Exhibit 4.1
INDYMAC MBS, INC.,
Depositor
[INDYMAC BANK, F.S.B.],
Seller and Servicer
and
[
],
Trustee
--------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of [ ]
--------------------------------------
[RESIDENTIAL
ASSET SECURITIZATION TRUST] [INDYMAC INDX MORTGAGE LOAN TRUST]
Series
20__-[A][AR][IP]
MORTGAGE PASS-THROUGH CERTIFICATES
Series 20__-[ ]
<PAGE>
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Rules of
Construction......................................I-34
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
SECTION 2.01.
Conveyance of Mortgage Loans...............................II-1
SECTION 2.02.
Acceptance by the Trustee of the Mortgage Loans............II-5
SECTION 2.03.
Representations, Warranties and Covenants of the Seller
and the Servicer...........................................II-8
SECTION 2.04.
Representations and Warranties of the Depositor as to
the Mortgage Loans........................................II-10
SECTION 2.05. Delivery
of Opinion of Counsel in Connection with
Substitutions and Repurchases.............................II-11
SECTION 2.06.
Execution and Delivery of Certificates....................II-11
SECTION 2.07. REMIC
Matters.............................................II-11
SECTION 2.08.
Covenants of the Servicer.................................II-12
SECTION 2.09.
Subsequent Transfers......................................II-12
SECTION 2.10.
Mandatory Prepayment......................................II-16
ARTICLE III
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 3.01. Servicer
to Service Mortgage Loans........................III-1
SECTION 3.02.
[Reserved]................................................III-2
SECTION 3.03. Rights
of the Depositor and the Trustee in Respect of
the Servicer..............................................III-2
SECTION 3.04.
[Reserved]................................................III-2
SECTION 3.05. Trustee
to Act as Servicer................................III-2
SECTION 3.06.
Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account;
Distribution Account; Pre-Funding Accounts; Capitalized
Interest Accounts.........................................III-2
SECTION 3.07.
Collection of Taxes, Assessments and Similar Items;
Escrow Accounts...........................................III-8
SECTION 3.08. Access
to Certain Documentation and Information
Regarding the Mortgage Loans..............................III-9
SECTION 3.09.
Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Excess Reserve Fund Account..III-9
i
<PAGE>
SECTION 3.10.
Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies.......................................III-11
SECTION 3.11.
Enforcement of Due-On-Sale Clauses; Assumption
Agreements...............................................III-12
SECTION 3.12.
Realization Upon Defaulted Mortgage Loans; Repurchase of
Certain Mortgage Loans...................................III-14
SECTION 3.13. Trustee
to Cooperate; Release of Mortgage Files..........III-16
SECTION 3.14.
Documents, Records and Funds in Possession of the
Servicer to be Held for the Trustee......................III-17
SECTION 3.15.
Servicing Compensation...................................III-18
SECTION 3.16. Access
to Certain Documentation..........................III-18
SECTION 3.17. Annual
Statement as to Compliance........................III-18
SECTION 3.18.
[Reserved]...............................................III-19
SECTION 3.19. Errors
and Omissions Insurance; Fidelity Bonds...........III-19
SECTION 3.20.
Notification of Adjustments..............................III-19
SECTION 3.21.
Covenants and Representations of the Servicer Regarding
Prepayment Charges.......................................III-20
ARTICLE IV
DISTRIBUTIONS AND ADVANCES BY THE SERVICER
SECTION 4.01.
Advances...................................................IV-1
SECTION 4.02.
Priorities of Distribution.................................IV-2
SECTION 4.03. Monthly
Statements to Certificateholders...................IV-4
SECTION 4.04.
[Reserved].................................................IV-5
SECTION 4.05.
[Reserved].................................................IV-5
SECTION 4.06.
[Reserved].................................................IV-5
SECTION 4.07. Certain
Matters Relating to the Determination of LIBOR.....IV-5
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The
Certificates............................................V-1
SECTION 5.02.
Certificate Register; Registration of Transfer and
Exchange of Certificates....................................V-1
SECTION 5.03.
Mutilated, Destroyed, Lost or Stolen Certificates...........V-6
SECTION 5.04. Persons
Deemed Owners.......................................V-6
SECTION 5.05. Access
to List of Certificateholders' Names and
Addresses...................................................V-6
SECTION 5.06.
Maintenance of Office or Agency.............................V-7
ARTICLE VI
THE DEPOSITOR AND THE SERVICER
SECTION 6.01.
Respective Liabilities of the Depositor and the Servicer...VI-1
SECTION 6.02. Merger
or Consolidation of the Depositor or the Servicer...VI-1
ii
<PAGE>
SECTION 6.03.
Limitation on Liability of the Depositor, the Seller,
the Servicer and Others....................................VI-1
SECTION 6.04.
Limitation on Resignation of the Servicer..................VI-2
SECTION 6.05.
Inspection.................................................VI-2
ARTICLE VII
DEFAULT
SECTION 7.01. Events
of Default.........................................VII-1
SECTION 7.02. Trustee
to Act; Appointment of Successor..................VII-3
SECTION 7.03.
Notification to Certificateholders........................VII-4
ARTICLE VIII
Concerning the Trustee
SECTION 8.01. Duties
of the Trustee....................................VIII-1
SECTION 8.02. Certain
Matters Affecting the Trustee....................VIII-2
SECTION 8.03. Trustee
Not Liable for Certificates or Mortgage Loans....VIII-3
SECTION 8.04. Trustee
May Own Certificates.............................VIII-3
SECTION 8.05.
Trustee's Fees and Expenses..............................VIII-4
SECTION 8.06.
Eligibility Requirements for the Trustee.................VIII-4
SECTION 8.07.
Resignation and Removal of the Trustee...................VIII-5
SECTION 8.08.
Successor Trustee........................................VIII-6
SECTION 8.09. Merger
or Consolidation of the Trustee...................VIII-6
SECTION 8.10.
Appointment of Co-Trustee or Separate Trustee............VIII-7
SECTION 8.11. Tax
Matters..............................................VIII-8
SECTION 8.12. Periodic
Filings........................................VIII-11
ARTICLE IX
Termination
SECTION 9.01.
Termination upon Liquidation or Purchase of the Mortgage
Loans......................................................IX-1
SECTION 9.02. Final
Distribution on the Certificates.....................IX-2
SECTION 9.03.
Additional Termination Requirements........................IX-3
ARTICLE X
Miscellaneous Provisions
SECTION 10.01.
Amendment...................................................X-1
SECTION 10.02. Recordation of Agreement;
Counterparts......................X-3
SECTION 10.03. Governing
Law...............................................X-3
SECTION 10.04. Intention of
Parties........................................X-3
SECTION 10.05.
Notices.....................................................X-4
SECTION 10.06. Severability of
Provisions..................................X-5
iii
<PAGE>
SECTION 10.07.
Assignment..................................................X-5
SECTION 10.08. Limitation on Rights of
Certificateholders..................X-5
SECTION 10.09. Inspection and Audit
Rights.................................X-6
SECTION 10.10. Certificates Nonassessable and Fully
Paid...................X-6
SECTION 10.11. Official
Record.............................................X-6
SECTION 10.12. Protection of
Assets........................................X-6
SECTION 10.13. Qualifying Special Purpose
Entity...........................X-7
ARTICLE XI
EXCHANGE ACT REPORTING
SECTION 11.01. Filing
Obligations.........................................XI-1
SECTION 11.02. Form 10-D
Filings..........................................XI-1
SECTION 11.03. Form 8-K
Filings...........................................XI-2
SECTION 11.04. Form 10-K
Filings..........................................XI-2
SECTION 11.05. Sarbanes-Oxley
Certification...............................XI-3
SECTION 11.06. Form 15
Filing.............................................XI-3
SECTION 11.07. Report on Assessment of Compliance and
Attestation.........XI-3
SECTION 11.08. Use of
Subcontractors......................................XI-5
SECTION 11.09.
Amendments.................................................XI-5
iv
<PAGE>
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:
Planned Balanced
Schedules................................S-IV-1
EXHIBITS
Exhibit A: Form of Class A,
M and B Certificate.........................A-1
Exhibit B:
[Reserved]...................................................B-1
Exhibit C: Form of Class R
Certificate..................................C-1
Exhibit D: Form of Class X
Certificate..................................D-1
Exhibit E: Form of Reverse
of Certificates..............................E-1
Exhibit F:
[Reserved]...................................................F-1
Exhibit G: Form of Initial
Certification of Trustee.....................G-1
Exhibit H: Form of Final
Certification of Trustee.......................H-1
Exhibit I: Form of Transfer
Affidavit...................................I-1
Exhibit J:
Form of
Transferor Certificate...............................J-1
Exhibit K:
[Reserved]...................................................K-1
Exhibit L: Form of Rule
144A Letter.....................................L-1
Exhibit M: Form of Request
for Release (for Trustee)....................M-1
Exhibit N: Form of Request
for Release (Mortgage Loan Paid in Full,
Repurchased and
Released)....................................N-1
Exhibit O: Form of
Subsequent Transfer Agreement........................O-1
v
<PAGE>
THIS POOLING AND SERVICING AGREEMENT, dated as of [
],
among INDYMAC MBS, INC., a Delaware corporation, as depositor (the
"Depositor"),
[INDYMAC BANK, F.S.B.] ("[IndyMac]"), a federal savings bank, as
seller (in such
capacity, the "Seller") and as servicer (in such capacity, the
"Servicer"), and
[ ], a banking corporation organized under the laws of the State of
[ ], as
trustee (the "Trustee"),
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
PRELIMINARY STATEMENT
The
Trustee shall elect that the Trust Fund be treated for federal
income
tax purposes as comprising two REMICs (each a "REMIC" or, in the
alternative,
the Lower Tier REMIC and the Upper Tier REMIC, respectively). Each
Certificate,
other than the Class R Certificate, represents ownership of a
regular interest
in the Upper Tier REMIC for purposes of the REMIC Provisions. The
Class R
Certificate represents ownership of the sole class of residual
interest in each
of the Lower Tier REMIC and the Upper Tier REMIC for purposes of
the REMIC
Provisions. The Startup Day for each REMIC described herein is the
Closing Date.
The latest possible maturity date for each Certificate is the
latest date
referenced in Section 9.01. The Upper Tier REMIC shall hold as
assets the
several classes of uncertificated Lower Tier Regular Interests, set
out below.
Each such Lower Tier Regular Interest is hereby designated as a
regular interest
in the Lower Tier REMIC.
Lower Tier Class
Lower Tier Initial
Lower Tier
Designation
Interest Rate Principal
Amount
----------------
------------- ------------------
Class LT-C
(1)
$
Class LT-AF-1
(1)
Class LT-MF-1
(1)
Class LT-MF-2
(1)
Class LT-BF
(1)
Class LT-D
(2)
Class LT-AV-1
(2)
Class LT-MV-1
(2)
Class LT-MV-2
(2)
Class LT-BV
(2)
Class LT-E
(1)
Class LT-R
(3)
(3)
(1) The interest
rate with respect to any Distribution Date for these
interests
is a per annum variable rate equal to the Group 1 WAC Cap.
(2) The interest
rate with respect to any Distribution Date for these
interests
is a per annum variable rate equal to the Group 2 WAC Cap.
1
<PAGE>
(3) The Class
LT-R Interest is the sole class of residual interest in the
Lower Tier
REMIC and it does not have a principal amount or an interest
rate.
The Lower
Tier REMIC shall hold as assets all of the assets included in
the Trust Fund other than the Group 1 Pre-Funding Account, the
Group 2
Pre-Funding Account, the Group 1 Capitalized Interest Account, the
Group 2
Capitalized Interest Account, the Excess Reserve Fund Account, and
the Lower
Tier Regular Interests.
With
respect to any Distribution Date, interest that accrues on the
Class
LT-C Interest at the Pass-Through Rate shown above shall be
deferred and added
to the principal balance of the Class LT-C Interest in an amount
equal to [50]%
of any increase in the Subordinated Amount for the Group
1Certificates for such
Distribution Date.
With
respect to any Distribution Date, Available Funds with respect to
the
Mortgage Loans in Loan Group 1 shall be applied to pay interest
that accrues on
the Class LT-AF-1, Class LT-MF-1, Class LT-MF-2, Class LT-BF-1,
Class LT-E, and
Class LT-C Interests at the Pass-Through Rates shown above, other
than the
interest deferred on the Class LT-C Interest in the manner
described in the
preceding paragraph.
With
respect to any Distribution Date, interest that accrues on the
Class
LT-D Interest at the Pass-Through Rate shown above will be deferred
and added to
the principal balance of the Class LT-D Interest in an amount equal
to [50]% of
any increase in the Subordinated Amount for the Group 2
Certificates for such
Distribution Date.
With
respect to any Distribution Date, Available Funds with respect to
the
Mortgage Loans in Loan Group 2 shall be applied to pay interest
that accrues on
the Class LT-AV-1, Class LT-MV-1, Class LT-MV-2, Class LT-BV-1, and
Class LT-D
Interests at the Pass-Through Rates shown above, other than the
interest
deferred on the Class LT-D Interest in the manner described in the
preceding
paragraph.
With
respect to any Distribution Date, Available Funds with respect
to
Mortgage Loans in Loan Group 1 not applied to pay interest shall be
first
distributed on the Class LT-E interest until its balance is reduced
to zero, and
then, shall be distributed to, and losses shall be allocated among,
the Class
LT-AF-1, Class LT-MF-1, Class LT-MF-2, Class LT-BF and Class LT-C
Interests in a
manner such that, immediately following such Distribution Date, the
principal
balance of each of the Class LT-AF-1, Class LT-MF-1, Class LT-MF-2,
and Class
LT-BF Interests equals [50]% of its Corresponding Class of Upper
Tier REMIC
Regular Interest.
With
respect to any Distribution Date, Available Funds with respect
to
Mortgage Loans in Loan Group 2 not applied to pay interest shall be
distributed
to, and losses shall be allocated among, the Class LT-AV-1, Class
LT-MV-1, Class
LT-MV-2, Class LT-BV, and Class LT-D Interests in a manner such
that,
immediately following such Distribution Date, the principal balance
of each of
the Class LT-AV-1, Class LT-MV-1, Class LT-MV-2, and Class LT-BV
Interests
equals [50]% of its Corresponding Class of Upper Tier REMIC Regular
Interest.
The Upper
Tier REMIC shall issue the following classes of interests and
each Upper Tier Interest, other than the Class UT-R Interest, is
hereby
designated as a regular interest in the Upper Tier REMIC.
2
<PAGE>
Initial Upper
Upper Tier
Class Upper Tier
Tier
Principal
Corresponding
Designation
Interest Rate
Amount
Certificate
---------------- -------------
--------------
-------------
Class AF-1
(1)
$
Class AF-1
Class MF-1
(1)
Class MF-1
Class MF-2
(1)
Class MF-2
Class BF
(1)
Class BF
Class AV-1
(2)
Class AV (7)
Class MV-1
(2)
Class MV-1 (7)
Class MV-2
(2)
Class MV-2 (7)
Class BV
(2)
Class BV (7)
Class XF
(3)
(3)
Class X(5)
Class XV
(4)
(4)
Class X(5)
Class UT-R
(6)
Class R
(1) With respect
to any Distribution Date, the rate at which interest is
payable on
these interests will be the lesser of the rate shown above or
the Group
1 WAC Cap. Following the Optional Termination Date, the stated
per annum
Pass-Through Rates shown above will increase by [ ]% ([ ] basis
points).
(2) The Class
AV-1, Class MV-1, Class MV-2 and Class BV Interests will bear
interest
during their initial Interest Accrual Period at [ ]%, [ ]%, [
]%
and [ ]%,
respectively, per annum. The Class AV-1, Class MV-1, Class MV-2
and Class
BV Interests will bear interest during each Interest Accrual
Period
thereafter at a per annum rate equal to the least of (i) LIBOR
plus
[ ]%, [
]%, [ ]% and [ ]%, respectively, (ii) the Group 2 Maximum Cap,
and
(iii) the
Group 2 WAC Cap. Following the Optional Termination Date, the
Pass-Through Margin for the Class AV-1 Certificates shall be
[doubled] and
the
Pass-Through Margin for Group 2 Subordinated Certificates shall
increase
by [1.5] times.
(3) The Class XF
Interest has an initial principal balance of $[ ], but it
will not
accrue interest on such balance but will accrue interest on a
notional
principal balance. As of any Distribution Date, the Class XF
Interest
shall have a notional principal balance equal to the aggregate
of the
principal balances of the Lower Tier Fixed Rate Regular
Interests,
other than the
Class LT-E interest, as of the first day of the related
Interest
Accrual Period. With respect to any Interest Accrual Period,
the
Class XF
Interest shall bear interest at a rate equal to the excess, if
any, of
the Group 1 WAC Cap over the product of (i) 2 and (ii) the
Adjusted
Lower Tier Fixed Rate WAC. With respect to any Distribution
Date,
interest that so accrues on the notional balance of the Class
XF
Interest
shall be deferred in an amount equal to any increase in the
Subordinated Amount for the Group 1 Certificates on such
Distribution
Date. Such
deferred interest shall not itself bear interest.
(4) The Class XV
Interest has an initial principal balance of $[ ], but it
will not
accrue interest on such balance but will accrue interest on a
notional
principal balance. As of any Distribution Date, the Class XV
Interest
shall have a notional principal balance equal to the aggregate
of
the
principal balances of the Lower Tier Adjustable Rate Regular
Interests
as of the
first day of the related Interest Accrual Period. With respect
to
3
<PAGE>
any
Interest Accrual Period, the Class XV Interest shall bear
interest
at a rate
equal to the excess, if any, of the Group 2 WAC Cap over the
product of
(i) 2 and (ii) the Adjusted Lower Tier Adjustable Rate WAC.
With
respect to any Distribution Date, interest that so accrues on
the
notional
balance of the Class XV Interest shall be deferred in an amount
equal to
any increase in the Subordinated Amount for the Group 2
Certificates on such Distribution Date. Such deferred interest
shall not
itself
bear interest.
(5) The Class XF
and the Class XV Interests are non-severable components of
the Class
X Certificate.
(6) The Class
UT-R Interest is the sole class of residual interest in the
Upper Tier
REMIC. The Class UT-R Interest does not have an interest rate.
(7) Each of
these Certificates will represent not only the ownership of the
Corresponding Class of Upper Tier Regular Interest but also the
right to
receive
payments from the Excess Reserve Fund Account in respect of any
Basis Risk
CarryForward Amounts. For federal income tax purposes, the
Trustee
will treat a Certificateholder's right to receive payments from
the Excess
Reserve Fund Account as payments made pursuant to an interest
rate cap
contract written by the Class X Certificateholder.
The
minimum denomination for each Class of Certificates, other than
the
Class R and the Class X Certificates, will be $25,000. The Class R
and the Class
X Certificates will each represent a 100% Percentage Interest in
such class.
4
<PAGE>
Set forth
below are designations of Classes of Certificates to the
categories used herein:
Book-Entry Certificates.......... All Classes of Certificates
other than
the Physical
Certificates.
Group 1
Certificates................... Class AF-1, Class MF-1,
Class MF-2, Class BF
and Class R Certificates.
Group 2
Certificates................... Class AV-1, Class MV-1,
Class MV-2 and Class
BV Certificates.
Group 1
Class A
Certificates........... Class AF-1 Certificates.
Group 2
Class A
Certificates........... Class AV-1
Certificates.
Group 1
Mezzanine
Certificates......... Class MF-1 and Class
MF-2 Certificates.
Group 2
Mezzanine
Certificates......... Class MV-1 and Class
MV-2 Certificates.
Group 1
Subordinated
Certificates...... Group 1 Mezzanine
Certificates
and Class BF Certificates.
Group 2
Subordinated
Certificates...... Group 2 Mezzanine
Certificates
and Class BV Certificates.
Adjustable Rate Certificates..... Group 2 Certificates.
Fixed Rate Certificates.......... Class AF-1, Class MF-1,
Class MF-2 and
Class BF Certificates.
Delay Certificates............... All interest-bearing Classes
of
Certificates other than the Non-Delay
Certificates, if any.
ERISA-Restricted
Certificates................... Subordinated Certificates,
Class R
Certificates and Class X Certificate.
Floating Rate Certificates....... Adjustable Rate
Certificates.
5
<PAGE>
LIBOR Certificates............... Adjustable Rate
Certificates.
Mezzanine Certificates........... Class MF-1, Class MF-2,
Class MV-1 and
Class MV-2 Certificates.
Non-Delay Certificates........... Adjustable Rate
Certificates.
Offered Certificates............. All Classes of Certificates
other than
the Private Certificates.
Physical Certificates............ Class X and Class R
Certificates.
Private Certificates............. Class X Certificate.
Rating Agencies.................. [S&P] and [Fitch].
Regular Certificates............. All Classes of Certificates
other than
the Class R Certificates.
Residual Certificates............ Class R Certificates.
Subordinated Certificates........ Mezzanine Certificates,
Class BF
Certificates and Class BV Certificates.
References herein to "Class A," "Class M-1," "Class M-2," "Class
B,"
"Mezzanine Certificates" and "Subordinated Certificates" are
references to
Certificates of either or both Certificate Groups of similar
designations, as
the context requires.
6
<PAGE>
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases,
unless the context otherwise requires, shall have the following
meanings:
Accrued Certificate Interest Distribution Amount: With respect
to
any Distribution Date for each Class of Certificates (other than
the Class X
Certificate), the amount of interest accrued during the related
Interest Accrual
Period at the applicable Pass-Through Rate on the related Class
Certificate
Balance immediately prior to such Distribution Date.
Additional Designated Information: As defined in Section [11.02].
Adjusted Lower Tier Adjustable Rate WAC: With respect to any
Interest Accrual Period, the weighted average of the interest rates
on the Lower
Tier Adjustable Rate Regular Interests determined for this purpose
by first
subjecting the rate payable on the Class LT-D Interest to a cap of
zero and
subjecting the rate payable on each of the Class LT-AV-1, Class
LT-MV-1, Class
LT-MV-2, and Class LT-BV Interests to a cap equal to LIBOR plus the
Margin that
corresponds to the Pass-Through Margin used in computing the
Pass-Through Rate
on the Corresponding Class of Certificates.
Adjusted Lower Tier Fixed Rate WAC: With respect to any
Interest
Accrual Period, the weighted average of the interest rates on the
Lower Tier
Fixed Rate Regular Interests determined for this purpose by first
subjecting the
rate payable on the Class LT-C Interest to a cap of zero,
subjecting the rate
payable on each of the Class LT-AF-1, Class LT-MF-1, Class LT-MF-2,
and Class
LT-BF Interests to a cap that corresponds to the Pass-Through Rate
payable on
the Corresponding Class of Certificates.
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 at any
time, the per annum rate equal to the Mortgage Rate less the
Expense Fee Rate.
Adjustment Date: As to any Mortgage Loan in Loan Group 2, the
first
Due Date on which the related Mortgage Rate adjusts as set forth in
the related
Mortgage Note and each Due Date thereafter on which the Mortgage
Rate adjusts as
set forth in the related Mortgage Note.
Advance: As to a Loan Group, the payment required to be made by
the
Servicer with respect to any Distribution Date pursuant to Section
4.01, the
amount of any such payment being equal to the aggregate of payments
of principal
and interest (net of the Servicing Fee and net of any net income in
the case of
any REO Property) on the Mortgage Loans in such Loan Group that
were due during
the related Remittance Period and not received as of the close of
business on
the related Determination Date, less the aggregate amount of any
such delinquent
payments that the Servicer has determined would constitute a
Nonrecoverable
Advance if advanced.
I-1
<PAGE>
Agreement: This
Pooling and Servicing Agreement and all
amendments or supplements hereto.
Amount Held for Future Distribution: As to the Certificates in
either Certificate Group on 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 and Liquidation
Proceeds on the
Mortgage Loans in the related Loan Group received after the end of
the related
Remittance Period and (ii) all Scheduled Payments on the Mortgage
Loans in the
related Loan Group due after the end of the related Remittance
Period.
Applied Realized Loss Amount: With respect to any Distribution
Date,
the amount, if any, by which, (i) with respect to the Group 1
Certificates, the
aggregate Class Certificate Balance of the Group 1 Certificates
after
distributions of principal on such Distribution Date exceeds the
aggregate
Stated Principal Balance of the Mortgage Loans in Loan Group 1 as
of the last
day of the immediately preceding Remittance Period plus the amount
in the
related Pre-Funding Account, if any, excluding investment earnings,
and (ii)
with respect to the Group 2 Certificates, the aggregate Class
Certificate
Balance of the Group 2 Certificates after distributions of
principal on such
Distribution Date exceeds the aggregate Stated Principal Balance of
the Mortgage
Loans in Loan Group 2 as of the last day of the immediately
preceding Remittance
Period plus the amount in the related Pre-Funding Account, if
any.
Available Funds: With respect to any Distribution Date and the
Mortgage Loans in a Loan Group (x) the sum of (i) all scheduled
installments of
interest (net of the related Expense Fees) and principal due on the
Due Date on
such Mortgage Loans in the related Remittance Period and received
prior to the
related Determination Date, together with any Advances in respect
thereof; (ii)
all Insurance Proceeds and Liquidation Proceeds during the related
Remittance
Period (in each case, net of unreimbursed expenses incurred in
connection with a
liquidation or foreclosure and unreimbursed Advances, if any);
(iii) all partial
or full prepayments on the Mortgage Loans in such Loan Group
received during the
related Remittance Period together with all Compensating Interest
thereon; (iv)
the related Unutilized Pre-Funding Amount; (v) the related
Capitalized Interest
Requirement and (vi) amounts received with respect to such
Distribution Date as
the Substitution Adjustment Amount or purchase price in respect of
a Deleted
Mortgage Loan in such Loan Group or a Mortgage Loan repurchased by
the Seller or
the Servicer in such Loan Group as of such Distribution Date;
reduced by (y) (i)
amounts in reimbursement for Advances previously made with respect
to the
Mortgage Loans in such Loan Group and other amounts as to which the
Servicer is
entitled to be reimbursed pursuant to the Agreement with respect to
such Loan
Group and (ii) the Trustee's Fee allocated to such Loan Group.
Basic Principal Distribution Amount: With respect to any
Distribution Date and Loan Group, the excess of (i) the related
Principal
Remittance Amount for such Distribution Date over (ii) the related
Excess
Subordinated Amount, if any, for such Distribution Date.
Basis Risk CarryForward Amount: With respect to each Class of
Group
2 Certificates, as of any Distribution Date, the sum of (A) if on
such
Distribution Date the Pass-Through Rate for any Class of Group 2
Certificates is
based upon the Group 2 WAC Cap, the excess of (i) the amount of
interest such
Class of Group 2 Certificates would otherwise be
I-2
<PAGE>
entitled to receive on such Distribution Date had such rate been
calculated as
the sum of LIBOR and the applicable Pass-Through Margin on such
Class of Group 2
Certificates for such Distribution Date, up to the Group 2 Maximum
Cap over (ii)
the amount of interest payable on such Class of Group 2
Certificates at the
Group 2 WAC Cap for such Distribution Date and (B) the Basis Risk
CarryForward
Amount for such Class of Group 2 Certificates for all previous
Distribution
Dates not previously paid, together with interest thereon at a rate
equal to the
sum of LIBOR and the applicable Pass-Through Margin for such Class
of Group 2
Certificates for such Distribution Date, subject to the Group 2
Maximum Cap.
Basis Risk Payment: For any Distribution Date, an amount equal
to
the sum of (i) any Basis Risk CarryForward Amount and (ii) the
Required Reserve
Amount for that date, provided, however, that with respect to any
Distribution
Date, the payment cannot exceed the sum of the amounts otherwise
distributable
on the Class X Certificates.
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 banking institutions in the City of New York, New
York, or 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.
Capitalized Interest Account: Either of the Group 1
Capitalized
Interest Account or the Group 2 Capitalized Interest Account.
Capitalized Interest Requirement: With respect to the
Distribution
Date in [ ] and [ ] and Loan Group 1, the product of (a) the excess
of the
Pre-Funding Amount for Loan Group 1 on the Closing Date over the
Principal
Balance of any Subsequent Mortgage Loan transferred to the Trust
Fund for Loan
Group 1 during the related Due Period or a prior Due Period that
has a Monthly
Payment due during such Due Period and (b) a fraction, the
numerator of which is
the weighted average of the Pass-Through Rates on the Group 1
Certificates for
such Distribution Date and the denominator of which is 12. With
respect to the
Distribution Date in [ ] and [ ] and Loan Group 2, the product of
(a) the excess
of the Pre-Funding Amount for Loan Group 2 on the Closing Date over
the
Principal Balance of any Subsequent Mortgage Loan transferred to
the Trust Fund
for Loan Group 2 during the related Due Period or a prior Due
Period that has a
Monthly Payment due during such Due Period and (b) a fraction, the
numerator of
which is the weighted average of the Pass-Through Rates on the
Group 2
Certificates for such Distribution Date and the denominator of
which is 12.
Certificate: Any one of the Certificates issued by the Trust
Fund
executed by the Trustee in substantially the forms attached hereto
as exhibits.
Certificate Account: The separate Eligible Account or Accounts
created and maintained by the Servicer pursuant to Section 3.06(c)
with a
depository institution in the name of the Servicer for the benefit
of the
Trustee on behalf of Certificateholders and designated
I-3
<PAGE>
"[IndyMac Bank, F.S.B.], in trust for the registered holders of
Home Equity
Mortgage Loan Asset-Backed Certificates, Series SPMD [ ]".
Certificate Balance: With respect to any Class of Certificates,
other than the Class X Certificate, at any date, the maximum dollar
amount of
principal to which the Holder thereof is then entitled hereunder,
such amount
being equal to the Denomination thereof minus all distributions of
principal
previously made with respect thereto and in the case of any
Subordinated
Certificates, reduced by any Applied Realized Loss Amounts
applicable to such
Class of Subordinated Certificates. The Class X Certificate has no
Certificate
Balance.
Certificate Group: Any of the Certificate Group 1 Certificates
or
the Certificate Group 2 Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Book-Entry Certificate.
For purposes
of this Agreement, in order for a Certificate Owner to enforce any
of its rights
under this Agreement, it shall first have to provide evidence of
its beneficial
ownership interest in a Certificate that is reasonably satisfactory
to the
Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register:
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 shall
be deemed not
to be 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 such consent has been obtained;
provided, however,
that if any such Person (including the Depositor or its affiliates)
owns 100% of
the Percentage Interests evidenced by a Class of Certificates, such
Certificates
shall be deemed to be Outstanding for purposes of any provision
hereof that
requires the consent of the Holders of Certificates of a particular
Class as a
condition to the taking of any action hereunder. The Trustee is
entitled to rely
conclusively on a certification of the Depositor or any affiliate
of the
Depositor in determining which Certificates are registered in the
name of an
affiliate of the Depositor.
Certification Party:
As defined in Section [11.05].
Certifying Person: As
defined in Section [11.05].
Class: All
Certificates bearing the same class designation as
set forth in the Preliminary Statement.
Class A Principal Distribution Amount: With respect to each
Loan
Group and any Distribution Date, the excess of (i) the aggregate
Class
Certificate Balance of the Class A Certificates for the related
Certificate
Group immediately prior to such Distribution Date over (ii) the
lesser of (A) [
]% for Loan Group 1 and [ ]% for Loan Group 2, of the aggregate
Stated Principal
Balance of the Mortgage Loans in the related Loan Group as of the
last day of
the related Remittance Period and (B) the Stated Principal Balances
of the
Mortgage Loans in the
I-4
<PAGE>
related Loan Group as of the last day of the related Remittance
Period minus $[
] with respect to Loan Group 1 and $[ ] with respect to Loan Group
2.
Class B Principal Distribution Amount: With respect to each
Loan
Group and any Distribution Date, the excess of (i) the sum for the
related
Certificate Group of (A) the aggregate Class Certificate Balance of
the Class A
Certificates (after taking into account distribution of the Class A
Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate
Balance of the Class M-1 Certificates (after taking into account
distribution of
the Class M-1 Principal Distribution Amount on such Distribution
Date), (C) the
Class Certificate Balance of the Class M-2 Certificates (after
taking into
account distribution of the Class M-2 Principal Distribution Amount
for such
Distribution Date), and (D) the Class Certificate Balance of the
Class B
Certificates immediately prior to such Distribution Date over (ii)
the lesser of
(A) [ ]% for Loan Group 1 and [ ]% for Loan Group 2, of the
aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group
as of the last
day of the related Remittance Period and (B) the Stated Principal
Balances of
the Mortgage Loans in the related Loan Group as of the last day of
the related
Remittance Period minus $[ ] with respect to Loan Group 1 and $[ ]
with respect
to Loan Group 2, provided, however, that with respect to any
Distribution Date
on which the Class Certificate Balances of the related Class A,
Class M-1 and
Class M-2 Certificates have been reduced to zero, the Class B
Principal
Distribution Amount is the lesser of (x) the Class Certificate
Balance of the
Class B Certificates and (y) the related Principal Distribution
Amount.
Class Certificate Balance: With respect to any Class and as to
any
date of determination, the aggregate of the Certificate Balances of
all
Certificates of such Class as of such date.
Class M-1 Principal Distribution Amount: With respect to each
Loan
Group and any Distribution Date, the excess of (i) the sum for the
related
Certificate Group of (A) the aggregate Class Certificate Balance of
the Class A
Certificates (after taking into account distribution of the Class A
Principal
Distribution Amount on such Distribution Date), and (B) the Class
Certificate
Balance of the Class M-1 Certificates immediately prior to such
Distribution
Date over (ii) the lesser of (A) [ ]% for Loan Group 1 and [ ]% for
Loan Group
2, of the aggregate Stated Principal Balance of the Mortgage Loans
in the
related Loan Group as of the last day of the related Remittance
Period and (B)
the Stated Principal Balances of the Mortgage Loans in the related
Loan Group as
of the last day of the related Remittance Period minus $[ ] with
respect to Loan
Group 1 and $[ ] with respect to Loan Group 2.
Class M-2 Principal Distribution Amount: With respect to each
Loan
Group and any Distribution Date, the excess of (i) the sum for the
related
Certificate Group of (A) the aggregate Class Certificate Balance of
the Class A
Certificates (after taking into account distribution of the Class A
Principal
Distribution Amount on such Distribution Date), (B) the Class
Certificate
Balance of the Class M-1 Certificates (after taking into account
distribution of
the Class M-1 Principal Distribution Amount on such Distribution
Date) and (C)
the Class Certificate Balance of the Class M-2 Certificates
immediately prior to
such Distribution Date over (ii) the lesser of (A) [ ]% for Loan
Group 1 and [
]% for Loan Group 2, of the aggregate Stated Principal Balance of
the Mortgage
Loans in the related Loan Group as of
I-5
<PAGE>
the last day of the related Remittance Period and (B) the Stated
Principal
Balances of the Mortgage Loans in the related Loan Group as of the
last day of
the related Remittance Period minus $[ ] with respect to Loan Group
1 and $[ ]
with respect to Loan Group 2.
Class X Distributable Amount: On any Distribution Date, the
amount
of interest that has accrued on the Class XF and Class XV Regular
Interests and
any portion of the principal balance of either the Class XF or
Class XV Regular
Interests which is distributable as a Subordination Reduction
Amount plus
Prepayment Charges and Servicer Prepayment Charge Payment Amounts,
if any.
Closing Date: [
].
Code: The Internal
Revenue Code of 1986, including any successor
or amendatory provisions.
Collateral Value: With respect to any Mortgage Loan, the
Collateral
Value of the related Mortgaged Property shall be, other than with
respect to
Mortgage Loans the proceeds of which were used for a Refinance
Loan, the lesser
of (i) the appraised value determined in an appraisal obtained by
the originator
at origination of such Mortgage Loan and (ii) the sales price for
such Mortgaged
Property. In the case of Refinance Loans, the Collateral Value of
the related
Mortgaged Property is the appraised value thereof determined in an
appraisal
obtained at the time of refinancing.
Collection Account: As
defined in Section 3.06(b).
Combined Loan-to-Value Ratio: For any Mortgage Loan at any
time,
shall be the ratio expressed as a percentage of (i) the sum of (a)
the original
principal balance of such Mortgage Loan and (b) the outstanding
principal
balance at the date of origination of such Mortgage Loan of any
senior mortgage
loan(s), or in the case of any open-ended senior mortgage loan, the
maximum
available line of credit with respect to such mortgage loan at
origination,
regardless of any lesser amount actually outstanding at the date of
origination
of such Mortgage Loan, to (ii) the Collateral Value of such
Mortgage Loan.
Commission: means The
U.S. Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, the lesser of
(i)
any and (ii) 0.125 an amount equal to [ ]% multiplied by
one-twelfth multiplied
by the aggregate Stated Principal Balance of the Mortgage Loans as
of the first
day of the prior month.
Coop 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 which governs the Cooperative
Property, which
Cooperative Corporation must qualify as a Cooperative Housing
Corporation under
Section 216 of the Code.
I-6
<PAGE>
Cooperative Loan: Any
Mortgage Loan secured by Coop Shares and a
Proprietary Lease.
Cooperative Property: The real property and improvements owned
by
the Cooperative Corporation, including the allocation of individual
dwelling
units to the holders of the Coop 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 New York at which at any particular time its corporate
trust
business with respect to this Agreement shall be administered,
which office
at the date of the execution of this Agreement is located at
[Address of
Trustee] (Attn: [
]), facsimile no.
[
] and which is the address to which notices to and
correspondence with the Trustee should be directed.
Corresponding Class: The class of interests in any REMIC
created
under this Agreement that correspond to the Class of interests in
another such
REMIC or to a Class of Certificates in the manner set out
below:
Lower Tier Class Upper Tier
Corresponding
Designation
Interest Certificate
---------------- ----------
-------------
Class LT-AF-1
Class AF-1
Class AF-1
Class LT-MF-1
Class MF-1
Class MF-1
Class LT-MF-2
Class MF-2
Class MF-2
Class
LT-BF
Class BF
Class BF
Class LT-AV-1
Class AV-1
Class AV-1
Class LT-MV-1
Class MV-1
Class MV-1
Class LT-MV-2
Class MV-2
Class MV-2
Class LT-BV
Class BV
Class BV
Cut-off Date: For each Initial Mortgage Loan, [
]; for each
Subsequent Mortgage Loan, [
].
Cut-off Date Pool Principal Balance: For any Cut-off Date, the
aggregate Stated Principal Balance of all Mortgage Loans as of such
date.
Cut-off Date Principal Balance: As to any Mortgage Loan, the
Stated Principal Balance thereof as of the close of business on the
related
Cut-off Date.
Debt Service Reduction: With respect to any Mortgage Loan, a
reduction by a court of competent jurisdiction in a proceeding
under the
Bankruptcy Code in the Scheduled Payment for such Mortgage Loan
which became
final and non-appealable, except such a reduction resulting from a
Deficient
Valuation or any reduction that results in a permanent forgiveness
of principal.
Debt Service Reduction Mortgage Loan: Any Mortgage Loan that
became
the subject of a Debt Service Reduction.
I-7
<PAGE>
Defective Mortgage Loan: Any Mortgage Loan which is required to
be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: With respect to 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 such court which 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 Mortgage Loans: (i) The Initial 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 on or prior to the
Closing Date,
and (ii) all Subsequent Mortgage Loans. The Depositor shall deliver
(or cause
delivery of) the Mortgage Files to the Trustee: (A) with respect to
at least [
]% of the Initial Mortgage Loans, not later than the Closing Date,
(B) with
respect to at least [ ]% of the Subsequent Mortgage Loans conveyed
on a
Subsequent Transfer Date, not later than [twenty one] days after
such Subsequent
Transfer Date, and (C) with respect to the remaining [ ]% of the
Initial
Mortgage Loans, not later than [five] Business Days after the
Closing Date, and
not later than [thirty] days after the relevant Subsequent Transfer
Date with
respect to the remaining [ ]% of the Subsequent Mortgage Loans
conveyed on the
related Subsequent Transfer Date. To the extent that the Seller
shall be in
possession of any Mortgage Files with respect to any Delay Delivery
Loan, until
delivery to of such Mortgage File to the Trustee as provided in
Section 2.01,
the Seller shall hold such files as Servicer hereunder, as agent
and in trust
for the Trustee.
Deleted Mortgage Loan:
As defined in Section 2.03(c).
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: With respect to each Certificate, the amount set
forth
on the face thereof as the "Initial Certificate Balance of this
Certificate" or
the Percentage Interest appearing on the face thereof.
Depositor: IndyMac
MBS, Inc., a Delaware corporation, or its
successor in interest.
I-8
<PAGE>
Depository: The initial Depository shall be The Depository
Trust
Company, the nominee of which is CEDE & Co., as the registered
Holder of the
Book-Entry Certificates. The Depository shall at all times be a
"clearing
corporation" as defined in Section 8-102(a)(5) of the Uniform
Commercial Code of
the State of New York.
Depository Participant: A broker, dealer, bank or other
financial
institution or other Person for whom from time to time a Depository
effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: As to any Distribution Date, the [18]th day
of
each month or if such [18]th day is not a Business Day the next
succeeding
Business Day; provided, however, that if such next succeeding
Business Day is
less than [two] Business Days prior to the related Distribution
Date, then the
Determination Date shall be the next Business Day preceding the
[18]th day of
such 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 "[ ] in
trust for
registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed
Certificates, Series SPMD [ ]." 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 immediately preceding
such
Distribution Date.
Distribution Date: The [25]th day of each calendar month after
the
initial issuance of the Certificates, or if such [25]th day is not
a Business
Day, the next succeeding Business Day, commencing in [ ].
Due Date: With respect
to any Mortgage Loan, the day of the
month on which a Scheduled Payment is due which is the [first] day
of the
month.
EDGAR: 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, but only if
Moody's is
not a Rating Agency) have the highest short-term ratings of each
Rating Agency
at the time any amounts are held on deposit therein, or (ii) an
account or
accounts in a depository institution or trust company in which such
accounts are
insured by the FDIC or the SAIF (to the limits established by the
FDIC or the
SAIF) 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,
I-9
<PAGE>
or (iii) a trust account or accounts maintained with the trust
department of a
federal or state chartered depository institution or trust company,
acting in
its fiduciary capacity or (iv) any other account acceptable to each
Rating
Agency without reduction or withdrawal of their then current
ratings of the
Certificates as evidenced by a letter from each Rating Agency to
the Trustee.
Eligible Accounts may bear interest, and may include, if otherwise
qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee
Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that meets the requirements of
Prohibited
Transaction Exemption 97-34, 62 Fed. Reg. 39021 (1997), as amended
(or any
successor thereto), or any substantially similar administrative
exemption
granted by the U.S. Department of Labor (an "Underwriter's
Exemption").
ERISA-Restricted Certificate: As specified in the
Preliminary
Statement.
Escrow Account: The
Eligible Account or Accounts established and
maintained pursuant to Section 3.07(a).
Event of Default: As
defined in Section 7.01.
Excess Proceeds: With respect to any Liquidated Mortgage Loan,
the
amount, if any, by which the sum of any Liquidation Proceeds of
such Mortgage
Loan received in the calendar month in which such Mortgage Loan
became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed
to the
Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan
pursuant to Section 3.09(a)(ii), exceeds (i) the unpaid principal
balance of
such Liquidated Mortgage Loan as of the Due Date in the month in
which such
Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at
the 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
applicable to the Distribution Date immediately following the
calendar month
during which such liquidation occurred.
Excess Reserve Fund Account: The separate Eligible Account
created
and maintained by the Trustee pursuant to Section 3.06(d) in the
name of the
Trustee for the benefit of the Adjustable Rate Certificateholders
and designated
"[ ] in trust for registered holders of IndyMac Home Equity
Mortgage Loan
Asset-Backed Trust, Series [ ]." Funds in the Excess Reserve Fund
Account shall
be held in trust for the Adjustable Rate Certificateholders for the
uses and
purposes set forth in this Agreement.
Excess Subordinated Amount: With respect to a Certificate Group
and
any Distribution Date, the excess, if any, of (a) the related
Subordinated
Amount on such Distribution Date over (b) the related Specified
Subordinated
Amount for such Distribution Date.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and
the rules and regulations promulgated thereunder.
I-10
<PAGE>
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 Fees: As to each Mortgage Loan, the sum of the related
Servicing Fee and Trustee Fee.
Expense Fee Rate: As to each Mortgage Loan, the sum of the
related
Servicing Fee Rate, Trustee Fee Rate and any lender paid mortgage
insurance
premiums.
Extra Principal Distribution Amount: As of any Distribution Date
and
either Certificate Group, the lesser of (x) the related Total
Monthly Excess
Spread for such Distribution Date and (y) the related Subordination
Deficiency
for such 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 Payment Date: The Final Scheduled Payment
Date
for each Class of Certificates is as follows:
Final Scheduled
Payment Date
-----------------------
Class AF-1 Certificates.................................
[
]
Class MF-1 Certificates.................................
[
]
Class MF-2 Certificates.................................
[
]
Class BF Certificates...................................
[
]
Class AV-1 Certificates.................................
[
]
Class MV-1 Certificates.................................
[
]
Class MV-2 Certificates.................................
[
]
Class BV Certificates...................................
[
]
Class R Certificates
[
]
[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., One
State Street Plaza, New York, NY 10004, Attention: MBS Monitoring -
IndyMac SPMD
[ ], or such other address as 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.
I-11
<PAGE>
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.
Group 1 Certificates: As specified in the Preliminary
Statement.
Group 1 Capitalized Interest Account: The separate Eligible
Account
created and maintained by the Trustee pursuant to Section 3.06 in
the name of
the Trustee for the benefit of the Certificateholders and
designated "[ ], in
trust for registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed
Certificates, Series SPMD [ ]". Funds in the Group 1 Capitalized
Interest
Account shall be held in trust for the Certificateholders for the
uses and
purposes set forth in this Agreement and shall not be a part of any
REMIC
created hereunder, provided, however that any investment income
earned from
Permitted Investments made with funds in the Group 1 Capitalized
Interest
Account will be for the account of the Seller.
Group 1 Pre-Funding Account: The separate Eligible Account
created
and maintained by the Trustee pursuant to Section 3.06 in the name
of the
Trustee for the benefit of the Certificateholders and designated "[
], in trust
for registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed
Certificates, Series SPMD [ ]" allocated for the purchase of
Subsequent Mortgage
Loans to be included in Loan Group 1. Funds in the Group 1
Pre-Funding Account
shall be held in trust for the Certificateholders for the uses and
purposes set
forth in this Agreement and shall not be a part of any REMIC
created hereunder.
Group 1 WAC Cap: With respect to the Mortgage Loans in Loan Group
1
as of any Distribution Date, the weighted average of the Adjusted
Net Mortgage
Rates in effect on the beginning of the related Remittance Period
for such
Mortgage Loans.
Group 2 Certificates: As specified in the Preliminary
Statement.
Group 2 Capitalized Interest Account: The separate Eligible
Account
created and maintained by the Trustee pursuant to Section 3.06 in
the name of
the Trustee for the benefit of the Certificateholders and
designated "[ ], in
trust for registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed
Certificates, Series SPMD [ ]". Funds in the Group 2 Capitalized
Interest
Account shall be held in trust for the Certificateholders for the
uses and
purposes set forth in this Agreement and shall not be a part of any
REMIC
created hereunder, provided, however that any investment income
earned from
Permitted Investments made with funds in the Group 2 Capitalized
Interest
Account will be for the account of the Seller.
Group 2 Pre-Funding Account: The separate Eligible Account
created
and maintained by the Trustee pursuant to Section 3.05 in the name
of the
Trustee for the benefit of the Certificateholders and designated "[
], in trust
for registered holders of
I-12
<PAGE>
IndyMac Home Equity Mortgage Loan Asset-Backed Certificates, Series
SPMD
[
]" allocated for the purchase of Subsequent Mortgage Loans to
be
included in Loan Group 2. Funds in the Group 2 Pre-Funding Account
shall be held
in trust for the Certificateholders for the uses and purposes set
forth in this
Agreement and shall not be a part of any REMIC created
hereunder.
Group 2 Maximum Cap: With respect to the Mortgage Loans in Loan
Group 2 as of any Distribution Date, the weighted average of the
Maximum Rates
on the Mortgage Loans in Loan Group 2 less the Expense Fee
Rate.
Group 2 WAC Cap: With respect to the Mortgage Loans in Loan Group
2
as of any Distribution Date, the product of (1) the weighted
average of the
Adjusted Net Mortgage Rates then in effect on the beginning of the
related
Remittance Period on the Mortgage Loans in Loan Group 2 and (ii) a
fraction, the
numerator of which is 30 and the denominator of which is the actual
number of
days in the Interest Accrual Period for the Group 2 Certificates
related to such
Distribution Date.
Index: As to each Mortgage Loan in Loan Group 2, the index from
time
to time in effect for the adjustment of the Mortgage Rate set forth
as such on
the related Mortgage Note.
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 Mortgage Loan: Such of the mortgage loans transferred
and
assigned to the Trustee pursuant to the provisions hereof, 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 as of
the Closing
Date, notwithstanding foreclosure or other acquisition of title of
the related
Mortgaged Property.
Insurance Policy: With respect to 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 or released to the
Mortgagor.
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 the Corresponding Class of Lower Tier Regular
Interests and any
Distribution Date, the calendar month prior to the month of such
Distribution
Date. For purposes of computing accrual of interest on each Class
of Delay
Certificates and each Class of Lower Tier Regular Interests, each
month is
assumed to have 30 days and each year is assumed to have 360 days.
With respect
to each Class of Non-Delay Certificates and the Corresponding Class
of Lower
Tier Regular Interests and any Distribution Date, the period
commencing on the
[25]th day of the month preceding the month in which such
Distribution Date
occurs and ending on the [24]th day of the
I-13
<PAGE>
month in which such Distribution Date occurs (or in the case of the
first
Distribution Date, the period from and including the Closing Date
to but
excluding such first Distribution Date). For purposes of computing
interest
accruals on each Class of Non-Delay Certificates, each Interest
Accrual Period
has the actual number of days in such month and each year is
assumed to have 360
days.
Item 1119 Party: The Depositor, any Seller, the Servicer, the
Trustee, any originator identified in the Prospectus Supplement,
the Corridor
Contract Counterparty, the Class AF-5B Insurer and any other
material
transaction party, as identified in Exhibit S hereto, as updated
pursuant to
Section 11.04.
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: With respect to any Interest Accrual Period for the
LIBOR
Certificates, the rate determined by the Trustee on the related
LIBOR
Determination Date on the basis of the offered rate for one-month
U.S. dollar
deposits as such rate appears on Telerate Page 3750 as of 11:00
a.m. (London
time) on such date; provided that if such rate does not appear on
Telerate Page
3750, the rate for such date will be determined on the basis of the
rates at
which one-month U.S. dollar deposits are offered by the Reference
Banks at
approximately 11:00 a.m. (London time) on such date to prime banks
in the London
interbank market. In such event, the Trustee will request the
principal London
office of each of the Reference Banks to provide a quotation of its
rate. If at
least two such quotations are provided, the rate for that date will
be the
arithmetic mean of the quotations (rounded upwards if necessary to
the nearest
whole multiple of 1/16%). If fewer than two quotations are provided
as
requested, the rate for that date will be the arithmetic mean of
the rates
quoted by major banks in New York City, selected by the Servicer,
at
approximately 11:00 a.m. (New York City time) on such date for
one-month U.S.
dollar loan to leading European banks.
LIBOR Certificates: As specified in the Preliminary Statement.
LIBOR Determination Date: With respect to any Interest Accrual
Period (other than the initial Interest Accrual Period) for the
LIBOR
Certificates, the [second] London Business Day preceding 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
XI (except
Section 11.07(a)(1) and (2)).
Liquidated Mortgage Loan: With respect to any Distribution Date,
a
defaulted Mortgage Loan (including any REO Property) which was
liquidated in the
calendar month preceding the month of such 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 such
Mortgage Loan including the final disposition of an REO
Property.
I-14
<PAGE>
Liquidation Proceeds: Amounts, including Insurance Proceeds,
received in connection with the partial or complete liquidation of
defaulted
Mortgage Loans, whether through trustee's sale, foreclosure sale or
otherwise or
amounts received in connection with any condemnation or partial
release of a
Mortgaged Property and any other proceeds received in connection
with an REO
Property, less the sum of related unreimbursed Servicing Fees,
Servicing
Advances and Advances.
Loan Group: Any of Loan Group 1 or Loan Group 2, as applicable.
Loan Group 1: All
Mortgage Loans which have Mortgage Rates that
are fixed.
Loan Group 2: All
Mortgage Loans which have Mortgage Rates that
are adjustable.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as of
any
date of determination, is the fraction, expressed as a percentage,
the numerator
of which is the original principal balance of the related Mortgage
Loan at such
date of determination and the denominator of which is the
Collateral Value of
the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of
United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Lower Tier Adjustable Rate Regular Interest: Each of the Class
LT-AV-1, Class LT-MV-1, Class LT-MV-2, and Class BV Interests as
described in
the Preliminary Statement.
Lower Tier Fixed Rate Regular Interest: Each of the Class
LT-AF-1,
Class LT-MF-1, Class LT-MF-2, and Class LT-BF Interests as
described in the
Preliminary Statement.
Lower Tier Regular Interests: Each of the Lower Tier
Adjustable
Rate Regular Interests and the Lower Tier Fixed Rate Regular
Interests.
Lower Tier REMIC: As
described in the Preliminary Statement
Maintenance: With
respect to any Cooperative Unit, the rent paid
by the Mortgagor to the Cooperative Corporation pursuant to the
Proprietary
Lease.
Majority in Interest: As to any Class of Regular Certificates,
the
Holders of Certificates of such Class evidencing, in the aggregate,
at least
[51]% of the Percentage Interests evidenced by all Certificates of
such Class.
Margin: As to each Mortgage Loan, the percentage amount set forth
on
the related Mortgage Note added to the Index in calculating the
Mortgage Rate
thereon.
Master REMIC: As defined in the Preliminary Statement.
I-15
<PAGE>
Maximum Rate: As to any Mortgage Loans in Loan Group 2, the
maximum
rate set forth on the related Mortgage Note at which interest can
accrue on such
Mortgage Loan.
Modified Mortgage Loan: Any Mortgage Loan which the Servicer
has
modified pursuant to Section 3.12(c).
MERS: Mortgage
Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of
Delaware,
or any successor thereto.
MERS Mortgage Loan:
Any Mortgage Loan registered with MERS on
the MERS(R) System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN: The mortgage
identification number for any MERS Mortgage
Loan.
MOM Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee,
solely as nominee for the originator of such Mortgage Loan and its
successors
and assigns.
Moneyline Telerate Page 3750: The display page currently so
designated on the Moneyline Telerate Information Services, Inc. (or
any page
replacing that page on that service for the purpose of displaying
London
inter-bank offered rates of major banks).
Monthly Statement: The
statement delivered to the
Certificateholders pursuant to Section 4.06.
Moody's: Moody's
Investor Service, Inc.
If Moody's 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
Moody's
Investors Service, Inc., 99 Church Street, New York, New York
10007,
Attention: Residential Loan Monitoring Group, or any other address
that
Moody's furnishes to the Depositor and the Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating
a
first lien on an estate in fee simple or leasehold interest in real
property
securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2.01
pertaining to a particular Mortgage Loan and any additional
documents delivered
to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: Such of the mortgage loans transferred and
assigned
to the Trustee pursuant either (i) to the provisions hereof or (ii)
to the
provisions of a Subsequent Transfer Agreement and to the provisions
hereof, 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.
I-16
<PAGE>
Mortgage Loan Schedule: As of any date, the list of Mortgage
Loans
included in the Trust Fund on such date, separately identifying the
Initial
Mortgage Loans and the Subsequent Mortgage Loans (if any), attached
hereto as
Schedule I. 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 Mortgagor's name and the street address of the
Mortgaged
Property,
including the zip code;
(iii) the maturity date;
(iv) the original principal balance;
(v) the Cut-off Date Principal Balance;
(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the related Cut-off
Date;
(viii) the Loan-to-Value Ratio or Combined Loan-to-Value (as
applicable) at origination;
(ix) a code indicating whether the residential dwelling at the
time
of
origination was represented to be owner-occupied;
(x) a code indicating whether the residential dwelling is either
(a)
a detached
single family dwelling, (b) a dwelling in a PUD, (c) a
condominium unit, (d) a two- to four-unit residential property, or
(e) a
Cooperative Unit;
(xi) the Mortgage Rate;
(xii) the purpose for the Mortgage Loan;
(xiii) the type of documentation program pursuant to which the
Mortgage
Loan was originated;
(xiv) with respect to the Mortgage Loans in Loan Group 2:
(a) the Maximum Rate;
(b) the Periodic Rate Cap;
(c) the Adjustment Date;
(d) the Margin;
(xv) a code indicating whether the Mortgage Loan is a
Performance
Loan;
I-17
<PAGE>
(xvi) the Servicing Fee Rate;
(xvii) a code indicating whether the Mortgage Loan is a Lender
PMI
Loan;
(xviii) with respect to the Lender PMI Loans, the Lender PMI
fee
premium;
and
(xix) a code indicating whether the Mortgage Loan is a Delay
Delivery
Mortgage Loan.
Such 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
indebtedness evidencing 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.
Mortgaged Property: The underlying property securing a Mortgage
Loan, which, with respect to a Cooperative Loan, is the related
Coop Shares and
Proprietary Lease.
Mortgagor: The
obligor(s) on a Mortgage Note.
MR Interest: As
defined in the Preliminary Statement.
Net Monthly Excess Cashflow: For any Distribution Date the
amount
remaining for distribution pursuant to subsection 4.02(iii) (before
giving
effect to distributions pursuant to such subsection).
Net Prepayment Interest Shortfall: For any Distribution Date and
any
Loan Group, the amount by which the sum of the Prepayment Interest
Shortfalls
with respect to such Loan Group exceeds the sum of the Compensating
Interest
payments made on such Distribution Date with respect to such Loan
Group.
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.
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
I-18
<PAGE>
denominated), an Assistant Vice President, the Treasurer, the
Secretary, or one
of the Assistant Treasurers or Assistant Secretaries of the
Depositor or the
Servicer, (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 the case
may be, as required by this Agreement or (iii) in the case of any
other Person,
signed by an authorized officer of such Person.
Opinion of Counsel: A written opinion of counsel, who may be
counsel
for the Depositor or the Servicer, including in-house counsel,
reasonably
acceptable to the Trustee; provided, however, that with respect to
the
interpretation or application of the REMIC Provisions, such counsel
must (i) in
fact be independent of the Depositor and the Servicer, (ii) not
have any direct
financial interest in the Depositor or the Servicer or in any
affiliate of
either, and (iii) not be connected with the Depositor or the
Servicer as an
officer, employee, promoter, underwriter, trustee, partner,
director or person
performing similar functions.
Optional Termination: The termination of the Trust Fund created
hereunder in connection with the purchase of the Mortgage Loans
pursuant to
Section 9.01(a) hereof.
Optional Termination Date: The Distribution Date on which the
assets
of the Trust Fund decline to [10]% or less of the Cut-off Date
Principal
Balances of the Mortgage Loans.
Original Mortgage Loan: The Mortgage Loan refinanced in
connection
with the origination of a Refinance Loan.
OTS: The Office of
Thrift Supervision.
Outstanding: With
respect to 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 which was not the
subject of a
Principal Prepayment in Full prior to such Due Date and which did
not become a
Liquidated Mortgage Loan prior to such Due Date.
Ownership Interest: As to any Residual 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.
Pass-Through Margin: With respect to each Class of Adjustable
Rate
Certificates, the following percentages: Class AV-1 Certificates, [
]%; Class
MV-1 Certificates, [ ]%; Class MV-2 Certificates,
[ ]%; and Class
BV
Certificates, [
]%. Following the Optional Termination Date, the Pass-Through
Margin for the Class AV-1 Certificates shall be [doubled]
I-19
<PAGE>
and the Pass-Through Margin for Group 2 Subordinated Certificates
shall increase
by [1.5] times.
Pass-Through Rate: For each Class of Certificates and each
Lower
Tier Interest, 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,
such percentage interest being set forth on the face thereof or
equal to the
percentage obtained by dividing the Denomination of such
Certificate by the
aggregate of the Denominations of all Certificates of the same
Class.
Performance Certification: As defined in Section 11.05.
Performance Loan: Mortgage Loans that provide borrowers the
potential of margin reduction for good payment history. If, at the
time of
evaluation, the related borrower has made scheduled payments in
full since the
origination of the loan with a maximum of one late payment (which,
however,
cannot be in the month of evaluation) the Mortgage Loan is eligible
for a
reduction (ranging from [ ]% to [ ]%) in the margin used to
calculate the
Mortgage Rate.
Periodic Rate Cap: As to any Mortgage Loan in Loan Group 2 and
any
Adjustment Date, the maximum percentage increase or decrease to the
related
Mortgage Rate on any such Adjustment Date, as specified in the
related Mortgage
Note.
Permitted Investments:
At any time, any one or more of the
following obligations and securities:
(i) obligations of the United States or any agency thereof,
provided
that such
obligations are 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 such lower rating as will
not result
in the downgrading 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;
(iii) commercial or finance company paper which is then
receiving
the
highest commercial or finance company paper rating of each
Rating
Agency, or
such lower rating as will not result in the downgrading 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 and/or state
banking
authorities, provided that the commercial paper and/or
long-term
unsecured
debt obligations of such depository institution or trust
company
(or in the case of the principal depository institution in a
holding
company system, the commercial
I-20
<PAGE>
paper or
long-term unsecured debt obligations of such holding company,
but only
if Moody's 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
such securities, or such lower ratings as will not result in
the
downgrading 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 such
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 such 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;
(viii) securities (other than stripped bonds, stripped coupons
or
instruments sold at a purchase price in excess of [ ]% of the face
amount
thereof)
bearing interest or sold at a discount issued by any
corporation
incorporated under the laws of the United States or any state
thereof
which, at
the time of such investment, have one of the two highest
ratings
of each
Rating Agency (except if the Rating Agency is Moody's such
rating
shall be
the highest commercial paper rating of Moody's for any such
securities), or such lower rating as will not result in the
downgrading 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;
(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) such other investments bearing interest or sold at a
discount
acceptable
to each Rating Agency as will not result in the downgrading 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;
provided that no such instrument shall be a Permitted Investment if
such
instrument evidences the right to receive interest only payments
with respect to
the obligations underlying such instrument. Any permitted
Investment shall be
relatively risk free and no options or voting rights
I-21
<PAGE>
shall be exercised with respect to any Permitted Investment. No
Permitted
Investment may be sold or disposed of before its maturity.
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)
which is exempt from tax imposed by Chapter 1 of the Code
(including the tax
imposed by section 511 of the Code on unrelated business taxable
income) on any
excess inclusions (as defined in section 860E(c)(1) of the Code)
with respect to
any Residual Certificate, (iv) rural electric and telephone
cooperatives
described in section 1381(a)(2)(C) of the Code, (v) a Person that
is not a U.S.
Person, and (vi) any other Person so designated by the Depositor
based upon an
Opinion of Counsel that the Transfer of an Ownership Interest in a
Residual
Certificate to such Person may cause the REMIC hereunder to fail to
qualify as a
REMIC at any time that the Certificates are outstanding. The terms
"United
States," "State" and "International Organization" shall have the
meanings set
forth 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.
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.
Pool Stated Principal Balance: As to any Distribution Date, the
aggregate of the Stated Principal Balances of the Mortgage Loans on
the last day
of the related Remittance Period which were Outstanding Mortgage
Loans on such
day.
Pre-Funding Amount: With respect to any date, the amount on
deposit
in the respective Pre-Funding Accounts as of such date (net of any
reinvestment
earnings thereon).
Pre-Funding Accounts: The separate Eligible Accounts created
and
maintained by the Trustee pursuant to Section 3.06 in the name of
the Trustee
for the benefit of the Certificateholders and designated "[ ], in
trust for
registered holders of IndyMac Home Equity Mortgage Loan
Asset-Backed
Certificates, Series SPMD [ ]." Funds in the Pre-Funding Accounts
shall be held
in trust for the Certificateholders for the uses and purposes set
forth in this
Agreement and shall not be a part of any REMIC created hereunder,
provided,
however that any investment income earned from Permitted
Investments made with
funds in the Pre-Funding Accounts will be for the account of the
Depositor.
Pre-Funding Period: With respect to each Loan Group, the period
commencing on the Closing Date and ending on the earlier to occur
of (i) the
date on which the amount on deposit in the Pre-Funding Accounts
(exclusive of
any investment earnings) is less than $[ ] and (ii)
[ ].
I-22
<PAGE>
Prepayment Charge: As to a Mortgage Loan, any charge paid by a
Mortgagor in connection with certain partial prepayments and all
prepayments in
full made within the related Prepayment Charge Period, the
Prepayment Charges
with respect to each applicable Mortgage Loan so held by the Trust
being
identified in the Prepayment Charge Schedule (other than any
Servicer Prepayment
Charge Payment Amount).
Prepayment Charge Period: As to any Mortgage Loan the period of
time, if any, during which a Prepayment Charge may be imposed.
Prepayment Charge Schedule: As of any date, the list of
Prepayment
Charges included in the Trust on such date, (including the
prepayment charge
summary attached thereto). The Prepayment Charge Schedule shall set
forth the
following information with respect to each prepayment Charge.
(i) the Mortgage Loan account number;
(ii) a code indicating the type of Prepayment Charge;
(iii) the state of origination in which the related Mortgage
Property
is located;
(iv) the first date on which a Monthly Payment is or was due
under
the
related Mortgage Note;
(v) The term of the Prepayment Charge;
(vi) the original principal amount of the related Mortgage Loan;
and
(vii) the Cut-off Date Principal Balance of the related
mortgage
Loan.
The Prepayment Charge Schedule shall be amended from time to time
by
the Servicer in accordance with the provisions of this
Agreement.
Prepayment Interest Shortfall: As to any Distribution Date,
Mortgage
Loan and Principal Prepayment, the amount, if any, by which one
month's interest
at the related Mortgage Rate (net of the related 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,
on the Initial Cut-off Date) and to and including the 15th day of
the month of
such Distribution Date.
Primary Insurance Policy: Each policy of primary mortgage
guaranty
insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Distribution Amount: For each Certificate Group on
any
Distribution Date, the sum of (i) the Basic Principal Distribution
Amount for
such Distribution Date for such
I-23
<PAGE>
Certificate Group and (ii) the Extra Principal Distribution Amount
for such
Distribution Date for such Certificate Group.
Principal Prepayment: Any payment of principal by a Mortgagor on
a
Mortgage Loan (including without limitation the Purchase Price of
any Modified
Mortgage Loan purchased pursuant to Section 3.12(c)) that is
received in advance
of its scheduled Due Date and is not accompanied by an amount
representing
scheduled interest due on any date or dates in any month or months
subsequent to
the month of prepayment. Partial Principal Prepayments shall be
applied by the
Servicer in accordance with the terms of the related Mortgage
Note.
Principal Prepayment in Full: Any Principal Prepayment made by
a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Remittance Amount: With respect to any Distribution
Date
and each Loan Group, the amount equal to the sum of the following
amounts
(without duplication) with respect to the immediately preceding
Remittance
Period: (i) each payment of principal on a Mortgage Loan in the
related Loan
Group received by the Servicer during such Remittance Period,
including all full
and partial principal prepayments, (ii) the Liquidation Proceeds on
the Mortgage
Loans in the related Loan Group allocable to principal actually
collected by the
Servicer during the related Remittance Period, (iii) the portion of
the purchase
price with respect to each Deleted Mortgage Loan in the related
Loan Group, the
repurchase obligation for which arose during the related Remittance
Period and
that was repurchased prior to the related Distribution Account
Deposit Date,
(iv) the principal portion of any Substitution Adjustment Amounts
in connection
with a substitution of a Mortgage Loan in the related Loan Group as
of such
Distribution Date, (v) with respect to the Distribution Date
occurring in the
month following the end of the Pre-Funding Period, the related
Unutilized
Pre-Funding Amount and (vi) the allocable portion of the proceeds
received with
respect to the termination of the Trust Fund (to the extent such
proceeds relate
to principal).
Private Certificates:
As specified in the Preliminary Statement.
Proprietary Lease:
With respect to any Cooperative Unit, a lease
or occupancy agreement between a Cooperative Corporation and a
holder of
related Coop Shares.
Prospectus Supplement:
The Prospectus Supplement dated
[
] relating to the Offered Certificates.
PUD: Planned Unit
Development.
Purchase Price: With respect to any Modified Mortgage Loan or
any
Mortgage Loan required to be purchased by the Seller pursuant to
Section 2.02 or
2.03 or purchased at the option of the Servicer pursuant to Section
3.12, an
amount equal to the sum of (i) 100% of the unpaid principal balance
of the
Mortgage Loan on the date of such purchase, and (ii) accrued
interest thereon at
the applicable Mortgage Rate (or at the applicable Adjusted Net
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 and (iii) any costs and damages
incurred by
the Trust Fund in connection with any violation by the Mortgage
Loan
I-24
<PAGE>
of any predatory or abusive lending law, provided, however, that if
such
Mortgage Loan is a Modified Mortgage Loan, the interest component
of the
Purchase Price shall be computed (i) on the basis of the applicable
Adjusted Net
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 such
Modified Mortgage
Loan is assigned to the Servicer pursuant to Section 3.12(c).
Qualified Insurer: A mortgage guaranty insurance company duly
qualified as such under the laws of the state of its principal
place of business
and each state having jurisdiction over such insurer in connection
with the
insurance policy issued by such 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 either such organization or a successor
is no longer
in existence, "Rating Agency" shall be such nationally recognized
statistical
rating organization, or other comparable Person, as is designated
by the
Depositor, notice of which designation shall be given to the
Trustee. References
herein to a given rating or rating category of a Rating Agency
shall mean such
rating category without giving effect to any modifiers. For
purposes of Section
10.05(b), the addresses for notices to each Rating Agency shall be
(i) [S&P] and
(ii) [Fitch, Attention: Residential Mortgage Surveillance
Monitoring], or such
other address as either such Rating Agency may hereafter furnish to
the
Depositor and the Servicer.
Realized Loss: The excess of the Stated Principal Balance of a
defaulted Mortgage Loan over the net Liquidation Proceeds with
respect thereto
that are allocated to principal.
Recognition Agreement: With respect to any Cooperative Loan, an
agreement between the Cooperative Corporation and the originator of
such
Mortgage Loan which establishes the rights of such originator in
the Cooperative
Property.
Record Date: With respect to any Distribution Date, the close
of
business on the last Business Day of the month preceding the month
in which such
applicable Distribution Date occurs.
Reference
Bank: As defined in
Section 4.07.
Refinance Loan: Any
Mortgage Loan the proceeds of which are used
to refinance an existing mortgage loan.
Regular Certificates:
As specified in the Preliminary Statement.
Regulation
AB: Subpart 229.1100 -
Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have
been provided by the Commission in the adopting release
I-25
<PAGE>
(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.
Relevant Mortgage Loan: A Mortgage Loan as to which there has been
a
reduction in the amount of interest collectible thereon for the
most recently
ended calendar month as a result of the application of the Relief
Act, the
amount, if any, by which interest collectible on such Mortgage Loan
for the most
recently ended calendar month is less than interest accrued thereon
for such
month pursuant to the Mortgage Note.
Relief Act: The
Servicemembers Civil Relief Act of 1940, as
amended.
Relief Act Interest Shortfall: With respect to any Distribution
Date
and any Mortgage Loan as to which there has been a reduction in the
amount of
interest collectible thereon for the most recently ended calendar
month as a
result of the application of the Relief Act, the amount, if any, by
which (i)
interest collectible on such Mortgage Loan for the most recently
ended calendar
month is less than (ii) interest accrued thereon for such month
pursuant to the
Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the
meaning of section 860D of the Code.
REMIC Change of Law: Any proposed, temporary or final
regulation,
revenue ruling, revenue procedure or other official announcement
or
interpretation relating to REMICs and the REMIC Provisions issued
after the
Closing Date.
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.
Remittance Period: With respect to 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
such Distribution Date occurs.
REO Property: A Mortgaged Property acquired by the Trust Fund
through foreclosure or deed-in-lieu of foreclosure in connection
with a
defaulted Mortgage Loan.
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);
I-26
<PAGE>
(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 Corridor Contract Counterparty,
the Class
AF-5B Insurer, any enhancement or support provider contemplated
by Items
1114(b) or 1115 of Regulation AB, or any other material party
contemplated by Item 1101(d)(1) of Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor
only, the
occurrence of an early amortization, performance trigger or
other
event, including an Event of Default under this Agreement;
(e) any amendment to this Agreement;
(f) the resignation, removal, replacement, substitution of the
Servicer
or the Trustee;
(g) with respect to the Servicer only, if the Servicer becomes
aware
that (i)
any material enhancement or support specified in Item
1114(a)(1)
through
(3) of Regulation AB or Item 1115 of Regulation AB that was
previously
applicable regarding one or more classes of the Certificates
has
terminated other than by expiration of the contract on its
stated
termination date or as a result of all parties completing their
obligations under such agreement; (ii) any material enhancement
specified
in Item
1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation
AB has
been added with respect to one or more classes of the
Certificates;
or (iii)
any existing material enhancement or support specified in Item
1114(a)(1)
through (3) of Regulation AB or Item 1115 of Regulation AB with
respect to
one or more classes of the Certificates has been materially
amended or
modified; and
(h) with respect to the Trustee, the Servicer and the Depositor
only, a
required distribution to Holders of the Certificates is not
made
as of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the
Trustee, any Subcontractor determined by such Person pursuant to
Section
11.08(b) to be "participating in the servicing function" within the
meaning of
Item 1122 of Regulation AB. References to a Reporting Subcontractor
shall refer
only to the Subcontractor of such Person and shall not refer to
Subcontractors
generally.
Request for Release: The Request for Release submitted by the
Servicer to the Trustee, substantially in the form of Exhibits M
and N, as
appropriate.
Required Insurance Policy: With respect to any Mortgage Loan,
any
insurance policy that is required to be maintained from time to
time under this
Agreement.
I-27
<PAGE>
Required Reserve Amount: On any Distribution Date that (A) the
Group
2 WAC Cap exceeds the Pass-Through Rate on the Class BV Certificate
by less than
[ ]%
([ ]
basis points), the greater of $[ ] or the product
of (i)
[ ]%
and the Class Certificate Balance of the Adjustable Rate
Certificates
as of such Distribution Date and (B) the Group 2 WAC Cap exceeds
the
Pass-Through Rate on the Class BV Certificates by more than [
]%,
$[
].
Residual Certificates:
As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any
Vice
President, any Assistant Vice President, any Assistant Secretary,
any Assistant
Treasurer, 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, such matter is referred because of such
officer's knowledge
of and familiarity with the particular subject and who shall have
direct
responsibility for the administration of this Agreement.
SAIF: The Savings
Association Insurance Fund, or any successor
thereto.
Sarbanes-Oxley Certification: As defined in Section 11.05.
[S&P: Standard & Poor's, a division of The McGraw-Hill
Companies. If
S&P is designated as a Rating Agency in the Preliminary
Statement, for purposes
of Section 10.05(b) the address for notices to S&P shall be
Standard & Poor's
Ratings Group, 26 Broadway, 10th Floor, New York, New York 10004,
Attention:
Mortgage Surveillance Monitoring, or such other address as S&P
may hereafter
furnish to the Depositor and the Servicer.]
Scheduled Payment: The scheduled monthly payment on a Mortgage
Loan
due on any Due Date allocable to principal and/or interest on such
Mortgage Loan
which, unless otherwise specified herein, shall give effect to any
related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The
Securities Act of 1933, as amended.
Security Agreement: With respect to any Cooperative Loan, the
agreement between the owner of the related Coop Shares and the
originator of the
related Mortgage Note, which defines the terms of the security
interest in such
Coop 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 Enhancement Percentage: With respect to either
Certificate
Group and any Distribution Date, the percentage obtained by
dividing (x) the sum
of (i) the aggregate Class Certificate Balance of the Subordinated
Certificates
of such Certificate Group and (ii) the related Subordinated Amount
(in each case
after taking into account the distributions of the related
Principal
Distribution Amount for such Distribution Date) by (y) the
aggregate Stated
Principal
I-28
<PAGE>
Balance of the Mortgage Loans in the related Loan Group as of the
last
day of the related Remittance Period.
Senior Specified Enhancement Percentage: As of any date of
Determination, [ ]% with respect to Certificate Group 1 and [ ]%
with respect to
Certificate Group 2.
Servicer: [IndyMac
Bank, F.S.B.], a
federal savings bank, and
its successors and assigns, in its capacity as servicer
hereunder.
Servicer Advance Date:
As to any Distribution Date, 12:30 p.m.
Pacific time on the Business Day immediately preceding such
Distribution Date.
Servicer Event of Default: As defined in Section 7.01(I).
Servicer Prepayment Charge Payment Amount: The amounts payable
by the Servicer in respect of waived Prepayment Charges pursuant to
Section
3.06(d)(ix).
Servicing Account: The
separate Eligible Account or Accounts
created and maintained pursuant to Section 3.06(b) hereof.
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, but not limited to, the cost of
(i) (a) the
preservation, restoration and protection of a Mortgaged Property,
(b) expenses
reimbursable to the Servicer pursuant to Section 3.12 and any
enforcement or
judicial proceedings, including foreclosures, (c) the maintenance
and
liquidation of any REO Property and (d) compliance with the
obligations under
Section 3.10; and (ii) reasonable compensation to the Servicer or
its affiliates
for acting as broker in connection with the sale of foreclosed
Mortgaged
Properties and for performing certain default management and other
similar
services (including, but not limited to, appraisal services) in
connection with
the servicing of defaulted Mortgage Loans; provided, however, that
for purposes
of this clause (ii), only costs and expenses incurred in connection
with the
performance of activities generally considered to be outside the
scope of
customary servicing or servicing duties shall be treated as
Servicing Advances.
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,
an amount equal to one month's interest at the applicable Servicing
Fee Rate on
the Stated Principal Balance of such Mortgage Loan, or, in the
event of any
payment of interest which accompanies a Principal Prepayment in
Full made by the
Mortgagor, interest at the Servicing Fee Rate on the Stated
Principal Balance of
such Mortgage Loan for the period covered by such payment of
interest, subject
to reduction as provided in Section 3.15
Servicing Fee Rate: With respect to any Mortgage Loan, the per
annum
rate set forth in the Mortgage Loan Schedule for such Mortgage
Loan.
I-29
<PAGE>
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
such 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.
60+ Day
Delinquent Loan: Each Mortgage Loan with respect to which
any portion of a Scheduled Payment is, as of the last day of the
prior
Remittance Period, two months or more past due (without giving
effect to any
grace period), each Mortgage Loan in foreclosure, all REO Property
and each
Mortgage Loan for which the Mortgagor has filed for bankruptcy.
Specified Subordinated Amount: With respect to each Loan Group
prior
to the Stepdown Date for the related Certificate Group, an amount
equal to [ ]%
for Loan Group 1 and [ ]% for Loan Group 2, of the Cut-off Date
Principal
Balance of the Mortgage Loans in the related Loan Group, and with
respect to
each Loan Group on and after the Stepdown Date for the related
Certificate
Group, an amount equal to [ ]% for Loan Group 1 and [ ]% for Loan
Group 2, of
the aggregate Stated Principal Balance of the Mortgage Loans in
such Loan Group
as of the last day of the related Remittance Period, subject to a
minimum amount
equal to [ ]% for each Loan Group of the aggregate Stated Principal
Balance of
the Mortgage Loans in that Loan Group as of the related Cut-off
Date, provided,
however, that if, on any Distribution Date, a Trigger Event for a
Certificate
Group has occurred, the Specified Subordinated Amount shall not be
reduced to
the applicable percentage of the then current aggregate Stated
Principal Balance
of the Mortgage Loans in the related Loan Group until the
Distribution Date on
which a Trigger Event for such Certificate Group is no longer
occurring.
SR Interest: As defined in the Preliminary Statement.
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 any previous partial Principal
Prepayments
and Liquidation Proceeds allocable to principal (other than with
respect to any
Liquidated Mortgage Loan) and to the payment of principal due on
such Due Date
and irrespective of any delinquency in payment by the related
Mortgagor.
Stepdown Date: With respect to either Loan Group, the later to
occur
of (i) the Distribution Date in [ ] and (ii) the first Distribution
Date on
which the Senior Enhancement Percentage (calculated for this
purpose only after
taking into account distributions of principal on the Mortgage
Loans in the
related Loan Group on the last day of the related Remittance Period
but prior to
any applications of Principal Distribution Amount to the related
Certificates)
is greater than or equal to the related Senior Specified
Enhancement Percentage.
I-30
<PAGE>
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 Amount: For each Certificate Group and as of any
Distribution Date and related Loan Group, the excess, if any, of
(a) the
aggregate Stated Principal Balance of the Mortgage Loans in such
Loan Group as
of the end of the related Remittance Period over (b) the aggregate
of the Class
Certificate Balances of the Offered Certificates in the related
Certificate
Group as of such Distribution Date (after giving effect to the
payment of
principal on such Certificates on such Distribution Date) plus
amount in the
related Pre-Funding Account, if any, excluding investment
earnings.
Subordinated Certificates: As specified in the
Preliminary
Statement.
Subordination Deficiency: With respect to any Distribution Date
and
either Loan Group, the excess, if any, of (a) the Specified
Subordinated Amount
for the related Certificate Group applicable to such Distribution
Date over (b)
the Subordinated Amount for such Certificate Group applicable to
such
Distribution Date.
Subordination Reduction Amount: With respect to any
Distribution
Date and either Loan Group, an amount equal to the lesser of (a)
the related
Excess Subordinated Amount and (b) the Total Monthly Excess Spread
for the
related Certificate Group.
Subsequent Mortgage Loan: Such of the mortgage loans transferred
and
assigned to the Trustee pursuant to (i) the provisions of a
Subsequent Transfer
Agreement and (ii) the provisions hereof, 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 for the related
Subsequent
Transfer Date, notwithstanding foreclosure or other acquisition of
title of the
related Mortgaged Property. When used with respect to a single
Subsequent
Transfer Date, "Subsequent Mortgage Loan" shall mean a Subsequent
Mortgage Loan
conveyed to the Trust Fund on such Subsequent Transfer Date.
Subsequent Transfer Agreement: A Subsequent Transfer Agreement
substantially in the form of Exhibit O hereto, executed and
delivered by the
Seller, the Depositor and the Trustee as provided in Section
2.09(a).
Subsequent Transfer Date: For any Subsequent Transfer Agreement,
the
"Subsequent Transfer Date" identified in such Subsequent Transfer
Agreement;
provided, however, the Subsequent Transfer Date for any Subsequent
Transfer
Agreement may not be a date earlier than the date on which the
Subsequent
Transfer Agreement is executed and delivered by the parties thereto
pursuant to
Section 2.09(a).
Subsidiary REMIC: As defined in the Preliminary Statement.
Substitute Mortgage Loan: A Mortgage Loan substituted by the
Seller
for a Deleted Mortgage Loan which must, on the date of such
substitution, as
confirmed in a Request
I-31
<PAGE>
for Release, substantially in the form of Exhibit M, (i) have a
Stated Principal
Balance, after deduction of the principal portion of the Scheduled
Payment due
in the month of substitution, not in excess of, and not more than
[10]% less
than, the Stated Principal Balance of the Deleted Mortgage Loan;
(ii) be
accruing interest at a rate no lower than and not more than [1]%
per annum
higher than, that of the Deleted Mortgage Loan; (iii) have a
Loan-to-Value Ratio
or Combined Loan-to-Value Ratio (as applicable) no higher than that
of the
Deleted Mortgage Loan; (iv) have a remaining term to maturity no
greater than
(and not more than one year less than that of) the Deleted Mortgage
Loan; (v)
not be a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative
Loan, (vi) comply with each representation and warranty set forth
in Section
2.03, (vii) satisfy the criteria for inclusion in the applicable
Loan Group.
Substitution Adjustment Amount: The meaning ascribed to such
term
pursuant to Section 2.03.
Telerate Page 3750: The display page currently so designated on
the
Bridge Telerate Service (or such other page as may replace that
page on that
service for displaying comparable rates or prices).
Total Monthly Excess Spread: As to either Loan Group and any
Distribution Date, an amount equal to the excess if any, of (i) the
interest
collected or advanced on the related Mortgage Loans during the
related
Remittance Period plus the related Capitalized Interest Requirement
for such
Distribution Date over (ii) the sum of the interest payable to the
Classes of
Certificates in the related Certificate Group on such Distribution
Date.
Transaction Documents: This Agreement, [each Yield Maintenance
Agreement,] [the Class [ ] Policy] 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 the Certificates of a
Certificate
Group after a Stepdown Date for the related Loan Group, exists if
the quotient
(expressed as a percentage) of (x) the three month rolling average
of 60+ Day
Delinquent Loans for the related Loan Group, as of the last day of
the related
Remittance Period, over (y) the Stated Principal Balance of the
Mortgage Loans
in that Loan Group equals or exceeds [50]% (in the case of Loan
Group 1) or
[40]% (in the case of Loan Group 2) of the related Senior
Enhancement
Percentage.
Trust Fund: The corpus of the trust created hereunder consisting
of
(i) the Mortgage Loans and all interest and principal received on
or with
respect thereto after the related Cut-off Date, other than such
amounts which
were due on the Mortgage Loans on or before the related Cut-off
Date; (ii) the
Certificate Account, Excess Reserve Fund Account, the Distribution
Account, the
Pre-Funding Accounts and the Capitalized Interest Accounts and all
amounts
deposited therein pursuant to the applicable provisions of this
Agreement
(including, without limitation, amounts received from the Seller on
the Closing
Date which shall 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;
I-32
<PAGE>
(iv) the right to collect any amounts under any mortgage insurance
policies
covering any Mortgage Loan and any collections received under any
mortgage
insurance policies covering any Mortgage Loan; (v) all rights to
receive amounts
under, and to enforce remedies in, the Cap Contract, and (vi) all
proceeds of
the conversion, voluntary or involuntary, of any of the
foregoing.
Trustee: [
] and its successors and, if a successor trustee
is appointed hereunder, such successor.
Trustee Fee: As to each Mortgage Loan and any Distribution Date,
an
amount equal to one month's interest at the related Trustee Fee
Rate on the
Stated Principal Balance of such Mortgage Loan or, in the event of
any payment
of interest which accompanies a Principal Prepayment in Full made
by the
Mortgagor, interest at the Trustee Fee Rate on the Stated Principal
Balance of
such Mortgage Loan for the period covered by such payment of
interest.
Trustee Fee Rate: With respect to each Mortgage Loan, the per
annum
rate agreed upon in writing on or prior to the Closing Date by the
Trustee and
the Depositor.
Unpaid Interest Amounts: As of any Distribution Date and any
Class
of Certificates, the sum of (a) the excess of (i) the sum of the
Accrued
Certificate Interest Distribution Amount for such Distribution Date
and any
portion of such Accrued Certificate Interest Distribution Amount
from prior
Distribution Dates remaining unpaid over (ii) the amount in respect
of interest
on such Class of Certificates actually distributed on the preceding
Distribution
Date and (b) 30 days' interest on such excess at the applicable
Pass-Through
Rate (to the extent permitted by applicable law).
Unpaid Realized Loss Amount: With respect to any Class of
Subordinated Certificates and as to any Distribution Date, is the
excess of (i)
Applied Realized Loss Amounts with respect to such Class over (ii)
the sum of
all distributions in reduction of such Applied Realized Loss
Amounts on all
previous Distribution Dates. Any amounts distributed to a Class of
Subordinated
Certificates in respect of any Unpaid Realized Loss Amount will not
be applied
to reduce the Class Certificate Balance of such Class.
United States Person or U.S. Person: Shall mean (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
prior to such date, may elect to continue to be U.S. Persons.
I-33
<PAGE>
Unutilized Pre-Funding Amount: The Pre-Funding Amount
immediately after the end of the Pre-Funding Period.
Upper Tier Regular Interest: As described in the
Preliminary
Statement.
Upper Tier REMIC:. As
described in the Preliminary Statement.
Voting Rights: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. As of any date
of
determination, (a) [1]% of all Voting Rights shall be allocated to
the Class X
Certificates, if any (such Voting Rights to be allocated among the
holders of
Certificates of each such Class in accordance with their respective
Percentage
Interests) and (b) the remaining Voting Rights shall be allocated
among Holders
of the remaining Classes of Certificates in proportion to the
Certificate
Balances of their respective Certificates on such date.
SECTION 1.01. Rules of Construction
Except as otherwise expressly provided in this Agreement or
unless
the context clearly requires otherwise:
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Agreement, such as
"Section 6.12 (a),"
refer to the designated article, section, subsection, exhibit, or
other
subdivision of this Agreement as a whole and to all subdivisions of
the
designated article, section, subsection, exhibit, or other
subdivision. The
words "herein," "hereof," "hereto," "hereunder," and other words of
similar
import refer to this Agreement as a whole and not to any particular
article,
section, exhibit, or other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or
any other
changes that may have occurred since the document, statute, rule,
or regulation
came into being, including changes that occur after the date of
this Agreement.
(c) Any party may execute any of the requirements under this
Agreement either directly or through others, and the right to cause
something to
be done rather than doing it directly shall be implicit in every
requirement
under this Agreement. Unless a provision is restricted as to time
or limited as
to frequency, all provisions under this Agreement are implicitly
available and
things may happen from time to time.
(d) The
term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word
"either," the
word "or" is always used inclusively (for example, the phrase "A or
B" means "A
or B or both," not "either A or B but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not
imply
the existence or occurrence of the thing referred to even though
not followed by
"if any," and "any [of a thing]" is any of it. A reference to the
plural of
anything as to which there could be either one or more than one
does not imply
the existence of more than one (for instance, the phrase "the
obligors on a
note" means "the obligor or obligors on a note"). "Until [something
occurs]"
does
I-34
<PAGE>
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 UCC are used in this Agreement as defined in the
UCC.
(g) In the computation of a period of time from a specified date
to
a later specified date or an open ended period, the words "from"
and "beginning"
mean "from and including," the word "after" means "from but
excluding," the
words "to" and "until" mean "to but excluding," and the word
"through" means "to
and including." Likewise, in setting deadlines or other periods,
"by" means "on
or before." The words "preceding," "following," and words of
similar import,
mean immediately preceding or following. References to a month or a
year refer
to calendar months and calendar years.
(h) Any reference to the enforceability of any agreement against
a
party means that it is enforceable, subject as to enforcement
against the party,
to applicable bankruptcy, insolvency, reorganization, and other
similar laws of
general applicability relating to or affecting creditors' rights
and to general
equity principles.
I-35
<PAGE>
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery
hereof,
hereby sells, transfers, assigns, sets over and otherwise conveys
to the
Depositor, without recourse, all the right, title and interest of
the Seller in
and to each Initial Mortgage Loan, including all interest and
principal received
or receivable by the Seller on or with respect to each Initial
Mortgage Loan
after the related Cut-off Date and all interest and principal
payments on each
Initial Mortgage Loan received prior to such related Cut-off Date
in respect of
installments of interest and principal due thereafter, but not
including
payments of principal and interest due and payable on each Initial
Mortgage Loan
on or before such related Cut-off Date. On or prior to 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 Initial
Mortgage Loan listed in the Mortgage Loan Schedule as of the
Closing Date. Such
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
Initial Mortgage Loans.
(b) The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise
conveys to the
Trustee for the benefit of the Certificateholders, without
recourse, all the
right, title and interest of the Depositor in and to the Trust
Fund, together
with the Depositor's right to require the Seller to cure any breach
of a
representation or warranty made herein by the Seller or to
repurchase or
substitute for any affected Initial Mortgage Loan in accordance
herewith.
(c) In connection with the transfer and assignment of each
Initial
Mortgage Loan, the Depositor has delivered or caused to be
delivered (or, in the
case of the Delay Delivery Mortgage Loans, will deliver to, or will
cause to be
delivered to, the Trustee within the time periods specified in the
definition of
Delay Delivery Mortgage Loans), and, in connection with the
transfer and
assignment of each Subsequent Mortgage Loan, will deliver or will
cause to be
delivered, to the Trustee for the benefit of the Certificateholders
the
following documents or instruments with respect to each Mortgage
Loan so
assigned:
(i) (A) the original Mortgage Note, endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order of ______________ without recourse", with all intervening
endorsements showing a complete chain of endorsement from the
originator to the Person endorsing the Mortgage Note (each such
endorsement being sufficient to transfer all right, title and
interest of the party so endorsing, as noteholder or assignee
thereof, in and to that Mortgage Note) and (B) with respect to
any
Lost Mortgage Note, a lost note affidavit from the Seller
stating
that the original Mortgage Note was lost or destroyed, together
with
a copy of such Mortgage Note;
II-1
<PAGE>
(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
Loan and either language indicating that the Mortgage Loan is a
MOM
Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan
was
not a MOM Loan at origination, the original Mortgage and the
assignment thereof to MERS, with evidence of recording
indicated
thereon, or a copy of the Mortgage certified by the public
recording
office in which such Mortgage has been recorded;
(iii) In the case of each Mortgage Loan that is not a MERS
Mortgage Loan, a duly executed assignment of the Mortgage (which
may
be included in a blanket assignment or assignments), together
with,
except as provided below, all interim recorded assignments of
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, if any;
(v) except as provided below, the original or duplicate
original lender's title policy and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the
following documents or instruments:
(a) The Coop
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 with evidence of
recording thereon which have been filed in all places
required to perfect the Seller's interest in the Coop
Shares and the Proprietary Lease; and
II-2
<PAGE>
(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
(i) the original
recorded Mortgage,
(ii) all interim
recorded assignments, or
(iii) 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
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 the
Depositor
cannot deliver (a) the original recorded Mortgage, (b) all interim
recorded
assignments or (c) the lender's title policy (together with all
riders thereto)
satisfying the requirements of clause (ii), (iii) or (v) above,
respectively,
concurrently with the execution and delivery hereof because such
document or
documents have not been returned from the applicable public
recording office in
the case of clause (ii) or (iii) above, or because the title policy
has not been
delivered to either the Servicer or the Depositor by the applicable
title
insurer in the case of clause (v) above, the Depositor shall
promptly deliver to
the Trustee, in the case of clause (ii) or (iii) above, such
original Mortgage
or such interim assignment, as the case may be, with evidence of
recording
indicated thereon upon receipt thereof from the public recording
office, or a
copy thereof, certified, if appropriate, by the relevant recording
office 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 such interim assignment or a copy thereof, certified, if
appropriate, by
the relevant recording office, be made later than one year
following the Closing
Date (or, for a Subsequent Mortgage Loan, the Subsequent Transfer
Date), or, in
the case of clause (v) above, later than [120] days following the
Closing Date
(or, for a Subsequent Mortgage Loan, the Subsequent Transfer Date);
provided,
however, that in the event the Depositor is unable to deliver by
such date each
Mortgage and each such interim assignment by reason of the fact
that any such
documents have not been returned by the appropriate recording
office, or, in the
case of each such interim assignment, because the related Mortgage
has not been
returned by the appropriate recording office, the Depositor shall
deliver such
documents to the Trustee as promptly as
II-3
<PAGE>
possible upon receipt thereof and, in any event, within [720] days
following the
Closing Date (or, for a Subsequent Mortgage Loan, the Subsequent
Transfer Date).
The Depositor shall forward or cause to be forwarded 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. In the
event that 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 or cause to
be executed and delivered such a document to the public recording
office. In the
case where a public recording office retains the original recorded
Mortgage or
in the case where a Mortgage is lost after recordation in a public
recording
office, the Seller shall deliver to the Trustee a copy of such
Mortgage
certified by such public recording office to be a true and complete
copy of the
original recorded Mortgage.
As promptly as practicable subsequent to such transfer and
assignment, and in any event, within thirty (30) days thereafter,
the Trustee
shall (i) affix the Trustee's name to each assignment of Mortgage,
as the
assignee thereof 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, with respect to any assignment of a Mortgage
as to which
the Trustee has not received the information required to deliver
such
assignment, the Trustee's obligation to do so and to deliver the
same for such
recording shall be as soon as practicable after receipt of such
information and
in any event within [thirty (30)] days after the receipt thereof,
and the
Trustee need not cause to be recorded any assignment which 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 Seller (at
the Seller's expense) to the Trustee, the recordation of such
assignment is not
necessary to protect the Trustee's and the Certificateholders'
interest in the
related Mortgage Loan.
In the case of Mortgage Loans that 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
such payment
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 (in the case of Initial
Mortgage
Loans) or within [thirty] days of the Subsequent Transfer Date (in
the case of
Subsequent Mortgage Loans), the Seller shall either (i) deliver to
the Trustee
the Mortgage File as required pursuant to this Section 2.01 for
each Delay
Delivery Mortgage Loan or (ii) (A) repurchase the Delay Delivery
Mortgage Loan
or (B) substitute the Delay Delivery Mortgage Loan for a Substitute
Mortgage
Loan, which repurchase or substitution shall be accomplished in the
manner and
subject to the conditions set forth in Section 2.03, provided that
if the Seller
fails to deliver a Mortgage File for any Delay Delivery Mortgage
Loan within the
period provided in the prior sentence, 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. The
Seller shall
promptly provide each Rating
II-4
<PAGE>
Agency with written notice of any cure, repurchase or substitution
made pursuant
to the proviso of the preceding sentence. On or before the [fifth]
Business Day
after the Closing Date (in the case of Initial Mortgage Loans) or
the
[thirtieth] ([30]th) day (or if such [thirtieth] day is not a
Business Day, the
succeeding Business Day) after Subsequent Transfer Date (in the
case of
Subsequent Mortgage Loans), the Trustee shall, in accordance with
the provisions
of Section 2.02, send a Delay Delivery Certification substantially
in the form
annexed hereto as Exhibit G-1 (with any applicable exceptions noted
thereon) for
all Delay Delivery Mortgage Loan delivered within the specified
numbers of days
after the pertinent date. The Trustee will promptly send a copy of
such Delay
Delivery Certification to each Rating Agency. The Seller shall use
its best
reasonable efforts to effect a substitution, rather than a
repurchase of, any
Deleted Mortgage Loan.
(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.
(a) The Trustee acknowledges receipt of the documents identified
in
the Initial Certification in the form annexed hereto as Exhibit G,
and receipt
of the amount of $[ ] for deposit in
the Group 1 Pre-Funding Account and the
amount of $[
] for deposit in the Group 2 Pre-Funding Account and
declares that it holds and will hold such documents and the other
documents
delivered to it constituting the Mortgage Files for the Initial
Mortgage Loans,
that it holds and will hold all amounts in the Pre-Funding Accounts
and the
Capitalized Interest Accounts, 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
annexed hereto as Exhibit G. 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
Initial
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.
On or before the [thirtieth (30th)] day after the Closing Date
(or
if such [thirtieth] 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 Initial Mortgage Loans
substantially
in the form annexed hereto as Exhibit G-1, with any applicable
exceptions noted
thereon.
Not later than [90] days after the Closing Date, the Trustee
shall
deliver to the Depositor, the Servicer and the Seller a Final
Certification in
the form annexed hereto as Exhibit H, with any applicable
exceptions noted
thereon.
II-5
<PAGE>
If, in the course of such review, the Trustee finds any
document
constituting a part of a Mortgage File which does not meet the
requirements of
Section 2.01, the Trustee shall list such as an exception in the
Final
Certification; provided, however, that the Trustee shall not make
any
determination 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 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 or cure such defect within [90] days from the date
it was so
notified of such defect and, if the Seller does not correct or cure
such defect
within such period, the Seller shall either (a) substitute for the
related
Initial Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be
accomplished in the manner and subject to the conditions set forth
in Section
2.03, or (b) purchase such Initial Mortgage Loan from the Trustee
within [90]
days from the date the Seller was notified of such defect in
writing at the
Purchase Price of such Initial Mortgage Loan; provided, however,
that in no
event shall such substitution or purchase occur more than [540]
days from the
Closing Date, except that if the substitution or purchase of an
Initial Mortgage
Loan pursuant to this provision is required by reason 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 such substitution or purchase shall
occur within
[720] days from the Closing Date. The Trustee shall deliver written
notice to
each Rating Agency within [270] days from the Closing Date
indicating each
Initial Mortgage Loan (a) which has not been returned by the
appropriate
recording office or (b) as to which there is a dispute as to
location or status
of such Initial Mortgage Loan. Such notice shall be delivered every
[90] days
thereafter until the related Initial Mortgage Loan is returned to
the Trustee.
Any such substitution pursuant to (a) above or purchase pursuant to
(b) above
shall not be effected prior to the delivery to the Trustee of the
Opinion of
Counsel required by Section 2.05, if any, and any substitution
pursuant to (a)
above shall not be effected prior to 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 such
month. The Purchase Price for any such Initial Mortgage Loan shall
be deposited
by the Seller in the Certificate Account on or prior to the
Distribution Account
Deposit Date for the Distribution Date in the month following the
month of
repurchase and, upon receipt of such deposit and certification with
respect
thereto in the form of Exhibit N hereto, the Trustee shall release
the related
Mortgage File to the Seller and shall execute and deliver at the
Seller's
request such instruments of transfer or assignment prepared by the
Seller, in
each case without recourse, as shall be necessary to vest in the
Seller, or a
designee, the Trustee's interest in any Initial Mortgage Loan
released pursuant
hereto.
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 such other documents or
instruments
constituting the Mortgage File as come into the possession of the
Servicer from
time to time.
It is understood and agreed that the obligation of the Seller
to
substitute for or to purchase any Initial Mortgage Loan which does
not meet the
requirements of Section 2.01 shall constitute the sole remedy
respecting such
defect available to the Trustee, the Depositor and any
Certificateholder against
the Seller.
II-6
<PAGE>
(b) The Trustee agrees to execute and deliver to the Depositor,
the
Servicer and the Seller on the Subsequent Transfer Date an Initial
Certification
in the form annexed hereto as Exhibit G acknowledging receipt of
the documents
identified in such Initial Certification and declaring that it
holds and will
hold such documents and the other documents delivered to it
constituting the
Mortgage Files for the related Subsequent 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.
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
Subsequent Mortgage
Loan. 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.
Not later than [90] days after the Subsequent Transfer Date,
the
Trustee shall deliver to the Depositor, the Servicer and the Seller
a Final
Certification in the form annexed hereto as Exhibit H, with any
applicable
exceptions noted thereon.
If, in the course of such review, the Trustee finds any
document
constituting a part of a Subsequent Mortgage File which does not
meet the
requirements of Section 2.01, the Trustee shall list such as an
exception in the
Final Certification; provided, however, that the Trustee shall not
make any
determination 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 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 or cure such defect within [90] days from the date
it was so
notified of such defect and, if the Seller does not correct or cure
such defect
within such period, the Seller shall either (a) substitute for the
related
Subsequent Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be
accomplished in the manner and subject to the conditions set forth
in Section
2.03, or (b) purchase such Subsequent Mortgage Loan from the
Trustee within [90]
days from the date the Seller was notified of such defect in
writing at the
Purchase Price of such Subsequent Mortgage Loan; provided, however,
that in no
event shall such substitution or purchase occur more than [540]
days from the
Subsequent Transfer Date, except that if the substitution or
purchase of a
Subsequent Mortgage Loan pursuant to this provision is required by
reason 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 such substitution
or purchase
shall occur within [720] days from the Subsequent Transfer Date.
The Trustee
shall deliver written notice to each Rating Agency within [270]
days from the
Subsequent Transfer Date indicating each Subsequent Mortgage Loan
(a) which has
not been returned by the appropriate recording office or (b) as to
which there
is a dispute as to location or status of such Mortgage Loan. Such
notice shall
be delivered every [90] days thereafter until the related
Subsequent Mortgage
Loan is returned to the Trustee. Any such substitution pursuant to
(a)
II-7
<PAGE>
above or purchase pursuant to (b) above shall not be effected prior
to the
delivery to the Trustee of the Opinion of Counsel required by
Section 2.05, if
any, and any substitution pursuant to (a) above shall not be
effected prior to
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 such month. The Purchase
Price for any
such Subsequent Mortgage Loan shall be deposited by the Seller in
the
Certificate Account on or prior to the Distribution Account Deposit
Date for the
Distribution Date in the month following the month of repurchase
and, upon
receipt of such deposit and certification with respect thereto in
the form of
Exhibit N hereto, the Trustee shall release the related Mortgage
File to the
Seller and shall execute and deliver at the Seller's request such
instruments of
transfer or assignment prepared by the Seller, in each case without
recourse, as
shall be necessary to vest in the Seller, or a designee, the
Trustee's interest
in any Subsequent 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 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.
It is understood and agreed that the obligation of the Seller
to
substitute for or to purchase any Subsequent Mortgage Loan which
does not meet
the requirements of Section 2.01 shall constitute the sole remedy
respecting
such defect available to the Trustee, the Depositor and any
Certificateholder
against the Seller.
SECTION 2.03. Representations, Warranties and Covenants of the
Seller and the Servicer.
(a) [IndyMac], in its capacities as Seller and Servicer, hereby
makes the representations and warranties set forth in Schedule II
hereto, and by
this reference incorporated herein, to the Depositor and the
Trustee, as of the
Closing Date.
(b) The Seller, in its capacity as Seller, hereby makes the
representations and warranties set forth in Schedule III hereto,
and by this
reference incorporated herein, to the Depositor and the Trustee, as
of the
Closing Date, or if so specified therein, as of the related 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 hereby covenants that within [90] days of
II-8
<PAGE>
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 such [90] day period
expires prior to
the second anniversary of the Closing Date, remove such Mortgage
Loan (a
"Deleted Mortgage Loan") from the Trust Fund and substitute in its
place a
Substitute Mortgage Loan, in the manner and subject to the
conditions set forth
in 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;
provided, however, that any such substitution pursuant to (i) above
shall not be
effected prior to the delivery to the Trustee of the Opinion of
Counsel required
by Section 2.05, if any, and a Request for Release substantially in
the form of
Exhibit N, and the Mortgage File for any such Substitute Mortgage
Loan; and
provided, further, that, anything to the contrary herein
notwithstanding, Seller
shall have no obligation to cure any such breach or to repurchase
or substitute
for such affected Mortgage Loan if the substance of such breach
constitutes
fraud in the origination of such affected Mortgage Loan and the
Seller, at the
time of such origination and on the Closing Date, did not have
actual knowledge
of such fraud. 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 such 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 Remittance Period 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 Remittance Period of substitution,
distributions to
Certificateholders will include the monthly payment due on any
Deleted Mortgage
Loan for such Remittance Period and thereafter the Seller shall be
entitled to
retain all amounts received in respect of such Deleted Mortgage
Loan.
The Servicer shall amend the Mortgage Loan Schedule for the
benefit
of the Certificateholders to reflect the removal of such Deleted
Mortgage Loan
and the substitution of the Substitute Mortgage Loan or Loans and
the Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustee.
Upon such
substitution, the Substitute Mortgage Loan or Loans shall be
subject to the
terms of this Agreement in all respects, and the Seller shall be
deemed to have
made with respect to such Substitute Mortgage Loan or Loans, as of
the date of
substitution, the representations and warranties made pursuant to
Section
2.03(b) with respect to such Mortgage Loan. Upon any such
substitution and the
deposit to the Certificate Account of the amount required to be
deposited
therein in connection with such substitution as described in the
following
paragraph, the Trustee shall release the Mortgage File held for the
benefit of
the Certificateholders relating to such 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.
II-9
<PAGE>
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 Remittance Period of substitution and any adjustment due to any
costs or
damages incurred by the Trust Fund in connection with any violation
of the
Mortgae Loan of any predatory or abusive lending law). 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
Servicing Advances with respect to such Deleted Mortgage Loans
shall be
deposited into the Certificate Account by the Seller on or before
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.
In the event that the Seller repurchases a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Certificate
Account pursuant
to Section 3.06 on or before 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 such Mortgage
Loan and upon
such deposit of the Purchase Price, the delivery of the Opinion of
Counsel
required by Section 2.05 and receipt of a Request for Release in
the form of
Exhibit N hereto, 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. It is understood and
agreed that
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 such Persons respecting such
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 hereby represents and warrants to the Trustee
with
respect to each Mortgage Loan as of the date hereof or such other
date set forth
herein that as of the Closing Date (or, for a Subsequent Mortgage
Loan, the
Subsequent Transfer Date), and following the transfer of the
Mortgage Loans to
it by the Seller, the Depositor had good title to the Mortgage
Loans and the
Mortgage Notes were subject to no offsets, defenses or
counterclaims.
The Depositor hereby assigns, transfers and conveys to the
Trustee
all of its rights with respect to the Mortgage Loans including,
without
limitation, the representations and warranties of the Seller made
pursuant to
Section 2.03(b), together with all rights of the Depositor to
require the Seller
to cure any breach thereof or to repurchase or substitute for any
affected
Mortgage Loan in accordance with this Agreement.
II-10
<PAGE>
It is understood and agreed that the representations and
warranties
set forth 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 foregoing representations and warranties set forth in this
Section, which
materially and adversely affects the interest of the
Certificateholders, the
party discovering such breach shall give prompt written notice to
the others and
to each Rating Agency.
SECTION 2.05. Delivery of Opinion of Counsel in Connection with
Substitutions and Repurchases.
(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 (5)] Business Days of
discovery)
give written notice thereof to the other parties. In connection
therewith, the
Trustee shall require the Seller, at the Seller's option, to either
(i)
substitute, if the conditions in Section 2.03(c) with respect to
substitutions
are satisfied, a Substitute Mortgage Loan for the affected Mortgage
Loan, or
(ii) repurchase the affected Mortgage Loan within [90] days of such
discovery in
the same manner as it would a Mortgage Loan for a breach of
representation or
warranty made pursuant to Section 2.03. The Trustee shall reconvey
to the Seller
the Mortgage Loan to be released pursuant hereto in the same
manner, and on the
same terms, as it would a Mortgage Loan repurchased for breach of
a
representation or warranty contained in Section 2.03.
SECTION 2.06. Execution and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of
the
Trust Fund and, concurrently with 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
hereby. The "Startup Day" for purposes of the REMIC Provisions
shall be the
Closing Date.
II-11
<PAGE>
SECTION 2.08. Covenants of the Servicer.
The Servicer hereby covenants to the Depositor and the Trustee
as
follows:
(a) the Servicer shall comply in the performance of its
obligations
under this Agreement with all reasonable rules and requirements of
the insurer
under each Required Insurance Policy; and
(b) no written information, certificate of an officer,
statement
furnished in writing or written report delivered to the Depositor,
any affiliate
of the Depositor or the Trustee and prepared by the Servicer
pursuant to this
Agreement will contain any untrue statement of a material fact or
omit to state
a material fact necessary to make such information, certificate,
statement or
report not misleading.
SECTION 2.09. Subsequent Transfers.
(a) Upon [five] Business Days prior written notice to the
Trustee,
the Depositor, the Seller and the Trustee shall complete, execute
and deliver a
Subsequent Transfer Agreement. Subject to the satisfaction of the
conditions set
forth in Article II and paragraph (b) below and pursuant to the
terms of the
related Subsequent Transfer Agreement, in consideration of the
Trustee's
delivery on each Subsequent Transfer Date to or upon the order of
the Seller of
all or a portion of the balance of funds in the Pre-Funding
Accounts (net of
investment earnings), the Seller shall on each Subsequent Transfer
Date sell,
transfer, assign, set over and otherwise convey to the Depositor,
without
recourse, all the right, title and interest of the Seller in and to
each
Subsequent Mortgage Loan listed on the Mortgage Loan Schedule
delivered by the
Seller on such Subsequent Transfer Date, including all interest and
principal
received or receivable by the Seller on or with respect to each
Subsequent
Mortgage Loan after the related Cut-off Date and all interest and
principal
payments on each Subsequent Mortgage Loan received prior to such
related Cut-off
Date in respect of installments of interest and principal due
thereafter, but
not including payments of principal and interest due and payable on
each
Subsequent Mortgage Loan on or before such related Cut-off Date,
and the
Depositor shall simultaneously sell, transfer, assign, set over and
otherwise
convey to the Trustee for the benefit of the Certificateholders,
without
recourse, all the right, title and interest of the Depositor in and
to each
Subsequent Mortgage Loan listed on the Mortgage Loan Schedule
delivered by the
Seller on such Subsequent Transfer Date, including all interest and
principal
received or receivable by the Depositor on or with respect to each
Subsequent
Mortgage Loan after the related Cut-off Date and all interest and
principal
payments on each Subsequent Mortgage Loan received prior to such
related Cut-off
Date in respect of installments of interest and principal due
thereafter, but
not including payments of principal and interest due and payable on
each
Subsequent Mortgage Loan on or before such related Cut-off
Date.
(b) If the assignment and transfer of the Subsequent Mortgage
Loans
and the other property specified in this Section 2.09 from the
Seller to the
Depositor pursuant to this Agreement is held or deemed not to be a
sale or is
held or deemed to be a pledge of security for a loan, the Seller
intends that
the rights and obligations of the parties shall be established
pursuant to the
terms of this Agreement and that, in such event, (i) the Seller
shall be deemed
to have granted and does hereby grant to the Depositor as of each
Subsequent
Transfer Date a perfected,
II-12
<PAGE>
first priority security interest in the entire right, title and
interest of the
Seller in and to the related Subsequent Mortgage Loans and all
other property
conveyed to the Depositor pursuant to this Section 2.09 and all
proceeds
thereof, and (ii) this Agreement shall constitute a security
agreement under
applicable law.
(c)
If the assignment and transfer of the Subsequent Mortgage Loans
and the other property specified in this Section 2.09 from the
Depositor to the
Trustee pursuant to this Agreement is held or deemed not to be a
sale or is held
or deemed to be a pledge of security for a loan, the Depositor
intends that the
rights and obligations of the parties shall be established pursuant
to the terms
of this Agreement and that, in such event, (i) the Depositor shall
be deemed to
have granted and does hereby grant to the Trustee as of each
Subsequent Transfer
Date a perfected, first priority security interest in the entire
right, title
and interest of the Depositor in and to the related Subsequent
Mortgage Loans
and all other property conveyed to the Trust Fund pursuant to this
Section 2.09
and all proceeds thereof, and (ii) this Agreement shall constitute
a security
agreement under applicable law.
(d) The amount released from the Group 1 Pre-Funding Account by
the
Trustee pursuant to this Section 2.09 shall be the aggregate
Cut-off Date
Principal Balance of the Subsequent Mortgage Loans so transferred
to Loan Group
1. The amount released from the Group 2 Pre-Funding Account by the
Trustee
pursuant to this Section 2.09 shall be the aggregate Cut-off Date
Principal
Balance of the Subsequent Mortgage Loans so transferred to Loan
Group 2.
(e) The Trustee shall contribute from the Pre-Funding Accounts
funds
in an amount equal to the aggregate Cut-off Date Principal Balance
of the
Subsequent Mortgage Loans so transferred to the Trust Fund to
purchase the
Subsequent Mortgage Loans on behalf of the Trust Fund, along with
the other
property and rights related thereto described in Section 2.09(a)
hereof only
upon the satisfaction of each of the following conditions:
(i) the Trustee will be provided Opinions of Counsel addressed
to the Rating Agencies with respect to the sale of the
Subsequent
Mortgage Loans conveyed on such Subsequent Transfer Date (such
opinions being substantially similar to the opinions delivered
on
the Closing Date to the Rating Agencies with respect to the sale
of
the Initial Mortgage Loans on the Closing Date);
(ii) the execution and delivery of such Subsequent Transfer
Agreement or conveyance of the related Subsequent Mortgage
Loans
does not result in a reduction or withdrawal of the any ratings
assigned to the Certificates by the Ratings Agencies;
(iii) the Depositor shall deliver to the Trustee an Officer's
Certificate confirming the satisfaction of each of the
conditions
set forth in Article II and this Section 2.09(b) required to be
satisfied by such Subsequent Transfer Date;
(iv) each Subsequent Mortgage Loan conveyed on such Subsequent
Transfer Date satisfies the representations and warranties
applicable to it under this Agreement, provided, however, that
with
respect to a breach of a
II-13
<PAGE>
representation and warranty with respect to a Subsequent
Mortgage
Loan set forth in this clause (iv), the obligation under
Section
2.03(c) of this Agreement of the Seller to cure, repurchase or
replace such Subsequent Mortgage Loan shall constitute the sole
remedy against the Seller respecting such breach available to
Certificateholders, the Depositor or the Trustee.
(v) the Subsequent Mortgage Loans conveyed on such Subsequent
Transfer Date were selected in a manner reasonably believed not
to
be adverse to the interests of the Certificateholders;
(vi) no Subsequent Mortgage Loan conveyed on such Subsequent
Transfer Date was [30] or more days delinquent;
(vii) each Subsequent Mortgage Loan conveyed on such
Subsequent Transfer Date that is an Adjustable Rate Mortgage Loan
is
secured by a first lien on the related Mortgaged Property;
(viii) following the conveyance of the Subsequent Mortgage
Loans on such Subsequent Transfer Date to the related Loan
Group,
the characteristics of such Loan Group listed below will not vary
by
more than the permitted variance listed below for each
characteristic with respect to the Initial Mortgage Loans as
set
forth on the Mortgage Loan Schedule delivered on the Closing
Date;
provided that for the purpose of making such calculations, the
characteristics for each Mortgage Loan made will be taken as of
the
related Cut-off Date for such Mortgage Loan:
Loan Group
1:
Variation
Loan Weighted Average Coupon:......................
[ %]
Weighted Average Original Term to Maturity......... [+/- 1 month]
Weighted Average Original Loan-to-Value Ratio:.....
[ %]
Weighted Average Combined Loan-to-Value Ratio......
[ %]
Balloon Loans:.....................................
[ %]
Maximum Principal Balance.......................... [$
]
State Concentration:...............................
[ %]
Zip Code Concentration:............................
[ %]
Non-Owner Occupied:................................
[ %]
Second First Liens:................................
[ %]
Manufactured Housing:..............................
[ %]
Loan Group
2:
Variation
Loan Weighted Average Coupon:......................
[ %]
Weighted Average Original Maturity................. [+/- 1 month]
Weighted Average Original Loan-to-Value Ratio
[ %]
Weighted Average Combined Loan-to-Value Ratio:.....
[ %]
Performance Loans:.................................
[ %]
Maximum Principal Balance.......................... [$
]
State Concentration:...............................
[ %]
II-14
<PAGE>
Zip Code Concentration:............................
[ %]
Non-Owner Occupied:................................
[ %]
First Liens:.......................................
[ %]
Manufactured Housing:..............................
[ %]
(ix) neither the Seller nor the Depositor is insolvent and
neither the Seller nor the Depositor will be rendered insolvent
by
the conveyance of Subsequent Mortgage Loans on such Subsequent
Transfer Date;
(x) delivery to the Trustee of 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
purchase of Subsequent Mortgage Loans 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
the
Trust Fund to fail to qualify as a REMIC at any time that any
Certificates are outstanding; and
(xi) delivery to the Trustee of the Mortgage File for each
Subsequent Mortgage Loan to be transferred pursuant to the
related
Subsequent Transfer Agreement.
The Trustee shall not be required to investigate or otherwise
verify
compliance with these conditions, except for its own receipt of
documents
specified above, and shall be entitled to rely on the required
Officer's
Certificate.
(f) In connection with each Subsequent Transfer Date and on the
related Distribution Date, the Seller shall determine (i) the
amount and correct
dispositions of the funds distributed from the Capitalized Interest
Accounts and
the Pre-Funding Accounts and (ii) any other necessary matters in
connection with
the administration of the Capitalized Interest Accounts and the
Pre-Funding
Accounts. In the event that any amounts are released by the Trustee
from a
Pre-Funding Account or from a Capitalized Interest Account as a
result of the
Seller's calculation error, the Trustee shall not be liable
therefor, and the
Seller shall immediately repay such amounts to the Trustee.
(g) Within five Business Days of the final Subsequent Transfer
Date,
a letter addressed from an independent accountant retained by the
Depositor
confirming that the characteristics of the Mortgage Loans,
following the
acquisition of the related Subsequent Mortgage Loans, conform to
the
characteristics identified in Section 2.09(d) will be addressed to
and delivered
to the Trustee. If the characteristics of the Mortgage Loans do not
conform to
these characteristics, within five Business Days of notice of
this
non-conformity, the Seller shall purchase sufficient Subsequent
Mortgage Loans
so that the characteristics of the Mortgage Loans conform to the
characteristics
identified in Section 2.09(d).
II-15
<PAGE>
SECTION 2.10. Mandatory Prepayment.
Any Unutilized Pre-Funding Amount shall be distributed to Holders
of
the related Group of Certificates in accordance with Section 4.02
hereof on the
Distribution Date immediately following the Due Period in which the
end of the
Pre-Funding Period occurs.
II-16
<PAGE>
ARTICLE III
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 the
terms of this
Agreement and the Servicing Standard. In connection with such
servicing and
administration, the Servicer shall have full power and authority,
acting alone
to do or cause to be done any and all things that it may deem
necessary or
desirable in connection with such servicing and administration,
including but
not limited to, the power and authority, subject to the terms
hereof, (i) to
execute and deliver, on behalf of the Certificateholders and the
Trustee,
customary consents or waivers and other instruments and documents,
(ii) to
consent to transfers of any Mortgaged Property and assumptions of
the Mortgage
Notes and related Mortgages (but only in the manner provided in
this Agreement),
(iii) to collect any Insurance Proceeds and other Liquidation
Proceeds, and (iv)
to effectuate foreclosure or other conversion of the ownership of
the Mortgaged
Property securing any Mortgage Loan. The Servicer shall not make or
permit any
modification, waiver or amendment of any term of any Mortgage Loan
would cause
the Trust Fund to fail to qualify as a REMIC or result in the
imposition of any
tax under Section 860F(a) or Section 860G(d) of the Code. Without
limiting the
generality of the foregoing, the Servicer, in its own name or in
the name of any
Servicer or the Depositor and the Trustee, is hereby authorized and
empowered by
the Depositor and the Trustee, when the Servicer or the Servicer,
as the case
may be, 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 and all 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 and/or the Trustee such documents requiring execution and
delivery by
either or both of them as are necessary or 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 such documents, the Depositor and/or the
Trustee shall
execute such 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
or in the name
of the Subservicer, when the Servicer or the Subservicer, as the
case may be,
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 or cause to be advanced funds as necessary
for the
purpose of effecting the payment of taxes and assessments on the
Mortgaged
Properties, which advances shall be reimbursable in the
III-1
<PAGE>
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, if any, 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 terms of such Mortgage Loans so permit.
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.
In the event that the Servicer shall for any reason no longer be
the
Servicer hereunder (including because of an Event of Default or
termination by
the Depositor), the Trustee or its successor shall thereupon assume
all of the
rights and obligations of the Servicer hereunder arising thereafter
(except that
the Trustee shall not be (i) liable for losses of the Servicer
pursuant to
Section 3.10 or any acts or omissions of the predecessor Servicer
hereunder),
(ii) obligated to make Advances if it is prohibited from doing so
by applicable
law, (iii) obligated to effectuate repurchases or substitutions of
Mortgage
Loans hereunder, including but not limited to 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 such assumption shall be
subject to
Section 7.02.
SECTION 3.06. Collection of Mortgage Loan Payments; Servicing
Accounts; Collection Account; Certificate Account;
Distribution Account; Pre-Funding Accounts;
Capitalized Interest Accounts.
(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 terms and provisions of the Mortgage
Loans to the
extent such procedures shall be consistent with this Agreement and
the terms and
provisions of any related Required Insurance Policy. Consistent
III-2
<PAGE>
with the foregoing, the Servicer may in its discretion (i) waive
any late
payment charge (ii) modify any delinquent or defaulted Mortgage
Loan (including
modifications that change the Mortgage Rate, forgive the payment of
principal or
interest or extend the final maturity date of that Mortgage Loan),
provided such
modification is consistent with the Servicing Standard and if in
the Servicer's
determination such modification is not materially adverse to the
interests of
the Certificateholders (taking into account any estimated loss that
might result
absent such action) and is expected to minimize the loss of such
Mortgage Loan,
provided, however, that the Servicer shall not initiate new lending
to such
mortgagor through the trust and (iii) extend the due dates for
payments due on a
Mortgage Note for a period not greater than [125] days; provided,
however, that
the Servicer cannot extend the maturity of any such Mortgage Loan
past the date
on which the final payment is due on the latest maturing Mortgage
Loan in the
applicable Loan Group as of the related Cut-off Date In the event
of any such
arrangement, the Servicer shall make Advances on the related
Mortgage Loan in
accordance with the provisions of Section 4.01 during the scheduled
period in
accordance with the amortization schedule of such Mortgage Loan
without
modification thereof by reason of such 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 such payment is required is prohibited
by
applicable law. The Servicer shall not sell any delinquent or
defaulted Mortgage
Loan.
(b) The Servicer shall establish and maintain one or more
Servicing
Accounts into which the Servicer shall deposit or cause to be
deposited on a
daily basis within [one] Business Day of receipt, the following
payments and
collections received by it in respect of Mortgage Loans subsequent
to the
related Cut-off Date (other than in respect of principal and
interest due on the
Mortgage Loans on or before the related 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, in cases where the
Servicer maintains the Servicing Account, the related Servicer
Fee;
and
(iii) all Insurance Proceeds 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.
On or before the Withdrawal Date in each calendar month, the
Servicer shall (a) withdraw (or cause to be withdrawn and remitted
to the
Servicer) 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. On
or before 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
(or cause to be withdrawn and remitted to the
III-3
<PAGE>
Servicer) 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
into which the Servicer shall deposit, as and when required by
paragraph (b) of
this Section 3.06, all amounts required to be deposited in the
Collection
Account pursuant to that paragraph.
(d) The Servicer shall establish and maintain a Certificate
Account
into which the Servicer shall deposit or cause to be deposited 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
subsequent to the related Cut-off Date (other than in respect of
principal and
interest due on the Mortgage Loans on or before the related Cut-off
Date) and
the following amounts required to be deposited hereunder:
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii)
all payments on account of interest on the Mortgage
Loans, net of the related Servicing Fee and the related
Servicing Fee;
(iii) all Insurance Proceeds 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 3.12 and 3.14;
(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
hereunder; 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 such 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 such Mortgage Loan equal to
the amount of
interest that has accrued on such Mortgage Loan from the preceding
Due Date at
the Mortgage Rate net of the Servicing Fee on such date.
III-4
<PAGE>
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. In the
event that the
Servicer shall remit any amount not required to be remitted, it may
at any time
withdraw such amount from the CertificateAccount, any provision
herein to the
contrary notwithstanding. Such withdrawl or direction may be
accomplished by
delivering written notice thereof to the Trustee or such other
institution
maintaining the Certificate Account which describes the amounts
deposited in
error in the Certificate Account. The Servicer shall maintain
adequate records
with respect to all withdrawals made pursuant to this Section 3.06.
All funds
deposited in the Certificate Account shall be held in trust for
the
Certificateholders until withdrawn in accordance with Section
3.09.
(e) (i) The Trustee shall establish and maintain the Excess
Reserve
Fund Account, on behalf of the Class X Certificateholders, to
secure their
limited recourse obligation to pay to the Adjustable Rate
Certificateholders
Basis Risk CarryForward Amounts.
(ii) On the Closing Date, the Depositor shall deposit into the
Excess
Reserve Fund Account $[ ].
(iii) On each Distribution Date, the Trustee shall deposit the
amount of
any Basis Risk Payment for such date into the Excess Reserve
Fund
Account.
(iv) The Trustee shall invest amounts held in the Excess
Reserve
Fund
Account only in Permitted Investments, which shall mature not
later
than the
Business Day next preceding the next Distribution Date (except
that if
such Permitted Investment is an obligation of the institution
that
maintains
such account, then such Permitted Investment shall mature not
later than
the next Distribution Date) and, in each case, shall not be
sold or
disposed of before its maturity. The Class X Certificateholder
shall
direct the Trustee in writing with respect to investment of
amounts
in the
Excess Reserve Fund. In the absence of such written direction,
all
funds in the Excess
Reserve Fund Account shall be invested by the Trustee
in the [ ]
Cash Reserve Fund.
(f) (i) (A) On each Distribution Date the Required Reserve Fund
Deposit shall be deposited in the Excess Reserve Fund Account.
(B) On each Distribution Date on which there exists a Basis
Risk
CarryForward Amount on any Class of Certificates, the Trustee
shall
withdraw
from the Excess Reserve Fund Account amounts necessary to pay
to
such Class
or Classes of Certificates the Basis Risk CarryForward Amount.
Such
payments shall be allocated to those Classes on a pro rata
basis
based upon
the amount of Basis Risk CarryForward Amount owed to each such
Class and
shall be paid in the priority set forth in Section 4.02(iii)(i)
hereof.
(ii) The Trustee shall account for the Excess Reserve Fund
Account
as an
outside reserve fund within the meaning of Treasury regulation
1.860G-2(h) and not an asset of any REMIC created pursuant to
this
Agreement.
The owner of
III-5
<PAGE>
the Excess
Reserve Fund Account is the Class X Certificateholder. For all
Federal
tax purposes, amounts transferred by the Upper Tier REMIC to
the
Excess
Reserve Fund Account shall be treated as distributions by the
Trustee to
the Class X Certificateholder.
(iii) Any Basis Risk CarryForward Amounts paid by the Trustee to
the
Adjustable
Rate Certificateholders shall be accounted for by the Trustee
as amounts
paid to the Holders of the Class X Certificate. In addition,
the
Trustee shall account for the Adjustable Rate
Certificateholders
rights to
receive payments of Basis Risk CarryForward Amounts as rights
in
a limited
recourse interest rate cap contract written by the Class X
Certificateholders in favor of the Adjustable Rate
Certificateholders.
(iv) Notwithstanding any provision contained in this Agreement,
the
Trustee
shall not be required to make any payments from the Excess
Reserve
Fund
Account except as expressly set forth in this Section 3.06(f).
(g) The Trustee shall establish and maintain the Distribution
Account on behalf of the Certificateholders. The Trustee shall,
promptly upon
receipt, deposit in the Distribution Account and retain therein the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant
to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(h) in
connection with any losses on Permitted Investments; and
(iii) any other amounts deposited hereunder which are required to
be
deposited
in the Distribution Account.
In the event that the Servicer shall remit any amount not
required
to be remitted, it may at any time direct the Trustee in writing to
withdraw
such amount from the Distribution Account, any provision herein to
the contrary
notwithstanding. Such direction may be accomplished by delivering
an Officer's
Certificate to the Trustee which 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.
(h) (1) Each institution at which the Certificate Account or
Distribution Account is maintained shall invest the funds therein
as directed in
writing by the Servicer in Permitted Investments, which shall
mature not later
than (i) in the case of the Certificate Account, the [second]
Business Day next
preceding the related Distribution Account Deposit Date (except
that if such
Permitted Investment is an obligation of the institution that
maintains such
account, then such Permitted Investment shall mature not later than
the Business
Day next preceding such Distribution Account Deposit Date) and (ii)
in the case
of the Distribution Account, the Business Day next preceding the
Distribution
Date (except that if such Permitted Investment is an obligation of
the
institution that maintains such account, then such Permitted
III-6
<PAGE>
Investment shall mature not later than such Distribution Date) and,
in each
case, shall not be sold or disposed of prior to its maturity. All
such Permitted
Investments shall be made in the name of the Trustee, for the
benefit of the
Certificateholders. All income and gain (net of any losses)
realized from any
such investment of funds on deposit in the Certificate Account or
the
Distribution Account shall be for the benefit of the Servicer as
servicing
compensation and shall be remitted to it monthly as provided
herein. The amount
of any realized losses in the Certificate Account or the
Distribution Account
incurred in any such account in respect of any such investments
shall promptly
be deposited by the Servicer in the Certificate Account or paid to
the Trustee
for deposit into the Distribution Account, as applicable. 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 or the
Distribution
Account and made in accordance with this Section 3.06.
(2) The Trustee shall invest funds in the Capitalized Interest
Accounts or Pre-Funding Accounts as directed in writing by the
Servicer in
Permitted Investments, which shall mature not later than the
Business Day next
preceding the Distribution Date (except that if such Permitted
Investment is an
obligation of the institution that maintains such account, then
such Permitted
Investment shall mature not later than such Distribution Date) and,
in each
case, shall not be sold or disposed of prior to its maturity. All
such Permitted
Investments shall be made in the name of the Trustee, for the
benefit of the
Certificateholders.
(i) The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1
Pre-Funding
Account and the Group 2 Pre-Funding Account in the name of the
Trustee. Each of
the Pre-Funding Accounts shall be treated as an "outside reserve
fund" under
applicable Treasury regulations and shall not be part of any REMIC.
Any
investment earnings on the Pre-Funding Accounts shall be treated as
owned by the
Seller and will be taxable to the Seller. The amount of any
realized losses on
Permitted Investments in the Pre-Funding Account shall promptly be
deposited by
Seller in the Pre-Funding Account. On the Closing Date the Seller
shall remit $[
] to the Trustee for deposit in the Pre-Funding Accounts. The
Trustee shall
allocate (i) $[ ] of the such amount to the Group 1 Pre-Funding
Account for the
purchase of Subsequent Mortgage Loans to be included in Loan Group
1 and (ii) $[
] of the such amount to the Group 2 Pre-Funding Account for the
purchase of
Subsequent Mortgage Loans to be included in Loan Group 2.
The Trustee shall establish and maintain, on behalf of the
Certificateholders, two separate accounts denominated the Group 1
Capitalized
Interest Account and the Group 2 Capitalized Interest Account in
the name of the
Trustee. Each of the Capitalized Interest Accounts shall be treated
as an
"outside reserve fund" under applicable Treasury regulations and
shall not be
part of the REMIC. Any investment earnings on the Capitalized
Interest Accounts
shall be treated as owned by the Seller and will be taxable to the
Seller. The
amount of any realized losses on Permitted Investments in the
Capitalized
Interest Account shall promptly be deposited by the Seller in the
Capitalized
Interest Account.
On each Subsequent Transfer Date, upon satisfaction of the
conditions set forth in Section 2.09 hereof, the Trustee shall
withdraw from the
related Pre-Funding Accounts an amount equal to [100]% of the
aggregate of the
Cut-off Date Principal Balances of the
III-7
<PAGE>
Subsequent Mortgage Loans sold to the Trust Fund for inclusion in
Loan Group 1
or Loan Group 2, as the case may be, on such Subsequent Transfer
Date and pay
such amount to or upon the order of the Seller.
On the Business Day prior to the Distribution Date immediately
following the Remittance Period in which the Pre-Funding Period
ends, the
Trustee shall (i) withdraw the Unutilized Pre-Funding Amount, if
any, from each
of the Pre-Funding Accounts, (ii) promptly deposit each amount in
the
Distribution Account and (iii) distribute each amount to the
related Certificate
Group on such Distribution Date pursuant to Section 4.02
hereof.
The amount deposited in the Distribution Account pursuant to
the
preceding paragraph shall be net of any investment earnings on the
amounts on
deposit in the Pre-Funding Accounts.
On the Business Day prior to each Distribution Date, through
the
Distribution Date immediately following the Remittance Period in
which the
Pre-Funding Period ends, the Trustee shall transfer from each
Capitalized
Interest Account to the Distribution Account the related
Capitalized Interest
Requirement and shall distribute such amount to the related
Certificate Group on
such Distribution Date pursuant to Section 4.02 hereof. To the
extent that a
Capitalized Interest Requirement on any such Distribution Date
exceeds the
amounts on deposit in the related Capitalized Interest Account, the
Trustee
shall transfer to the Distribution Account, to the extent of such
shortfall in
the Capitalized Interest Requirement, the investment earnings on
the amounts on
deposit in the related Capitalized Interest Account and Pre-Funding
Account. The
remaining investment earnings on deposit in the Capitalized
Interest Account and
the Pre-Funding Account shall be transferred to the Seller.
All amounts, if any, remaining in the Capitalized Interest
Accounts
and any investment earnings remaining in the Pre-Funding Accounts
on the
Distribution Date following the Remittance Period in which the
Pre-Funding
Period ends shall be transferred to the Seller.
(j) 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 and the Collection Account not later than [30]
days and not
more than [45] days prior to any change thereof.
SECTION 3.07. Collection of Taxes, Assessments and Similar
Items;
Escrow Accounts.
(a) To the extent required by the related Mortgage Note and not
violative of current law, the Servicer shall establish and maintain
one or more
accounts (each, an "Escrow Account") and deposit and retain therein
all
collections from the Mortgagors (or 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)
III-8
<PAGE>
the Servicer out of related collections for any payments made
pursuant to
Sections 3.12 (with respect to taxes and assessments and insurance
premiums) and
3.13 (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 terms of
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 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
such Certificateholder or Certificate Owner to comply with
applicable
regulations of the OTS or other regulatory authorities with respect
to
investment in the Certificates; provided that the Servicer shall be
entitled to
be reimbursed by each such Certificateholder or Certificate Owner
for actual
expenses incurred by the Servicer in providing such reports and
access.
SECTION 3.09. Permitted Withdrawals from the Certificate
Account,
the Distribution Account and the Excess Reserve Fund
Account.
(a) The Servicer may (and, in the case of clause (ix) below,
shall)
from time to time make withdrawals from the Certificate Account for
the
following purposes:
(i) to pay to the Servicer (to the extent not previously
retained) the servicing compensation to which it is entitled
pursuant to Section 3.15, and to pay to the Servicer, as
additional
servicing compensation, earnings on or investment income with
respect to funds in or credited to the Certificate Account;
(ii) to reimburse the Servicer for unreimbursed Advances made
by it, such right of reimbursement pursuant to this subclause
(ii)
being limited to
III-9
<PAGE>
amounts received on the Mortgage Loan(s) in respect of which
such
Advance was made;
(iii) to reimburse the Servicer for any Nonrecoverable Advance
previously made;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to
this
clause (a) with respect to any Mortgage Loan being limited to
amounts received on such Mortgage Loan(s) that represent late
recoveries of the payments for which such advances were made
pursuant to Section 3.01 or Section 3.07 and (b) for unpaid
Servicing Fees as provided in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan or property acquired in respect thereof that has been
purchased
pursuant to Section 2.02, 2.03 or 3.14, all amounts received
thereon
after the date of such purchase;
(vii) to reimburse the Seller, the Servicer or the Depositor
for expenses incurred by any of them and reimbursable pursuant
to
Section 6.03;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited therein;
(ix) on or prior to the Distribution Account Deposit Date, to
withdraw an amount equal to (1) the related Available Funds for
both
Loan Groups and the Trustee Fee for such 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, for the purpose of justifying
any
withdrawal from the Certificate Account pursuant to such subclauses
(i), (ii),
(iv), (v) and (vi). Prior to 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 Loan(s) and their respective
portions of such
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:
III-10
<PAGE>
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to pay to the Servicer as additional servicing
compensation earnings on or investment income with respect to
funds
in the Distribution Account;
(iii) to withdraw and return to the Servicer any amount
deposited in the Distribution Account and not required to be
deposited therein; and
(iv) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) On each Distribution Date, the Trustee shall make
withdrawals
from the Excess Reserve Fund Account for deposit in the
Distribution Account an
amount equal to the amount required pursuant to Section 3.06(f)
above. On the
earlier of (i) the Distribution Date on which all of the Adjustable
Rate
Certificates
