Draws
made pursuant to
the related Mortgage Note prior to the termination of the Trust)
and all related
collections in respect of such Mortgage Loan received after the
Cut-off Date
(excluding any scheduled interest payments due on or prior to the
Cut-off Date);
provided, however, that the Purchaser does not assume any
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obligation under any Mortgage Note to fund any such future Draws,
and the
Purchaser will not be obligated or permitted to fund any such
future Draws);
(ii) related Mortgaged Property which secured such Mortgage Loan
and which has
been acquired by foreclosure or deed in lieu of foreclosure; (iii)
its rights
under any related insurance policies maintained in respect of the
Mortgage Loans
(including any Insurance Proceeds); and (iv) all proceeds of any of
the
foregoing.
Section
2.02. Obligations of Seller Upon Sale. (a) In connection with
the
transfer pursuant to Section 2.01 hereof, the Seller further
agrees, at its own
expense, on or prior to the Closing Date, (a) to indicate in its
books and
records that the Mortgage Loans have been sold to the Purchaser or
to the
Indenture Trustee as assignee of the Purchaser pursuant to this
Agreement and
(b) to deliver to the Purchaser (or its designee, the Indenture
Trustee) a
computer file containing a true and complete list of all such
Mortgage Loans
specifying, among other things, for each such Mortgage Loan, as of
the Cut-off
Date, (1) its account number and (2) the Cut-off Date Principal
Balance. Such
file, which forms a part of Exhibit A to the Sale and Servicing
Agreement, shall
also be marked as Schedule I to this Agreement and is hereby
incorporated into
and made a part of this Agreement.
(b) In
connection with such transfer by the Seller, the Seller agrees
to:
(i) on behalf of the Purchaser, on or before the Closing Date,
deliver to
and deposit with the Purchaser (or its designee, the Indenture
Trustee),
the Mortgage Loan Schedule in computer readable format; and
(ii) on behalf of the Purchaser, deliver to and deposit with
the
Purchaser
(or its designee, the Indenture Trustee) the Mortgage Note in
respect of
each Mortgage Loan together with the following documents
relating
to each such Mortgage Loan (the "Related Documents") on or
before
the
Closing Date. The Mortgage Note and the Related Documents shall be
in
the
following form:
(A) the original Mortgage Note, endorsed in blank, or a copy
of such original Mortgage Note with an accompanying Lost Note
Affidavit;
(B) if such Mortgage Loan is not a MERS Mortgage Loan, the
original Assignment of Mortgage from the Seller to "Deutsche
Bank
National Trust Company, as Indenture Trustee for IndyMac Home
Equity
Mortgage Loan Asset-Backed Trust, Series 2006-H3", which
assignment
shall be in form and substance acceptable for recording;
(C) the original Mortgage, with evidence of recording thereon,
provided, that if the original Mortgage has been delivered for
recording to the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located but has
not
yet been returned to the Seller by such recording office, the
Seller
shall deliver to the Indenture Trustee a certified true copy of
such
original Mortgage so certified by the Seller, together with a
certificate of the Seller certifying that such original Mortgage
has
been so delivered to such recording office; in all such
instances,
the Seller shall deliver or cause to be
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delivered the original recorded Mortgage to the Indenture
Trustee
promptly upon receipt of the original recorded Mortgage;
(D) intervening
assignments, if any, with evidence of
recording thereon, provided that if such intervening assignment
has
been delivered for recording to the appropriate public
recording
office of the jurisdiction in which the Mortgaged Property is
located but has not yet been returned to the Seller by such
recording office, the Seller shall deliver to the Indenture
Trustee
a certified true copy of such intervening assignment so certified
by
the Seller, together with a certificate of the Seller
certifying
that such intervening assignment has been so delivered to such
recording office; in all such instances, the Seller shall deliver
or
cause to be delivered the original intervening assignment to
the
Indenture Trustee promptly upon receipt of the original
intervening
assignment; and
(E) originals of all assumption and modification agreements,
if
any,
provided, however, that as to any Mortgage Loan, if as evidenced by
an Opinion
of Counsel delivered to and in form and substance satisfactory to
the Indenture
Trustee, the Insurer and the Rating Agencies, (x) an optical image
or other
representation of the related documents specified in clauses
(ii)(C), (D) and
(E) above is enforceable in the relevant jurisdictions to the same
extent as the
original of such document and (y) such optical image or other
representation
does not impair the ability of an owner of such Mortgage Loan to
transfer or
perfect its interest in such Mortgage Loan, such optical image or
other
representation may be delivered as required in clause (ii)
above.
The Seller
hereby confirms to the Purchaser that it has made the
appropriate entries in its general accounting records, to indicate
clearly and
unambiguously that such Mortgage Loans have been sold to the
Purchaser by the
Seller, then subsequently sold by the Purchaser to the Trust and
constitute part
of the Trust in accordance with the terms of the Sale and Servicing
Agreement.
The
Purchaser hereby acknowledges its acceptance of all right, title
and
interest to the Mortgage Loans and other property, now existing and
hereafter
created, conveyed to it pursuant to Section 2.01 above.
The Seller
acknowledges that the Indenture Trustee is required to review
the Mortgage Notes and the Related Documents pursuant to Sections
2.01(e) and
(f) of the Sale and Servicing Agreement and if the Indenture
Trustee finds any
document or documents not to have been properly executed, or to be
missing or to
be defective in any material respect, the Indenture Trustee is
required to
notify the Seller. If the Seller does not within the time period
specified in
Section 2.02(b) of the Sale and Servicing Agreement correct or cure
such
omission or document deficiency, the Seller shall either repurchase
such
relevant Mortgage Loan directly from the Trust or substitute an
Eligible
Substitute Mortgage Loan for such Mortgage Loan, in either case,
within the time
frame and in the manner specified in Section 2.02(b) of the Sale
and Servicing
Agreement.
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The
parties hereto expressly intend that the transaction set forth
herein
be a sale by the Seller to the Purchaser of all the Seller's right,
title and
interest in and to the Mortgage Loans described above. It is,
further, not the
parties' intent that such conveyance be deemed a pledge of the
Mortgage Loans by
the Seller to the Purchaser to secure a debt or other obligation of
the Seller.
However, in the event that, notwithstanding the parties' intent,
the transaction
set forth herein is deemed not to be a sale, the Seller hereby
grants to the
Purchaser a security interest in all of the Seller's right, title
and interest
in, to and under the Mortgage Loans, whether now existing or
hereafter created,
to secure all of the Seller's obligations hereunder; and this
Agreement shall
constitute a security agreement under applicable law, including,
without
limitation, Articles 8 and 9 of the Uniform Commercial Code in
effect in the
applicable state. The Seller and the Purchaser shall, to the extent
consistent
with this Agreement, take such actions as may be necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be deemed to be a perfected security
interest of
first priority under applicable law and will be maintained as such
throughout
the term of the Sale and Servicing Agreement.
Without
limiting the generality of the foregoing, the Seller hereby
agrees
to take such actions described in Section 2.01(a) of the Sale and
Servicing
Agreement as are necessary to complete and file any UCC Financing
Statements and
any continuation statements required to perfect and protect the
Purchaser's
interest in the Mortgage Loans.
Section
2.03. Payment of Purchase Price for the Mortgage Loans. (a) In
consideration of the sale of the Mortgage Loans from the Seller to
the Purchaser
on or before the Closing Date, the Purchaser agrees to pay to the
Seller on the
Closing Date by transfer of immediately available funds, an amount
equal to
$495,734,584.00. The Purchaser shall initially retain the Class M1
Notes, the
Class M2 Notes, the Class B Certificates, the Class L Certificates
and the Class
R Certificates and any value attributable thereto shall be deemed a
capital
contribution by the Seller to the Purchaser.
(b) Each
Mortgage Note permits the related Mortgagor to make Draws
against
its Mortgage Loan. Such Draws will create Additional Balances,
which Additional
Balances the Seller shall sell to the Purchaser as of the Closing
Date, but
which shall be actually transferred from the Seller to the
Purchaser and from
the Purchaser to the Trust from time to time as such Draws are
made. In
consideration of the sale of Additional Balances by the Seller to
the Purchaser
from time to time, the Purchaser agrees to pay the Seller on the
date any such
Additional Balance is delivered the purchase price for such
Additional Balance,
which shall be an amount equal to the outstanding principal balance
of such
Additional Balance. The Purchaser shall fund the purchase price of
any
Additional Balance in cash, to the extent then available from (a)
any Principal
Collections on the Mortgage Loans used by the Trust to purchase
Additional
Balances from the Purchaser pursuant to Section 2.01(c) of the Sale
and
Servicing Agreement, and (b) any amounts remitted to
