EXHIBIT 99.1
------------
The Pooling and Servicing Agreement
<PAGE>
===============================================================================
INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee and Supplemental Interest Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2006
----------------------------------------
RESIDENTIAL ASSET SECURITIZATION TRUST
Series 2006-A15
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-O
===============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S>
<C>
Page
----
ARTICLE ONE
DEFINITIONS...........................................................................................7
Section 1.01
Definitions............................................................................7
Section 1.02 Rules of
Construction.................................................................39
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES.........................................41
Section 2.01 Conveyance
of Mortgage
Loans..........................................................41
Section 2.02 Acceptance
by the Trustee of the Mortgage
Loans.......................................44
Section 2.03
Representations, Warranties, and Covenants of the Seller and the
Servicer.............46
Section 2.04
Representations and Warranties of the Depositor as to the Mortgage
Loans..............48
Section 2.05 Delivery
of Opinion of Counsel in Connection with
Substitutions.......................48
Section 2.06 Execution
and Delivery of
Certificates................................................49
Section 2.07 REMIC
Matters.........................................................................49
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS.....................................................50
Section 3.01 Servicer
to Service Mortgage
Loans....................................................50
Section 3.02
[Reserved]............................................................................51
Section 3.03 Rights of
the Depositor and the Trustee in Respect of the
Servicer....................51
Section 3.04
[Reserved]............................................................................51
Section 3.05 Trustee to
Act as
Servicer............................................................51
Section 3.06 Collection
of Mortgage Loan Payments; Servicing Accounts; Collection
Account;
Certificate Account; Distribution Account; Supplemental Interest
Trust;
Supplemental Interest Reserve
Fund....................................................51
Section 3.07 Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts...................54
Section 3.08 Access to
Certain Documentation and Information Regarding the Mortgage
Loans..........55
Section 3.09
Permitted Withdrawals from the Certificate Account, the
Distribution Account
and the Supplemental Interest Reserve
Fund............................................55
Section 3.10
Maintenance of Hazard Insurance; Maintenance of Primary Insurance
Policies............57
Section 3.11
Enforcement of Due-On-Sale Clauses; Assumption
Agreements.............................58
Section 3.12
Realization Upon Defaulted Mortgage
Loans.............................................59
Section 3.13 Trustee to
Cooperate; Release of Mortgage
Files.......................................61
Section 3.14 Documents,
Records and Funds in Possession of the Servicer to be Held for
the
Trustee...............................................................................62
Section 3.15 Servicing
Compensation................................................................62
Section 3.16 Access to Certain
Documentation.......................................................62
Section 3.17 Annual
Statement as to
Compliance.....................................................63
Section 3.18 Errors and
Omissions Insurance; Fidelity
Bonds........................................63
Section 3.19 The
Supplemental Interest
Trust.......................................................63
Section 3.20 Prepayment
Charges....................................................................64
i
<PAGE>
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE
SERVICER..........................................................65
Section 4.01
Advances..............................................................................65
Section 4.02 Priorities
of
Distribution............................................................66
Section 4.03
[Reserved]............................................................................71
Section 4.04
[Reserved]............................................................................71
Section 4.05 Allocation
of Realized
Losses.........................................................71
Section 4.06 Monthly
Statements to
Certificateholders..............................................73
Section 4.07
[Reserved]............................................................................76
Section 4.08
Distributions from the Supplemental Interest Reserve
Fund.............................76
Section 4.09
Determination of Pass-Through Rates for LIBOR
Certificates............................76
ARTICLE FIVE THE
CERTIFICATES....................................................................................78
Section 5.01 The
Certificates......................................................................78
Section 5.02
Certificate Register; Registration of Transfer and Exchange of
Certificates...........78
Section 5.03 Mutilated,
Destroyed, Lost or Stolen
Certificates.....................................82
Section 5.04 Persons
Deemed
Owners.................................................................83
Section 5.05 Access to
List of Certificateholders' Names and
Addresses.............................83
Section 5.06
Maintenance of Office or
Agency.......................................................83
ARTICLE SIX THE DEPOSITOR AND THE
SERVICER.......................................................................84
Section 6.01 Respective
Liabilities of the Depositor and the
Servicer..............................84
Section 6.02 Merger or
Consolidation of the Depositor or the
Servicer..............................84
Section 6.03 Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others........84
Section 6.04 Limitation
on Resignation of the
Servicer.............................................85
ARTICLE SEVEN
DEFAULT............................................................................................86
Section 7.01 Events of
Default.....................................................................86
Section 7.02 Trustee to
Act; Appointment of
Successor..............................................87
Section 7.03
Notification to
Certificateholders....................................................89
ARTICLE EIGHT CONCERNING THE
TRUSTEE.............................................................................90
Section 8.01 Duties of
the
Trustee.................................................................90
Section 8.02 Certain
Matters Affecting the
Trustee.................................................90
Section 8.03 Trustee
Not Liable for Certificates or Mortgage
Loans.................................92
Section 8.04 Trustee
May Own
Certificates..........................................................92
Section 8.05 Trustee's
Fees and
Expenses...........................................................92
Section 8.06
Eligibility Requirements for the
Trustee..............................................93
Section 8.07
Resignation and Removal of the
Trustee................................................93
Section 8.08 Successor
Trustee.....................................................................94
Section 8.09 Merger or
Consolidation of the
Trustee................................................95
Section 8.10
Appointment of Co-Trustee or Separate
Trustee.........................................95
Section 8.11 Tax
Matters...........................................................................96
ARTICLE NINE
TERMINATION.........................................................................................99
ii
<PAGE>
Section 9.01
Termination upon Liquidation or Purchase of the Mortgage
Loans........................99
Section 9.02 Final
Distribution on the
Certificates................................................99
Section 9.03 Additional
Termination
Requirements..................................................101
ARTICLE TEN MISCELLANEOUS
PROVISIONS............................................................................102
Section 10.01
Amendment............................................................................102
Section 10.02 Recordation of
Agreement;
Counterparts...............................................103
Section 10.03 Governing
Law........................................................................104
Section 10.04 Intention of
Parties.................................................................104
Section 10.05 Notices. 104
Section 10.06 Severability of
Provisions...........................................................105
Section 10.07
Assignment...........................................................................105
Section 10.08 Limitation on
Rights of
Certificateholders...........................................105
Section 10.09 Inspection and
Audit
Rights..........................................................106
Section 10.10 Certificates
Nonassessable and Fully
Paid............................................106
Section 10.11 Official
Record......................................................................106
Section 10.12 Protection of
Assets.................................................................107
Section 10.13 Qualifying
Special Purpose
Entity....................................................107
ARTICLE ELEVEN EXCHANGE ACT
REPORTING...........................................................................108
Section 11.01 Filing
Obligations...................................................................108
Section 11.02 Form 10-D
Filings....................................................................108
Section 11.03 Form 8-K
Filings.....................................................................109
Section 11.04 Form 10-K
Filings....................................................................109
Section 11.05 Sarbanes-Oxley
Certification.........................................................110
Section 11.06 Form 15
Filing.......................................................................110
Section 11.07 Report on
Assessment of Compliance and
Attestation...................................110
Section 11.08 Use of
Subcontractors................................................................112
Section 11.09
Amendments...........................................................................112
iii
<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:
Principal Balance
Schedule..............................................................S-IV-1
Schedule V:
Form of Monthly
Report...................................................................S-V-1
EXHIBITS
Exhibit A:
Form of Senior Certificate (other than the Notional Amount
Certificates)...................A-1
Exhibit B:
Form of Subordinated
Certificate...........................................................B-1
Exhibit C:
Form of Class A-R
Certificate..............................................................C-1
Exhibit D:
Form of Notional Amount
Certificate........................................................D-1
Exhibit E:
Form of Reverse of
Certificates............................................................E-1
Exhibit F:
Form of Class P
Certificates...............................................................F-1
Exhibit G-1:
Form of Initial Certification of Trustee
................................................G-1-1
Exhibit G-2:
Form of Delay Delivery
Certification.....................................................G-2-1
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:
Form of Investment Letter (Non-Rule
144A)..................................................K-1
Exhibit L:
Form of Rule 144A
Letter...................................................................L-1
Exhibit M:
Form of Request for Release (for
Trustee)..................................................M-1
Exhibit N:
Request for Release of
Documents...........................................................N-1
Exhibit O:
[Reserved].................................................................................O-1
Exhibit P:
Form of Class A-10 Corridor
Contract.......................................................P-1
Exhibit Q
[Reserved].................................................................................Q-1
iv
<PAGE>
Exhibit R:
Form of Performance Certification
(Trustee)................................................R-1
Exhibit S:
Compliance
Statement.............................................................
S-1
Exhibit T:
List of 1119
Parties.............................................................
T-1
Exhibit U:
Form of Sarbanes-Oxley Certification (Replacement of
Servicer)...................
U-1
</TABLE>
v
<PAGE>
THIS
POOLING AND SERVICING AGREEMENT, dated as of November 1, 2006,
among INDYMAC MBS, INC., a Delaware corporation, as depositor (the
"Depositor"),
IndyMac Bank, F.S.B. ("IndyMac"), a federal savings bank, as seller
(in that
capacity, the "Seller") and as Servicer (in that capacity, the
"Servicer"), and
Deutsche Bank National Trust Company, a national banking
association, as trustee
(the "Trustee"),
W I T N E S S E T H T
H A T
In consideration of the mutual agreements set forth in this
Agreement,
the parties agree as follows:
P R E L I M I N A R Y
S T A T E M E N T
The Depositor is the owner of the Trust Fund that is hereby
conveyed to
the Trustee in return for the Certificates. The Trust Fund for
federal income
tax purposes will consist of two REMICs (the "Lower Tier REMIC" and
the "Master
REMIC"). Each Certificate, other than the Class A-R Certificate,
will represent
ownership of one or more regular interests in the Master REMIC for
purposes of
the REMIC Provisions. The Class A-R Certificate represents
ownership of the sole
class of residual interest in each REMIC created hereunder. The
Master REMIC
will hold as assets the Lower Tier REMIC Regular Interests. The
Lower Tier REMIC
will hold as assets all property of the Trust Fund other than the
interests in
the Lower Tier REMIC. For federal income tax purposes, each
Certificate (other
than the Class A-R Certificate) is hereby designated as a regular
interest in
the Master REMIC and each Lower Tier REMIC Regular Interest, as
defined below,
is designated as a regular interest in the Lower Tier REMIC. The
latest possible
maturity date of all REMIC regular interests created in this
Agreement shall be
the Latest Possible Maturity Date. All amounts in respect of waived
Prepayment
Charges paid by the Servicer to the Class P Certificates pursuant
to the second
paragraph of Section 3.20 will be treated as paid directly by the
Servicer to
the Class P Certificates and not as paid by or through any REMIC
created
hereunder.
The Supplemental Interest Trust, the Supplemental Interest Reserve
Fund
and the Corridor Contract shall not constitute any part of any
REMIC described
in this Agreement.
Lower Tier REMIC
The following table sets forth characteristics of the Lower Tier
REMIC
Regular Interests:
<TABLE>
<CAPTION>
============================ ====================
================== =========================
=====================
Lower Tier
REMIC Regular
Allocation of
Allocation of
Interest
Principal Balance Pass-Through Rate
Interest
Principal
---------------------------- --------------------
------------------ -------------------------
---------------------
<S>
<C>
<C>
<C>
<C>
LT-A-1
(1)
6.25%
Class A-1
Class A-1
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-2
(1)
6.25%
Class A-2
Class A-2
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-3
(1)
6.25%
Class A-3
Class A-3
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-4
(1)
6.00%
Class A-4, Class A-6
Class A-6
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-5
(1)
6.25%
Class A-5
Class A-5
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-7
(1)
6.25%
Class A-7
Class A-7
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-8
(1)
6.25%
Class A-8
Class A-8
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-9
(1)
6.25%
Class A-9
Class A-9
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-10
(1)
6.25%
Class A-10, A-11
Class A-10
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-12
(1)
6.25%
Class A-12
Class A-12
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-13
(1)
6.25%
Class A-13
Class A-13
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-14
(1)
6.25%
Class A-14
Class A-14
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-15
(1)
6.25%
Class A-15
Class A-15
---------------------------- --------------------
------------------ -------------------------
---------------------
1
<PAGE>
============================ ====================
================== =========================
=====================
Lower Tier
REMIC Regular
Allocation of
Allocation of
Interest
Principal Balance Pass-Through Rate
Interest
Principal
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-16
(1)
6.25%
Class A-16
Class A-16
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-17
(1)
6.25%
Class A-17
Class A-17
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-PO
(1)
0.00%
N/A
Class PO
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-A-X
(1)
(2)
Class A-X
N/A
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-$100
(1)
6.25%
Class A-R
Class A-R
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-B-1
(1)
6.25%
Class B-1
Class B-1
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-B-2
(1)
6.25%
Class B-2
Class B-2
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-B-3
(1)
6.25%
Class B-3
Class B-3
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-B-4
(1)
6.25%
Class B-4
Class B-4
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-B-5
(1)
6.25%
Class B-5
Class B-5
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-B-6
(1)
6.25%
Class B-6
Class B-6
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-P
(1)
N/A(3)
N/A
Class P
---------------------------- --------------------
------------------ -------------------------
---------------------
LT-R(4)
N/A
N/A
N/A
N/A
============================ ====================
================== =========================
=====================
</TABLE>
(1) For each
Distribution Date, following the allocation of scheduled
principal, Principal Prepayments and Realized Losses, the
principal
balance for each such Lower Tier REMIC Regular Interest will be
the
principal balance in respect of the corresponding Class of
Certificates
(or the sum of the principal balances if there is more than one
corresponding Class) set forth under the Column titled "Allocation
of
Principal". The notional principal balance of the Class LT-A-X
Interest
will be the principal balance of the Non-Discount Mortgage
Loans.
(2)
For federal income tax
purposes, Pass-Through Rate of the Class LT-A-X
Interest for any Distribution Date will be equal to the excess of
the
weighted average of the Adjusted Net Mortgage Rates of the
Non-Discount
Mortgage Loans over the Required Coupon.
(3) The LT-P
Interest will not be entitled to any interest, but will be
entitled to 100% of any Prepayment Charges paid on the Mortgage
Loans.
(4) The Class
LT-R Interest is the sole class of residual interest in the
Lower Tier REMIC and will not be entitled to distributions of
principal
or interest.
The Master REMIC
The following table sets forth characteristics of the
Certificates,
together with the minimum denominations and integral multiples in
excess thereof
in which such Classes shall be issuable (except that one
Certificate of each
Class of Certificates may be issued in a different amount):
<TABLE>
<CAPTION>
============================ =========================
==================== ==================== ===================
Integral
Initial Class
Pass-Through
Minimum
Multiples in
Class Designation
Certificate Balance
Rate
Denomination Excess of
Minimum
---------------------------- -------------------------
-------------------- -------------------- -------------------
<S>
<C>
<C>
<C>
<C>
Class A-1
$50,000,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-2
$29,160,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-3
$4,772,000.00
6.25%
$
1,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-4
Notional (1)
6.00%
$ 25,000(2)
$1(2)
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-5
$18,250,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-6
$77,275,000.00
6.00%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-7
$1,146,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
2
<PAGE>
<CAPTION>
============================ =========================
==================== ==================== ===================
Integral
Initial Class
Pass-Through
Minimum
Multiples in
Class Designation
Certificate Balance
Rate
Denomination Excess of
Minimum
<S>
<C>
<C>
<C>
<C>
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-8
$1,790,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-9
$124,000,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-10
$99,083,000.00 Floating
(4)
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-11
Notional (6) Floating
(5)
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-12
$7,012,000.00
6.25%
$
1,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-13
$18,221,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-14
$1,500,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-15
$9,208,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-16
$7,732,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-17
$1,050,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class PO
$1,036,388.43
N/A (3)
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-X
Notional (7)
6.25%
$ 25,000 (2)
$1(2)
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class A-R
$100.00
6.25%
$
100
N/A
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class B-1
$10,293,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class B-2
$5,745,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class B-3
$3,351,000.00
6.25%
$ 25,000
$1
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class B-4
$3,591,000.00
6.25%
$ 100,000
$1,000
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class B-5
$2,633,000.00
6.25%
$
100,000
$1,000
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class B-6
$1,917,070.10
6.25%
$
100,000
$1,000
---------------------------- -------------------------
-------------------- -------------------- -------------------
Class P
$100.00
N/A(8)
$
100
N/A
============================ =========================
==================== ==================== ===================
</TABLE>
(1) The Class
A-4 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its
Notional Amount, which will be $3,219,791, for the initial
Interest
Accrual Period.
(2)
Denomination is based on Notional Amount.
(3) The Class
PO Certificates are Principal Only Certificates and are not
entitled to receive distributions of interest.
(4) The Class
A-10 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to the lesser of (i)
LIBOR
plus 0.60% and (ii) 6.25%. The Pass-Through Rate for the Class
A-10
Certificates during the initial Interest Accrual Period is 5.92%
per
annum.
(5) The Class
A-11 Certificates will bear interest during each Interest
Accrual Period at a per annum rate equal to 5.65% minus LIBOR,
subject
to a maximum of 5.65% and a minimum of 0%. The Pass Through Rate
for
the Class A-11 Certificates during the initial Interest Accrual
Period
is 0.33% per annum.
(6) The Class
A-11 Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its
Notional Amount, which will be $423,772,426, for the initial
Interest
Accrual Period.
(7) The Class
A-X Certificates will be Notional Amount Certificates, will
have no Class Certificate Balance and will bear interest on its
Notional Amount, which will be $44,612,289.32 for the initial
Interest
Accrual Period. For federal income tax purposes, the Class A-X
Certificates will be entitled to 100% of the LT-A-X Interest cash
flow.
3
<PAGE>
(8) The Class
P Certificate will not be entitled to any interest, but will
be entitled to 100% of any Prepayment Charges paid on the
Mortgage
Loans. For federal income tax purposes, the Class P Certificate
will be
entitled to 100% of the Class LT-P Regular Interest cash flow.
The foregoing REMIC structure is intended to cause all of the cash
from
the Mortgage Loans to flow through to the Master REMIC as cash flow
on a REMIC
regular interest, without creating any shortfall--actual or
potential (other
than for credit losses) to any REMIC regular interest.
Scheduled Principal Prepayments and Realized Losses will be
allocated
to the Lower Tier REMIC Regular Interests in the same manner as
such amounts are
allocated to the Master REMIC Classes referenced under the column
titled
"Allocation of Principal."
Set forth below are designations of Classes of Certificates to the
categories
used herein:
<TABLE>
<CAPTION>
<S>
<C>
Accretion Directed Certificates..........................
Class A-9 Certificates
Accrual Certificates.....................................
Class A-14 Certificates
Book-Entry Certificates..................................
All
Classes of Certificates other than the Physical
Certificates.
COFI Certificates........................................
None.
Component Certificates...................................
Class PO Certificates.
Components...............................................
Group 1A PO Component and Group 1B PO Component.
Delay Certificates.......................................
All
interest-bearing Classes of Certificates other
than any Non-Delay Certificates.
ERISA-Restricted Certificates............................
The
Residual Certificates and the Private
Certificates; the Retained Certificates until they
have been the subject of an ERISA-Qualifying
Underwriting; and Certificates of any Class that
ceases to have a rating of BBB- (or its equivalent)
or better from at least one Rating Agency.
Group 1A Certificates....................................
Class A-R, Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7 and Class A-8
Certificates, Group 1A PO Component and Group 1A
Subordinated Portion.
Group 1B Certificates....................................
Class A-9, Class A-10, Class A-11, Class A-12, Class
A-13, Class A-14, Class A-15, Class A-16 and Class
A-17 Certificates, Group 1B PO Component and Group
1B Subordinated Portion.
4
<PAGE>
LIBOR Certificates.......................................
Class A-10 and Class A-11 Certificates
Non-Delay Certificates...................................
LIBOR Certificates.
Notional Amount Certificates.............................
Class A-4, Class A-11 and Class A-X Certificates
Offered Certificates.....................................
All
Classes of Certificates other than the Private
Certificates.
Physical Certificates....................................
Class A-R Certificates and the Private Certificates.
Planned Principal Classes................................
None.
Principal Only Certificates..............................
Class PO Certificates.
Private Certificates.....................................
Class P, Class B-4, Class B-5 and Class B-6
Certificates.
Rating Agencies..........................................
Fitch, S&P and Moody's.
Regular Certificates.....................................
All
Classes of Certificates other than the Class A-R
Certificates.
Residual Certificate.....................................
Class A-R Certificates.
Retained Certificates....................................
Class A-X and Class PO Certificates.
Senior Certificates......................................
Class A-1, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class A-9,
Class A-10, Class A-11, Class A-12, Class A-13,
Class A-14,
Class A-15, Class A-16, Class A-17,
Class A-X, Class PO and Class A-R Certificates
Subordinated Certificates................................
Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5 and Class B-6 Certificates.
Subordinated Portions....................................
Group 1A Subordinated Portion and Group 1B
Subordinated Portion.
Targeted Principal Classes...............................
None.
Targeted Principal Component.............................
None.
</TABLE>
With respect to any of the foregoing designations as to which
the
corresponding reference is "None," all defined terms and provisions
in this
Agreement relating solely to such designations shall be of no force
or effect,
and any calculations in this Agreement incorporating references to
such
designations shall be interpreted without reference to such
designations and
amounts. Defined terms and provisions in
5
<PAGE>
this Agreement relating to statistical rating agencies not
designated above as
Rating Agencies shall be of no force or effect.
6
<PAGE>
ARTICLE ONE
DEFINITIONS
Section 1.01
Definitions.
Unless the context requires a different meaning, capitalized terms
are
used in this Agreement as defined below.
Accretion Directed Certificates: As specified in the
Preliminary
Statement.
Accretion Direction Rule: With respect to the Class A-14
Certificates
and any Distribution Date up to and including the Accrual
Termination Date, the
Accrual Amount shall be distributed as principal, sequentially, (i)
to the Class
A-9 Certificates, until its Class Certificate Balance is reduced to
zero and
(ii) to the Class A-14 Certificates.
Accrual Amount: With respect to the Class A-14 Certificates and
any
Distribution Date up to and including the Accrual Termination Date,
the amount
allocable to interest on the Class A-14 Certificates with respect
to such
Distribution Date pursuant to Section 4.02(a)(1)(i).
Accrual Certificates:
As specified in the Preliminary Statement.
Accrual Termination Date: With respect to the Class A-14
Certificates,
the earlier of (a) the Senior Credit Support Depletion Date and (b)
the
Distribution Date on which the Class Certificate Balance of the
Class A-9
Certificates has been reduced to zero.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at
any time, the
per annum rate equal to the Mortgage Rate less the Servicing Fee
Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Rate of
that
Mortgage Loan (as of the Due Date in the month preceding the month
in which such
Distribution Date occurs) less the Expense Fee Rate for that
Mortgage Loan.
Adjustment Date: Not
applicable.
Advance: The payment required to be made by the Servicer with
respect
to any Distribution Date pursuant to Section 4.01, the amount of
any such
payment being equal to the aggregate of payments of principal and
interest (net
of the Servicing Fee) on the Mortgage Loans that were due during
the related Due
Period and not received as of the close of business on the related
Determination
Date, together with an amount equivalent to interest on each REO
Property, net
of any net income from such REO Property, less the aggregate amount
of any such
delinquent payments that the Servicer has determined would
constitute a
Nonrecoverable Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person
controlling,
controlled or under common control with such Person. For purposes
of this
definition, "control" means the power to direct the
7
<PAGE>
management and policies of a Person, directly or indirectly,
whether through
ownership of voting securities, by contract, or otherwise and
"controlling" and
"controlled" shall have meanings correlative to the foregoing.
Affiliates also
include any entities consolidated with the requirements of
generally accepted
accounting principles.
Aggregate Planned
Balance: Not applicable.
Aggregate Targeted Balance: Not applicable.
Agreement: This
Pooling and Servicing Agreement and all amendments and
supplements.
Allocable Share: As to any Distribution Date and any Mortgage Loan
(i)
[reserved]; (ii) with respect to the Class PO Certificates, zero
and (iii) with
respect to each other Class of Certificates the product of (a) the
lesser of (I)
the ratio that the Required Coupon bears to such Adjusted Net
Mortgage Rate of
such Mortgage Loan and (II) one, multiplied by (b) the ratio that
the amount
calculated with respect to such Distribution Date for such Class,
pursuant to
clause (i) of the definition of Class Optimal Interest Distribution
Amount
(without giving effect to any reduction of such amount pursuant to
Section
4.02(d)) bears to the aggregate amount calculated with respect to
such
Distribution Date for each such Class of Certificates pursuant to
clause (i) of
the definition of Class Optimal Interest Distribution Amount
(without giving
effect to any reduction of such amounts pursuant to Section
4.02(d)).
Allocation Percentage:
The Group 1A Allocation Percentage or the Group
1B Allocation
Percentage, as
applicable.
Amount Available for Senior Principal: As to any Distribution Date,
the
Available Funds for such Distribution Date, reduced by the
aggregate amount
distributable (or allocable to the Accrual Amount, if applicable)
on such
Distribution Date in respect of interest on the Senior Certificates
pursuant to
Section 4.02(a)(1)(iii).
Amount Held for Future Distribution: As to any Distribution Date,
the
aggregate amount held in the Certificate Account at the close of
business on the
related Determination Date on account of (i) Principal Prepayments
received
after the last day of the related Prepayment Period and Liquidation
Proceeds and
Subsequent Recoveries received in the month of such Distribution
Date and (ii)
all Scheduled Payments due after the related Due Date.
Applicable Credit Support Percentage: As defined in Section 4.02(e).
Appraised Value: With respect to any Mortgage Loan, the Appraised
Value
of the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan
other than a Refinance Loan, the lesser of (a) the value of the
Mortgaged
Property based upon the appraisal made at the time of the
origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at
the time of
the origination of such Mortgage Loan; and (ii) with respect to a
Refinance
Loan, the value of the Mortgaged Property based upon the appraisal
made at the
time of the origination of such Refinance Loan.
Available Funds: As to any Distribution, the sum of (a) the
aggregate
amount held in the Certificate Account at the close of business on
the related
Determination Date, including any Subsequent Recoveries, net of the
Amount Held
for Future Distribution, net of Prepayment Charges and net of
amounts permitted
to be withdrawn from the Certificate Account pursuant to clauses
(i) - (viii),
inclusive, of Section 3.09(a) and amounts permitted to be withdrawn
from the
Distribution Account pursuant to clauses (i) - (ii), inclusive, of
Section
3.09(b), (b) the amount of the Advances for that Distribution Date,
(c) in
connection with Defective Mortgage Loans, the aggregate of the
Purchase Prices
and Substitution
8
<PAGE>
Adjustment Amounts deposited on the related Distribution Account
Deposit Date,
and (d) any amount deposited on the related Distribution Account
Deposit Date
pursuant to Section 3.10. The Holders of the Class P Certificates
will be
entitled to all Prepayment Charges received on the Mortgage Loans
and such
amounts will not be available for distribution to the Holders of
any other Class
of Certificates.
Bankruptcy Code: The
United States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is
reduced to zero.
Bankruptcy Loss: With respect to any Mortgage Loan, a Deficient
Valuation or Debt Service Reduction; provided, however, that a
Bankruptcy Loss
shall not be deemed a Bankruptcy Loss under this Agreement so long
as the
Servicer has notified the Trustee in writing that the Servicer is
diligently
pursuing any remedies that may exist in connection with the related
Mortgage
Loan and either (A) the related Mortgage Loan is not in default
with regard to
payments due under the Mortgage Loan or (B) delinquent payments of
principal and
interest under the related Mortgage Loan and any related escrow
payments in
respect of such Mortgage Loan are being advanced on a current basis
by the
Servicer, in either case without giving effect to any Debt Service
Reduction or
Deficient Valuation.
Bankruptcy Loss Coverage Amount: As of any date of determination,
the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy
Loss Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to
the Certificates since the Cut-off Date and (ii) any permissible
reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of
each Rating
Agency to the Trustee to the effect that any such reduction will
not result in a
downgrading, qualification or withdrawal of the then current
ratings assigned to
the Classes of Certificates rated by it.
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, 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.
Cap Counterparty:
Lehman Brothers Special Financing Inc.
Certificate: Any one
of the certificates issued by the Trust Fund and
executed by the
Trustee in substantially the forms attached as exhibits.
Certificate Account: The separate Eligible Account or Accounts
created
and maintained by the Servicer pursuant to Section 3.06(d) with a
depository
institution in the name of the Servicer for the benefit of the
Trustee on behalf
of Certificateholders and designated "IndyMac Bank, F.S.B., in
trust for the
registered holders of Residential Asset Securitization Trust
2006-A15, Mortgage
Pass-Through Certificates, Series 2006-O."
Certificate Balance: With respect to any Certificate (other than
the
Notional Amount Certificates) at any date of determination, the
maximum dollar
amount of principal to which the Holder thereof is then entitled
under this
Agreement, such amount being equal to the Denomination thereof (A)
plus any
increase in the Certificate Balance of such Certificate pursuant to
Section 4.02
due to the receipt of Subsequent Recoveries, (B) minus the sum of
(i) all
distributions of principal previously made with respect thereto and
(ii) all
Realized Losses allocated to that Certificate and, in the case of
any
9
<PAGE>
Subordinated Certificates, all other reductions in Certificate
Balance
previously allocated to that Certificate pursuant to Section 4.05
and (C) in the
case of any Class of Accrual Certificates, plus the Accrual Amount
added to the
Class Certificate Balance of such Class prior to such date. The
Notional Amount
Certificates do not have Certificate Balances.
Certificate Group: Not
applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person
who is the beneficial owner of the Book-Entry Certificate. For the
purposes of
this Agreement, in order for a Certificate Owner to enforce any of
its rights
under this Agreement, it shall first have to provide evidence of
its beneficial
ownership interest in a Certificate that is reasonably satisfactory
to the
Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register:
The register maintained pursuant to Section
5.02.
Certificate Registrar:
Deutsche Bank National
Trust Company and
its
successors and, if a successor trustee is appointed under this Agreement, the
successor.
Certificateholder or Holder: The person in whose name a Certificate
is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor or any affiliate of the Depositor is not
Outstanding and
the Percentage Interest evidenced thereby shall not be taken into
account in
determining whether the requisite amount of Percentage Interests
necessary to
effect a consent has been obtained, except that if the Depositor or
its
affiliates own 100% of the Percentage Interests evidenced by a
Class of
Certificates, the Certificates shall be Outstanding for purposes of
any
provision of this Agreement requiring the consent of the Holders of
Certificates
of a particular Class as a condition to the taking of any action.
The Trustee is
entitled to rely conclusively on a certification of the Depositor
or any
affiliate of the Depositor in determining which Certificates are
registered in
the name of an affiliate of the Depositor.
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 Certificate Balance: For any Class as of any date of
determination, the aggregate of the Certificate Balances of all
Certificates
of the Class as of that date.
Class Interest Shortfall: As to any Distribution Date and Class,
the
amount by which the amount described in clause (i) of the
definition of Class
Optimal Interest Distribution Amount for such Class exceeds the
amount of
interest actually distributed on such Class on such Distribution
Date pursuant
to such clause (i).
Class Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class, the sum of (i) one
month's
interest accrued during the related Interest Accrual Period at the
Pass-Through
Rate for such Class, on the related Class Certificate Balance or
Notional
Amount, as applicable, immediately prior to such Distribution Date,
subject to
reduction pursuant to Section 4.02(d), and (ii) any Class Unpaid
Interest
Amounts for such Class.
10
<PAGE>
Class PO Deferred Amount: As to any Distribution Date and each
PO
Component, the related Allocation Percentage of the applicable PO
Percentage of
each Realized Loss, other than any Excess Loss, on a Discount
Mortgage Loan to
be allocated to that PO Component on such Distribution Date on or
prior to the
Senior Credit Support Depletion Date or previously allocated to
that PO
Component and not yet paid to the Holders of that Class PO
Component.
Class Subordination Percentage: With respect to any Distribution
Date
and each Class of Subordinated Certificates, the fraction
(expressed as a
percentage) the numerator of which is the Class Certificate Balance
of such
Class of Subordinated Certificates immediately prior to such
Distribution Date
and the denominator of which is the aggregate Class Certificate
Balance of all
Classes of Certificates immediately prior to such Distribution
Date.
Class Unpaid Interest Amounts: As to any Distribution Date and
Class of
interest-bearing Certificates, the amount by which the aggregate
Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the
amount
distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
Closing Date: November
28, 2006.
Code: The Internal Revenue Code of 1986, including any successor
or
mendatory provisions.
COFI: Not
applicable.
COFI Certificates: Not
applicable.
Commission: The United
States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied
by
one-twelfth multiplied by the aggregate Stated Principal Balance of
the Mortgage
Loans as of the first day of the prior month.
Component: As
specified in the Preliminary Statement.
Component Balance: With respect to any Component and any
Distribution
Date, its Initial Component Balance (A) plus any Subsequent
Recoveries added to
the Component Balance of such Component pursuant to Section 4.02,
(B) minus the
sum of all amounts applied in reduction of the principal balance of
such
Component and Realized Losses allocated thereto and increased due
to the receipt
of Subsequent Recoveries.
Component Certificates: As specified in the Preliminary
Statement.
Co-op Shares: Shares
issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and improvements
constituting
the Cooperative Property and that governs the Cooperative Property,
which
Cooperative Corporation must qualify as a Cooperative Housing
Corporation under
section 216 of the Code.
Cooperative Loan: Any
Mortgage Loan secured by Co-op Shares and a P
roprietary Lease.
11
<PAGE>
Cooperative Property: The real property and improvements owned by
the
Cooperative Corporation, including the allocation of individual
dwelling units
to the holders of the Co-op Shares of the Cooperative
Corporation.
Cooperative Unit: A
single family dwelling located in a Cooperative
Property.
Corporate Trust Office: The designated office of the Trustee in
the
State of California at which at any particular time its corporate
trust business
with respect to this Agreement is administered, which office at the
date of the
execution of this Agreement is located at 1761 East St. Andrew
Place, Santa Ana,
California 92705, Attn: Mortgage Administration-IN0615 (IndyMac
MBS, Inc.,
Residential Asset Securitization Trust 2006-A15, Mortgage
Pass-Through
Certificates, Series 2006-O), and which is the address to which
notices to and
correspondence with the Trustee should be directed. With respect to
the
Certificate Registrar and presentment of Certificates for
registration or
transfer, exchange or final payment, the Corporate Trust Office is
located at DB
Services Tennessee, 648 Grassmere Park Road, Nashville, Tennessee
37211-3658,
Attention: Transfer Unit.
Corridor Contract: The interest rate corridor cap agreement between
the
Supplemental Interest Trust and the Cap Counterparty evidenced by
confirmation
Global ID: 2741095, 2741098 relating to the Class A-10
Certificates, a form of
which is attached to this Agreement as Exhibit P-1.
Cut-off Date: November
1, 2006.
Cut-off Date Pool Principal Balance: $478,765,558.53.
Cut-off Date Principal Balance: As to any Mortgage Loan, its
Stated
Principal Balance as of the close
of business on the Cut-off Date.
Debt Service Reduction: For any Mortgage Loan, a reduction by a
court
of competent jurisdiction in a proceeding under the Bankruptcy Code
in the
Scheduled Payment for the Mortgage Loan that became final and
non-appealable,
except a reduction resulting from a Deficient Valuation or a
reduction that
results in a permanent forgiveness of principal.
Defective Mortgage Loan: Any Mortgage Loan that is required to
be
repurchased pursuant to Section 2.02 or 2.03.
Deficient Valuation: For any Mortgage Loan, a valuation by a court
of
competent jurisdiction of the Mortgaged Property in an amount less
than the then
outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount
of principal to be paid in connection with any Scheduled Payment
that results in
a permanent forgiveness of principal, which valuation or reduction
results from
an order of the court that is final and non-appealable in a
proceeding under the
Bankruptcy Code.
Definitive Certificates: Any Certificate evidenced by a
Physical
Certificate and any Certificate issued in lieu of a Book-Entry
Certificate
pursuant to Section 5.02(e).
Delay Certificates: As
specified in the Preliminary Statement.
Delay Delivery Certification: A certification substantially in
the
form of Exhibit G-2.
Delay Delivery Mortgage Loans: The Mortgage Loans identified on
the
Mortgage Loan Schedule for which none of a related Mortgage File or
neither the
Mortgage Note nor a lost note affidavit
12
<PAGE>
for a lost Mortgage Note has been delivered to the Trustee by the
Closing Date.
The Depositor shall deliver the Mortgage Files to the Trustee:
(A) for at least 70% of the Mortgage Loans, not later than the
Closing
Date, and
(B) for the
remaining 30% of the Mortgage Loans, not later than
five Business Days following the
Closing Date.
To the extent that the Seller is in possession of any Mortgage File
for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage
File to the
Trustee as provided in Section 2.01, the Seller shall hold the
files as
Servicer, as agent and in trust for the Trustee.
Deleted
Mortgage Loan: As
defined in Section 2.03(c).
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment
due
on a Due Date is not made by the close of business on the next
scheduled Due
Date for such Mortgage Loan. A Mortgage Loan is "30 days
Delinquent" if such
monthly payment has not been received by the close of business on
the
corresponding day of the month immediately succeeding the month in
which such
monthly payment was due. The determination of whether a Mortgage
Loan is "60
days Delinquent", "90 days Delinquent", etc. shall be made in a
like manner.
Denomination: For each Certificate, the amount on the face of
the
Certificate as the "Initial Certificate Balance of this
Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the
foregoing,
the Percentage Interest appearing on the face of the
Certificate.
Depositor: IndyMac
MBS, Inc., a Delaware corporation, or its successor
in interest.
Depository: The
initial Depository shall be The Depository Trust
Company, the
nominee of which is
CEDE & Co., as the
registered Holder of
the
Book-Entry
Certificates. The
Depository
shall at all
times be a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC.
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.
Derivative Notional Balance: For each Distribution Date prior to
the
Termination Date, the amount described in Schedule 1 to the
Prospectus
Supplement. After the Termination Date, the Derivative Notional
Balance will be
equal to zero.
Determination Date: As to any Distribution Date, the 18th day of
each
month or if that day is not a Business Day the next Business Day,
except that if
the next Business Day is less than two Business Days before the
related
Distribution Date, then the Determination Date shall be the
Business Day
preceding the 18th day of the month.
Discount Mortgage Loan: Any Mortgage Loan with an Adjusted Net
Mortgage
Rate that is less than the Required Coupon.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name
of the Trustee
for the benefit of the Certificateholders and designated "Deutsche
Bank National
Trust Company in trust for registered holders of Residential
Asset
Securitization Trust 2006-A15, Mortgage Pass-Through Certificates,
Series
2006-O." Funds in the
13
<PAGE>
Distribution Account shall be held in trust for the
Certificateholders for the
uses and purposes set forth in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:30
P.M. Pacific time on the Business Day preceding the Distribution
Date.
Distribution Date: The 25th day of each calendar month after
the
initial issuance of the Certificates, or if that day is not a
Business Day, the
next Business Day, commencing in December 2006.
Due Date: For any Mortgage Loan and Distribution Date, the first
day of
the month in which such Distribution Date occurs.
Due Period: For any Distribution Date, the period commencing on
the
second day of the month preceding the month in which the
Distribution Date
occurs and ending on the first day of the month in which the
Distribution Date
occurs.
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) have the highest short-term
ratings of
Moody's or Fitch and one of the two highest short-term ratings of
S&P, if S&P is
a Rating Agency at the time any amounts are held on deposit
therein, or
(ii) an account or accounts in a depository institution or
trust
company in which such accounts are insured by the FDIC (to the
limits
established by the FDIC) and the uninsured deposits in which
accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel
delivered to
the Trustee and to each Rating Agency, the Certificateholders have
a claim with
respect to the funds in such account or a perfected first priority
security
interest against any collateral (which shall be limited to
Permitted
Investments) securing such funds that is superior to claims of any
other
depositors or creditors of the depository institution or trust
company in which
such account is maintained, or
(iii) a trust account or accounts maintained with (a) the trust
department of a federal or state chartered depository institution
or (b) a trust
company, acting in its fiduciary capacity or
(iv) any other account acceptable to each Rating Agency..
Eligible Accounts may bear interest, and may include, if otherwise
qualified
under this definition, accounts maintained with the Trustee.
ERISA: The Employee Retirement Income Security Act of 1974, as
amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that meets the requirements of
the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
14
<PAGE>
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 Loss: The amount of any (i) Fraud Loss on the Mortgage
Loans
realized after the Fraud Loss Coverage Termination Date, (ii)
Special Hazard
Loss on the Mortgage Loans realized after the Special Hazard
Coverage
Termination Date or (iii) Bankruptcy Loss on the Mortgage Loans
realized after
the Bankruptcy Coverage Termination Date.
Excess Proceeds: For
any Liquidated Mortgage Loan, the excess of
(a) all Liquidation Proceeds from the Mortgage Loan received in
the
calendar month in which the Mortgage Loan became a Liquidated
Mortgage Loan, net
of any amounts previously reimbursed to the Servicer as
Nonrecoverable Advances
with respect to the Mortgage Loan pursuant to Section 3.09(a)(iii),
over
(b) the sum of (i) the unpaid principal balance of the
Liquidated
Mortgage Loan as of the Due Date in the month in which the Mortgage
Loan became
a Liquidated Mortgage Loan plus (ii) accrued interest at the
Mortgage Rate from
the Due Date for which interest was last paid or advanced (and not
reimbursed)
to Certificateholders up to the Due Date applicable to the
Distribution Date
following the calendar month during which the liquidation
occurred.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the
rules and regulations promulgated thereunder.
Exchange Act Reports: Any reports on Form 10-D, Form 8-K and Form
10-K
required to be filed by the Depositor with respect to the Trust
Fund under the
Exchange Act.
Expense Fee Rate: As to each Mortgage Loan, the sum of (a) the
related
Servicing Fee Rate and (b) the Trustee Fee Rate.
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.
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 2006-O, or
any other
address Fitch furnishes to the Depositor and the Servicer.
FNMA: The Federal National Mortgage Association, a federally
chartered
and privately owned corporation organized and existing under the
Federal
National Mortgage Association Charter Act, or any successor
thereto.
Form 10-D Disclosure Item: With respect to any Person, any
material
litigation or governmental proceedings pending against such Person,
or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer,
if such
Person has actual knowledge thereof.
15
<PAGE>
Form 10-K Disclosure Item: With respect to any Person, (a) Form
10-D
Disclosure Item, and (b) any affiliations or relationships between
such Person
and any Item 1119 Party.
Fraud Loan: A Liquidated Mortgage Loan as to which a Fraud Loss
has
occurred.
Fraud Loss Coverage Amount: As of the Closing Date,
$9,575,311.16,
subject to reduction from time to time, by the amount of Fraud
Losses allocated
to the Certificates. In addition, on each anniversary of the
Cut-off Date, the
Fraud Loss Coverage Amount will be reduced as follows: (a) on the
first, second,
third and fourth anniversaries of the Cut-off Date, to an amount
equal to the
lesser of (i) 2% of the then current Stated Principal Balance of
the Mortgage
Loans in the case of the first such anniversary and 1% of the
then-current
Stated Principal Balance of the Mortgage Loans in the case of the
second, third
and fourth such anniversaries and (ii) the excess of the Fraud Loss
Coverage
Amount as of the preceding anniversary of the Cut-off Date over the
cumulative
amount of Fraud Losses allocated to the Certificates since such
preceding
anniversary; and (b) on the fifth anniversary of the Cut-off Date,
to zero.
Fraud Loss Coverage Termination Date: The point in time at which
the
Fraud Loss Coverage Amount is reduced to zero.
Fraud Losses: Realized Losses on Mortgage Loans as to which a loss
is
sustained by reason of a default arising from fraud, dishonesty
or
misrepresentation in connection with the related Mortgage Loan,
including a loss
by reason of the denial of coverage under any related Primary
Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Group: Group 1A or
Group 1B, as applicable.
Group 1A: The Class A-R, Class A-1, Class A-2, Class A-3, Class
A-4,
Class A-5, Class A-6, Class A-7 and Class A-8 Certificates and the
Group 1A PO
Component and the Group 1A Subordinated Portion.
Group 1A Allocation Percentage: For any Distribution Date will
equal
the percentage equivalent of a fraction, the numerator of which is
the sum of
(x) the aggregate Class Certificate Balance of the Class A-R, Class
A-1, Class
A-2, Class A-3, Class A-5, Class A-6, Class A-7 and Class A-8
Certificates, (y)
the Component Balance of the Group 1A PO Component and (z) the
Group 1A
Subordinated Portion Balance, and the denominator of which is the
aggregate
Stated Principal Balance of Mortgage Loans as of the Due Date in
the month of
such Distribution Date (after giving effect to the Principal
Prepayments in the
Prepayment Period related to that Distribution Date).
Group 1A Non-PO Collateral Balance: For any Distribution Date
will
equal the aggregate Class Certificate Balance of the Class A-R,
Class A-1, Class
A-2, Class A-3, Class A-5, Class A-6, Class A-7 and Class A-8
Certificates and
the Group 1A Subordinated Portion Balance for that Distribution
Date.
Group 1A Prepayment Assumption: The prepayment model used in
the
Prospectus Supplement, which represents an assumed rate of
prepayment each month
relative to the then outstanding principal balance of a pool of
mortgage loans
for the life of those mortgage loans. A 100% Prepayment Assumption
assumes a
constant prepayment rate (a "CPR") of 6% per annum and an
additional
approximately 1.0909090909% per annum in each month thereafter
until the twelfth
month. Beginning in the twelfth month and in each month thereafter
during the
life of the mortgage loans, a 100% Prepayment Assumption assumes a
CPR of 18%
per annum each month. 0% PPC assumes no prepayments.
Correspondingly, 150% PPC
assumes prepayment rates equal to two times the related PPC, and so
forth.
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<PAGE>
Group 1A Priority Amount: For any Distribution Date, the sum of (i)
the
product of (A) the Group 1A Scheduled Principal Distribution
Amount, (B) the
Group 1A Priority Percentage and (C) the Shift Percentage and (ii)
the product
of (A) the Group 1A Unscheduled Principal Distribution Amount, (B)
the Group 1A
Priority Percentage and (C) the Shift Percentage.
Group 1A Priority Percentage: For any Distribution Date, the
percentage
equivalent of a fraction, the numerator of which is the aggregate
Class
Certificate Balance of the Class A-5 and Class A-7 Certificates
immediately
prior to that Distribution Date, and the denominator of which is
the aggregate
Class Certificate Balance of the Group 1A Non-Collateral Balance
immediately
prior to that Distribution Date.
Group 1A Scheduled Principal Distribution Amount: For any
Distribution
Date will equal the Non-PO Percentage of all amounts described in
subclauses (a)
through (d) of clause (i) of the definition of Non-PO Formula
Principal Amount
for Group 1A for such Distribution Date; provided, however, that if
a Bankruptcy
Loss that is an Excess Loss is sustained with respect to a Mortgage
Loan that is
not a Liquidated Mortgage Loan, the Group 1A Scheduled Principal
Distribution
Amount will be reduced on the related Distribution Date by the
product of (i)
the Group 1A Allocation Percentage and (ii) the applicable Non-PO
Percentage of
the principal portion of such Bankruptcy Loss.
Group 1A Subordinated Portion: The portion of the Subordinate
Certificates related to Group 1A.
Group 1A Subordinated Portion Balance: For each Distribution Date
will
equal $11.153,896.92 minus all amounts applied and losses allocated
in reduction
of the Subordinated Portion Balance and increased by the Group 1A
Allocation
Percentage of Subsequent Recoveries on the Mortgage Loans.
Group 1A Unscheduled Principal Distribution Amount: For any
Distribution Date will equal the Non-PO Percentage of the sum of
the amounts set
forth under subclauses (e) and (f) of clause (i) of the definition
of Non-PO
Formula Principal Amount for Group 1A for such Distribution Date
and (ii) any
Subsequent Recoveries described in clause (ii) of the definition of
Non-PO
Formula Principal Amount for Group 1A for that Distribution
Date.
Group 1B: The Class A-9, Class A-10, Class A-11, Class A-12,
Class
A-13, Class A-14, Class A-15, Class A-16 and Class A-17
Certificates and the
Group 1B PO Component and the Group 1B Subordinated Portion.
Group 1B Allocation Percentage: For any Distribution Date will
equal
the percentage equivalent of a fraction, the numerator of which is
the sum of
(x) the aggregate Class Certificate Balance of the Class A-9, Class
A-10, Class
A-12, Class A-13, Class A-14, Class A-15, Class A-16 and Class A-17
Certificates
(y) the Component Balance of the Group 1B PO Component and (z) the
Group 1B
Subordinated Portion Balance and the denominator of which is the
aggregate
Stated Principal Balance of the Mortgage Loans as of the Due Date
in the month
of such Distribution Date (after giving effect to the Principal
Prepayments in
the Prepayment Period related to that Distribution Date).
Group 1B Non-PO Collateral Balance: For any Distribution Date
will
equal the aggregate Class Certificate Balance of the Class A-9,
Class A-10,
Class A-12, Class A-13, Class A-14, Class A-15, Class A-16 and
Class A-17
Certificates and the Group 1B Subordinated Portion Balance for that
Distribution
Date.
Group 1B Prepayment Assumption: The prepayment model used in
the
Prospectus Supplement, which represents an assumed rate of
prepayment each month
relative to the then outstanding principal
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<PAGE>
balance of a pool of mortgage loans for the life of those mortgage
loans. A 100%
Prepayment Assumption assumes a CPR of 10% per annum and an
additional
approximately 1.4545454545% per annum in each month thereafter
until the twelfth
month. Beginning in the twelfth month and in each month thereafter
during the
life of the mortgage loans, a 100% Prepayment Assumption assumes a
CPR of 24%
per annum each month. 0% PPC assumes no prepayments.
Correspondingly, 150% PPC
assumes prepayment rates equal to two times the related PPC, and so
forth.
Group 1B Priority Amount: For any Distribution Date, the sum of (i)
the
product of (A) the Group 1B Scheduled Principal Distribution
Amount, (B) the
Group 1B Priority Percentage and (C) the Shift Percentage and (ii)
the product
of (A) the Group 1B Unscheduled Principal Distribution Amount, (B)
the Group 1B
Priority Percentage and (C) the Shift Percentage.
Group 1B Priority Percentage: For any Distribution Date, the
percentage
equivalent of a fraction, the numerator of which is the aggregate
Class
Certificate Balance of the Class A-13, Class A-15 and Class A-17
Certificates
immediately prior to that Distribution Date, and the denominator of
which is the
aggregate Class Certificate Balance of the Group 1B Non-PO
Collateral Balance
immediately prior to that Distribution Date.
Group 1B Scheduled Principal Distribution Amount: For any
Distribution
Date will equal the Non-PO Percentage of all amounts described in
subclauses (a)
through (d) of clause (i) of the definition of Non-PO Formula
Principal Amount
for Group 1B for such Distribution Date; provided, however, that if
a Bankruptcy
Loss that is an Excess Loss is sustained with respect to a Mortgage
Loan that is
not a Liquidated Mortgage Loan, the Group 1B Scheduled Principal
Distribution
Amount will be reduced on the related Distribution Date by the
product of (i)
the Group 1B Allocation Percentage and (ii) the Non-PO Percentage
of the
principal portion of such Bankruptcy Loss.
Group 1B Subordinated Portion: The portion of the Subordinate
Certificates related to Group 1B.
Group 1B Subordinated Portion Balance: For each Distribution Date
will
equal $16,376,173.17 minus all amounts applied and losses allocated
in reduction
of the Subordinated Portion Balance and increased by the Group 1B
Allocation
Percentage of Subsequent Recoveries on the Mortgage Loans.
Group 1B Unscheduled Principal Distribution Amount: For any
Distribution Date will equal the Non-PO Percentage of the sum of
the amounts set
forth under subclauses (e) and (f) of clause (i) of the definition
of Non-PO
Formula Principal Amount for Group 1B for such Distribution Date
and (ii) any
Subsequent Recoveries described in clause (ii) of the definition of
Non-PO
Formula Principal Amount for Group 1B for that Distribution
Date.
Indirect Participant: A broker, dealer, bank, or other
financial
institution or other Person that clears through or maintains a
custodial
relationship with a Depository Participant.
Initial Bankruptcy Loss Coverage Amount: $154,202.69.
Initial Component Balance: As specified in the Preliminary
Statement.
Initial LIBOR Rate:
5.32% per annum.
Insurance Policy: For any Mortgage Loan included in the Trust Fund,
any
insurance policy, including all riders and endorsements thereto in
effect,
including any replacement policy or policies for any Insurance
Policies.
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<PAGE>
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than any amount included in
such Insurance
Proceeds in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the calendar month prior to
the month of
such Distribution Date. With respect to each Class of Non-Delay
Certificates and
any Distribution Date, the one-month period commencing on the 25th
day of the
month preceding the month in which such Distribution Date occurs
and ending on
the 24th day of the month in which such Distribution Date occurs.
All Classes of
Certificates will accrue interest on the basis of a 360-day year
consisting of
twelve 30-day months.
Interest Determination Date: With respect to (a) any Interest
Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual
Period for the
COFI Certificates for which the applicable Index is LIBOR, the
second Business
Day prior to the first day of such Interest Accrual Period.
Interest Settlement Rate: As defined in Section 4.09.
Item 1119 Party: The Depositor, the Seller, the Servicer, the
Trustee,
the Cap Counterparty and any other material transaction party, as
identified in
Exhibit T, as updated pursuant to Section 11.04.
Last Scheduled Distribution Date: The Distribution Date in the
month
immediately following the month of the latest scheduled maturity
date for any of
the Mortgage Loans.
Latest Possible Maturity Date: The Distribution Date following
the
third anniversary of the scheduled maturity date of the Mortgage
Loan having the
latest scheduled maturity date as of the Cut-off Date.
Lender PMI Loans: Mortgage Loans with respect to which the
lender
rather than the borrower acquired the primary mortgage guaranty
insurance and
charged the related borrower an interest premium.
LIBOR: The London interbank offered rate for one month United
States
dollar deposits calculated in the manner described in Section
4.09.
LIBOR Determination Date: For any Interest Accrual Period, the
second
London Business Day prior to the commencement of such Interest
Accrual Period.
Limited Exchange Act Reporting Obligations: The obligations of
the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with
respect to
notice and information to be provided to the Depositor and Article
11 (except
Section 11.07(a)(i) and (ii)).
Liquidated Mortgage Loan: For any Distribution Date, a
defaulted
Mortgage Loan (including any REO Property) that was liquidated in
the calendar
month preceding the month of the Distribution Date and as to which
the Servicer
has certified (in accordance with this Agreement) that it has
received all
amounts it expects to receive in connection with the liquidation of
the Mortgage
Loan, including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds
regardless
of when received, received in connection with the partial or
complete
liquidation of defaulted Mortgage Loans, whether through trustee's
sale,
foreclosure sale, or otherwise or amounts received in connection
with any
19
<PAGE>
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: Not
applicable.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date
of
determination, is the fraction whose numerator is the original
principal balance
of the related Mortgage Loan at that date of determination and
whose denominator
is the Appraised Value of the related Mortgaged Property.
London Business Day: Any day on which dealings in deposits of
United
States dollars are transacted in the London interbank market.
Lost Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the
Mortgagor
to the Cooperative Corporation pursuant to the Proprietary
Lease.
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 Investors Service, Inc., or any successor thereto.
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.
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<PAGE>
Mortgage Loans: Such of the mortgage loans transferred and assigned
to
the Trustee pursuant to this Agreement, as from time to time are
held as a part
of the Trust Fund (including any REO Property), the Mortgage Loans
so held being
identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage Loan Schedule: As of any date, the list set forth in
Schedule
I of Mortgage Loans included in the Trust Fund on that date. The
Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the
following
information with respect to each Mortgage Loan:
(i) the loan
number;
(ii)
the street address of the Mortgaged Property,
including the zip code;
(iii) the
maturity date;
(iv)
the original principal balance;
(v) the
Cut-off Date Principal Balance;
(vi)
the first payment date of the Mortgage Loan;
(vii) the
Scheduled Payment in effect as of the Cut-off
Date;
(viii) the
Loan-to-Value Ratio at origination;
(ix)
a code indicating whether the residential dwelling at
the time of origination was represented to be
owner-occupied;
(x) a code
indicating whether the residential dwelling is
either (a) a detached single family dwelling, (b) a
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) a
code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xv)
the Servicing Fee Rate;
(xvi) a
code indicating whether the Mortgage Loan is a
Lender PMI Loan;
(xvii) the
coverage amount of any mortgage insurance;
(xviii) with respect
to the Lender PMI Loans, the interest
premium charged by the lender;
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<PAGE>
(xix) a
code indicating whether the Mortgage Loan is a
Delay Delivery Mortgage Loan; and
(xx)
a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan.
The schedule shall also set forth the total of the amounts
described under (v)
above for all of the Mortgage Loans.
Mortgage Note: The original executed note or other evidence of
the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage Rate: The annual rate of interest borne by a Mortgage
Note
from time to time (net of the interest premium for any Lender PMI
Loan).
Mortgaged Property: The underlying property securing a Mortgage
Loan,
which, with respect to a Cooperative Loan, is the related Co-op
Shares and
Proprietary Lease.
Mortgagor: The
obligors on a Mortgage Note.
National Cost of Funds Index: The National Monthly Median Cost of
Funds
Ratio to SAIF-Insured Institutions published by the OTS.
Net Prepayment Interest Shortfall: As to any Distribution Date,
the
amount by which the aggregate of Prepayment Interest Shortfalls for
such
Distribution Date exceeds the Compensating Interest for such
Distribution Date.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Non-Discount Mortgage Loan: As to any Mortgage Loan with an
Adjusted
Net Mortgage Rate that is greater than or equal to the Required
Coupon.
Non-PO Formula Principal Amount: As to any Distribution Date and
for
each Group, the sum of (i) the applicable Non-PO Percentage of (a)
the
applicable Allocation Percentage of all monthly payments of
principal due on
each Mortgage Loan on the related Due Date, (b) the applicable
Allocation
Percentage of the principal portion of the purchase price of each
Mortgage Loan
that was repurchased by the Seller pursuant to this Agreement as of
such
Distribution Date, excluding any Mortgage Loan that was repurchased
due to a
modification of the Mortgage Loan in lieu of refinancing, (c) the
applicable
Allocation Percentage of the Substitution Adjustment Amount in
connection with
any Deleted Mortgage Loan received with respect to such
Distribution Date, (d)
the applicable Allocation Percentage of any Insurance Proceeds or
Liquidation
Proceeds allocable to recoveries of principal of Mortgage Loans
that are not yet
Liquidated Mortgage Loans received during the calendar month
preceding the month
of such Distribution Date, (e) the applicable Allocation Percentage
with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during
the calendar
month preceding the month of such Distribution Date, the amount of
Liquidation
Proceeds allocable to principal received with respect to such
Mortgage Loan, and
(f) the applicable Allocation Percentage of all partial and full
Principal
Prepayments received during the related Prepayment Period,
including the
principal portion of the purchase price of any Mortgage Loan that
was
repurchased due to a modification of the Mortgage Loan in lieu of
refinancing
and (ii) the applicable Allocation Percentage of (A) any Subsequent
Recoveries
received during the calendar month preceding the month of such
Distribution
Date, or (B) with respect to Subsequent Recoveries attributable to
a Discount
Mortgage Loan that incurred (1) an Excess Loss or (2) a
Realized
22
<PAGE>
Loss after the Senior Credit Support Depletion Date, the Non-PO
Percentage of
any Subsequent Recoveries received during the calendar month
preceding the month
of such Distribution Date.
Non-PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed as a percentage) the numerator of which is the Adjusted
Net Mortgage
Rate of such Discount Mortgage Loan and the denominator of which is
the Required
Coupon. As to any Non-Discount Mortgage Loan, 100%.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made by the Servicer, that, in the good faith
judgment of the
Servicer, will not be ultimately recoverable by the Servicer from
the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant
to
Section 9.02 to the effect that final distribution on any of the
Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class A-X Certificates and
any
Distribution Date, an amount equal to the product of (i) a
fraction, the
numerator of which is the excess of (a) the weighted average of the
Adjusted Net
Mortgage Rates for the Non-Discount Mortgage Loans as of the Due
Date in the
prior month (after giving effect to Principal Prepayments received
in the
Prepayment Period related to that prior Due Date) over (b) the
Required Coupon,
and the denominator of which is the Required Coupon and (ii) the
aggregate
Stated Principal Balance of the Non-Discount Mortgage Loans as of
the Due Date
in the prior month (after giving effect to Principal Prepayments
received in the
Prepayment Period related to that prior Due Date). With respect to
the Class A-4
Certificates and any Distribution Date, will equal the product of
(i) a
fraction, the numerator of which is 0.25% and the denominator of
which is 6.00%
and (ii) the Class Certificate Balance of the Class A-6
Certificates for that
Distribution Date. With respect to the Class A-11 Certificates and
any
Distribution Date, an amount equal to the aggregate Class
Certificate Balance of
the Class A-10 Certificates immediately prior to that Distribution
Date.
Notional Amount Certificates: As specified in the
Preliminary
Statement.
Offered Certificates:
As specified in the Preliminary Statement.
Officer's Certificate: A certificate (i) signed by the Chairman of
the
Board, the Vice Chairman of the Board, the President, a Managing
Director, a
Vice President (however denominated), an Assistant Vice President,
the
Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided
for in this
Agreement, signed by a Servicing Officer, as the case may be, and
delivered to
the Depositor and the Trustee as required by this Agreement.
Opinion of Counsel: For the interpretation or application of the
REMIC
Provisions, a written opinion of counsel who (i) is in fact
independent of the
Depositor and the Servicer, (ii) does not have any direct financial
interest in
the Depositor or the Servicer or in any affiliate of either, and
(iii) is not
connected with the Depositor or the Servicer as an officer,
employee, promoter,
underwriter, trustee, partner, director, or person performing
similar functions.
Otherwise, a written opinion of counsel who may be counsel for the
Depositor or
the Servicer, including in-house counsel, reasonably acceptable to
the Trustee.
Original Applicable Credit Support Percentage: With respect to each
of
the following Classes of Subordinated Certificates, the
corresponding percentage
described below, as of the Closing Date:
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<PAGE>
Class B-1.................................... 5.75%
Class B-2.................................... 3.60%
Class B-3.................................... 2.40%
Class B-4.................................... 1.70%
Class B-5.................................... 0.95%
Class B-6.................................... 0.40%
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with
the origination of a Refinance Loan.
Original Subordinated Principal Balance: The aggregate Class
Certificate Balance of the Subordinated Certificates as of the
Closing Date
OTS: The Office of
Thrift Supervision.
Outside Reference Date: Not applicable.
Outstanding: For the Certificates as of any date of determination,
all
Certificates theretofore executed and authenticated under this
Agreement except:
(i)
Certificates theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii)
Certificates in exchange for which or in lieu of
which other Certificates have been executed and
delivered by the Trustee pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a
Stated Principal Balance greater than zero that was not the subject
of a
Principal Prepayment in Full before the Due Date or during the
related
Prepayment Period and that did not become a Liquidated Mortgage
Loan before the
Due Date.
Overcollateralized Group: Not applicable.
Ownership Interest: As to any Residual Certificate, any
ownership
interest in the Certificate including any interest in the
Certificate as its
Holder and any other interest therein, whether direct or indirect,
legal or
beneficial.
Pass-Through Rate: For each Class of Certificates, the per annum
rate
set forth or calculated in the manner described in the Preliminary
Statement.
Percentage Interest: As to any Certificate, the percentage
interest
evidenced thereby in distributions required to be made on the
related Class, the
percentage interest being set forth on its face or equal to the
percentage
obtained by dividing the Denomination of the Certificate by the
aggregate of the
Denominations of all Certificates of the same Class.
Performance Certification: As defined in Section 11.05.
Permitted Investments:
At any time, any of the following:
24
<PAGE>
(i) obligations of the United States or any agency thereof backed
by
the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any state
of
the United States or the District of Columbia receiving the highest
long-term
debt rating of each Rating Agency, or any lower rating that will
not result in
the downgrading, qualification or withdrawal of the ratings then
assigned to the
Certificates by the Rating Agencies, as evidenced by a signed
writing delivered
by each Rating Agency;
(iii) commercial or finance company paper that is then receiving
the
highest commercial or finance company paper rating of each Rating
Agency, or any
lower rating that will not result in the downgrading, qualification
or
withdrawal of the ratings then assigned to the Certificates by the
Rating
Agencies , as evidenced by a signed writing delivered by each
Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers'
acceptances issued by any depository institution or trust company
incorporated
under the laws of the United States or of any state thereof and
subject to
supervision and examination by federal or state banking
authorities, provided
that the commercial paper or long-term unsecured debt obligations
of the
depository institution or trust company (or in the case of the
principal
depository institution in a holding company system, the commercial
paper or
long-term unsecured debt obligations of the holding company, but
only if 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 the
securities, or any
lower rating that will not result in the downgrading, qualification
or
withdrawal of the ratings then assigned to the Certificates by the
Rating
Agencies, as evidenced by a signed writing delivered by each Rating
Agency;
(v) demand or time deposits or certificates of deposit issued by
any
bank or trust company or savings institution to the extent that the
deposits are
fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance
company, or other corporation acceptable to the Rating Agencies at
the time of
the issuance of the agreements, as evidenced by a signed writing
delivered by
each Rating Agency;
(vii) repurchase obligations with respect to any security described
in
clauses (i) and (ii) above, in either case entered into with a
depository
institution or trust company (acting as principal) described in
clause (iv)
above; provided that such repurchase obligation would be accounted
for as a
financing arrangement under generally accepted accounting
principles;
(viii) securities (other than stripped bonds, stripped coupons,
or
instruments sold at a purchase price in excess of 115% of their
face amount)
bearing interest or sold at a discount issued by any corporation
incorporated
under the laws of the United States or any state thereof that, at
the time of
the investment, have one of the two highest ratings of each Rating
Agency
(except if the Rating Agency is Moody's the rating shall be the
highest
commercial paper rating of Moody's for the securities), or any
lower rating that
will not result in the downgrading, qualification or withdrawal of
the ratings
then assigned to the Certificates by the Rating Agencies, as
evidenced by a
signed writing delivered by each Rating Agency and that have a
maturity date
occurring no more than 365 days from their date of issuance;
(ix) units of a taxable money-market portfolio having the
highest
rating assigned by each Rating Agency (except (i) if Fitch is a
Rating Agency
and has not rated the portfolio, the highest rating assigned by
Moody's and (ii)
if S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and
restricted to
obligations issued or guaranteed by the United States of America or
entities
whose
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obligations are backed by the full faith and credit of the United
States
of America and repurchase agreements collateralized by such
obligations; and
(x) any other investments bearing interest or sold at a
discount
acceptable to each Rating Agency that will not result in the
downgrading,
qualification or withdrawal of the ratings then assigned to the
Certificates by
the Rating Agencies, as evidenced by a signed writing delivered by
each Rating
Agency.
No Permitted Investment may (i) evidence the right to receive
interest
only payments with respect to the obligations underlying the
instrument, (ii) be
sold or disposed of before its maturity or (iii) be any obligation
of the Seller
or any of its Affiliates. Any Permitted Investment shall be
relatively risk free
and no options or voting rights shall be exercised with respect to
any Permitted
Investment. Any Permitted Investment shall be sold or disposed of
in accordance
with Financial Accounting Standard 140, paragraph 35c(6) in effect
as of the
Closing Date.
Permitted Transferee:
Any person other than
(i) the United States, any State or political subdivision thereof,
or
any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any
agency or
instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives
described
in section 521 of the Code) that is exempt from tax imposed by
Chapter 1 of the
Code (including the tax imposed by section 511 of the Code on
unrelated business
taxable income) on any excess inclusions (as defined in section
860E(c)(1) of
the Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in
section
1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775 of
the
Code,
(vi) a Person that is
not a U.S. Person, and
(vii) any other Person so designated by the Depositor based on
an
Opinion of Counsel that the Transfer of an Ownership Interest in a
Residual
Certificate to the Person may cause any REMIC created hereunder to
fail to
qualify as a REMIC at any time that the Certificates are
outstanding.
Person: Any individual, corporation, partnership, joint
venture,
association, limited liability company, joint-stock company,
trust,
unincorporated organization, or government, or any agency or
political
subdivision thereof.
Physical Certificates:
As specified in the Preliminary Statement.
Planned Balance: With respect to any Planned Principal Classes and
any
Distribution Date appearing in the Principal Balance Schedule, the
applicable
amount appearing opposite such Distribution Date for such Planned
Principal
Classes..
Planned Principal Classes: As specified in the Preliminary
Statement.
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<PAGE>
PO Formula Principal Amount: As to any Distribution Date and the
Class
PO Certificates, the sum of (i) the sum of the applicable PO
Percentage of (a)
the related Allocation Percentage of the principal portion of each
Scheduled
Payment (without giving effect, prior to the Bankruptcy Coverage
Termination
Date, to any reductions thereof caused by any Debt Service
Reductions or
Deficient Valuations) due on each Mortgage Loan on the related Due
Date, (b) the
related Allocation Percentage of the Stated Principal Balance of
each Mortgage
Loan that was repurchased by the Seller or purchased by the
Servicer pursuant to
this Agreement as of such Distribution Date, excluding any Mortgage
Loan that
was repurchased due to a modification of the Mortgage Rate, (c) the
related
Allocation Percentage of the Substitution Adjustment Amount in
connection with
any Deleted Mortgage Loan received with respect to such
Distribution Date, (d)
the related Allocation Percentage of any Insurance Proceeds or
Liquidation
Proceeds allocable to recoveries of principal of Mortgage Loans
that are not yet
Liquidated Mortgage Loans received during the calendar month
preceding the month
of such Distribution Date, (e) the related Allocation Percentage of
with respect
to each Mortgage Loan that became a Liquidated Mortgage Loan during
the month
preceding the calendar month of such Distribution Date, the amount
of
Liquidation Proceeds allocable to principal received with respect
to such
Mortgage Loan during the month preceding the month of such
Distribution Date,
and (f) the related Allocation Percentage of all Principal
Prepayments with
respect to the Mortgage Loans received during the related
Prepayment Period, and
(ii) with respect to Subsequent Recoveries attributable to a
Discount Mortgage
Loan that incurred (1) an Excess Loss or (2) a Realized Loss after
the Senior
Credit Support Depletion Date, the related Allocation Percentage of
the PO
Percentage of any Subsequent Recoveries received during the
calendar month
preceding the month of such Distribution Date.
PO Percentage: As to any Discount Mortgage Loan, a fraction
(expressed
as a percentage) the numerator of which is the excess of the
Required Coupon
over the Adjusted Net Mortgage Rate of such Discount Mortgage Loan
and the
denominator of which is such Required Coupon. As to any
Non-Discount Mortgage
Loan, 0%.
Pool Stated Principal Balance: The aggregate Stated Principal
Balance
of the Mortgage Loans.
Prepayment Charge: As to a Mortgage Loan, any charge payable by
a
Mortgagor in connection with certain partial prepayments and all
prepayments in
full made within the related Prepayment Charge Period, the
Prepayment Charges
with respect to each applicable Mortgage Loan so held by the Trust
Fund being
identified in the Mortgage Loan Schedule.
Prepayment Charge Period: As to any Mortgage Loan, the period of
time
during which a Prepayment Charge may be imposed.
Prepayment Interest Excess: As to any Principal Prepayment received
by
the Servicer on a Mortgage Loan from the first day through the
fifteenth day of
any calendar month other than the month of the Cut-off Date, all
amounts paid by
the related Mortgagor in respect of interest on such Principal
Prepayment. All
Prepayment Interest Excess shall be retained by the Servicer as
additional
servicing compensation.
Prepayment Interest Shortfall: As to any Distribution Date,
Mortgage
Loan and Principal Prepayment received on or after the sixteenth
day of the
month preceding the month of such Distribution Date (or, in the
case of the
first Distribution Date, on or after the Cut-off Date) and on or
before the last
day of the month preceding the month of such Distribution Date, the
amount, if
any, by which one month's interest at the related Mortgage Rate,
net of the
Servicing Fee Rate, on such Principal Prepayment exceeds the amount
of interest
paid in connection with such Principal Prepayment.
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<PAGE>
Prepayment Period: As to any Distribution Date and related Due
Date,
the period from and including the 16th day of the month immediately
prior to the
month of such Distribution Date (or, in the case of the first
Distribution Date,
from the Cut-off Date) and to and including the 15th day of the
month of such
Distribution Date.
Primary Insurance Policy: Each policy of primary mortgage
guaranty
insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal Balance Schedule: Not applicable.
Principal Only Certificates: As specified in the
Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on
a
Mortgage Loan (including the principal portion of the Purchase
Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received
in advance of
its scheduled Due Date and is not accompanied by an amount
representing
scheduled interest due on any date in any month after the month of
prepayment.
The Servicer shall apply partial Principal Prepayments in
accordance with the
related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by
a
Mortgagor of the entire principal balance of a Mortgage Loan.
Private Certificates:
As specified in the Preliminary Statement.
Pro Rata Share: As to any Distribution Date and any Class of
Subordinated Certificates, the portion of the Subordinated
Principal
Distribution Amount allocable to such Class, equal to the product
of the
Subordinated Principal Distribution Amount on such Distribution
Date and a
fraction, the numerator of which is the related Class Certificate
Balance
thereof and the denominator of which is the aggregate Class
Certificate Balance
of the Subordinated Certificates, in each case immediately prior to
such
Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or
occupancy
agreement between a Cooperative Corporation and a holder of related
Co-op
Shares.
Prospectus Supplement: The Prospectus Supplement dated November
28,
2006, relating to the Offered Certificates, and any supplement
thereto.
PUD: Planned Unit
Development.
Purchase Price: For any Mortgage Loan required to be purchased by
the
Seller pursuant to Section 2.02 or 2.03 or purchased by the
Servicer pursuant to
Section 3.12, the sum of
(i) 100% of the unpaid principal balance of the Mortgage Loan on
the
date of the purchase,
(ii) accrued and unpaid interest on the Mortgage Loan at the
applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x)
the purchaser
is the Servicer or (y) if the purchaser is the Seller and the
Seller is the
Servicer) from the date through which interest was last paid by the
Mortgagor to
the Due Date in the month in which the Purchase Price is to be
distributed to
Certificateholders, net of any unreimbursed Advances made by the
Servicer on the
Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in
connection
with any violation by the Mortgage Loan of any predatory or abusive
lending law.
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<PAGE>
If the Mortgage Loan is purchased pursuant to Section 3.12, the
interest component of the Purchase Price shall be computed (i) on
the basis of
the applicable Adjusted Mortgage Rate before giving effect to the
related
modification and (ii) from the date to which interest was last paid
to the date
on which the Mortgage Loan is assigned to the Servicer pursuant to
Section 3.12.
Qualified Insurer: A mortgage guaranty insurance company duly
qualified
as such under the laws of the state of its principal place of
business and each
state having jurisdiction over the insurer in connection with the
insurance
policy issued by the insurer, duly authorized and licensed in such
states to
transact a mortgage guaranty insurance business in such states and
to write the
insurance provided by the insurance policy issued by it, approved
as a FNMA- or
FHLMC-approved mortgage insurer or having a claims paying ability
rating of at
least "AA" or equivalent rating by a nationally recognized
statistical rating
organization. Any replacement insurer with respect to a Mortgage
Loan must have
at least as high a claims paying ability rating as the insurer it
replaces had
on the Closing Date.
Rating Agency: Each of the Rating Agencies specified in the
Preliminary
Statement. If any of them or a successor is no longer in existence,
"Rating
Agency" shall be the nationally recognized statistical rating
organization, or
other comparable Person, designated by the Depositor and named in
the
Underwriters' Exemption, notice of which designation shall be given
to the
Trustee. References to a given rating or rating category of a
Rating Agency
means the rating category without giving effect to any
modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount
(not less than zero or more than the Stated Principal Balance of
the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated
Principal
Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date
as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Adjusted Net Mortgage Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that
has become the
subject of a Deficient Valuation, if the principal amount due under
the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become the
subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Scheduled Payment has been
reduced.
To the extent the Servicer receives Subsequent Recoveries with
respect
to any Mortgage Loan, the amount of the Realized Loss with respect
to that
Mortgage Loan will be reduced by such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement
between
the Cooperative Corporation and the originator of the Mortgage Loan
that
establishes the rights of the originator in the Cooperative
Property.
Record Date: With respect to any Distribution Date and any
Definitive
Certificate and the Delay Certificates, the close of business on
the last
Business Day of the month preceding the month of that Distribution
Date. With
respect to any Distribution Date and the Non-Delay Certificates as
long as they
are Book-Entry Certificates, the Business Day immediately prior to
such
Distribution Date.
Reference Bank: As
defined in Section 4.09.
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<PAGE>
Refinance Loan: Any Mortgage Loan the proceeds of which are used
to
refinance an Original Mortgage Loan.
Regular Certificates:
As specified in the Preliminary Statement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to
time, and subject to such clarification and interpretation as have
been provided
by the Commission in the adopting release (Asset-Backed Securities,
Securities
Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the
staff of the Commission, or as may be provided by the Commission or
its staff
from time to time.
Relief Act: The
Servicemembers Civil Relief Act.
Relief Act Reductions: With respect to any Distribution Date and
any
Mortgage Loan as to which there has been a reduction in the amount
of interest
collectible thereon for the most recently ended calendar month as a
result of
the application of the Relief Act or any similar state or local
laws, the
amount, if any, by which (i) interest collectible on such Mortgage
Loan for the
most recently ended calendar month is less than (ii) interest
accrued thereon
for such month pursuant to the Mortgage Note.
REMIC: A "real estate mortgage investment conduit" within the
meaning
of section 860D of the Code.
REMIC
Provisions: Provisions of the federal income tax law relating
to
real estate mortgage investment conduits, which appear at sections
860A through
860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and
regulations promulgated thereunder, as the foregoing may be in
effect from time
to time as well as provisions of applicable state laws.
REO Property: A Mortgaged Property acquired by the Trust Fund
through
foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted
Mortgage Loan.
Reportable Event: Any event required to be reported on Form 8-K,
and in
any event, the following:
(a) entry into a definitive agreement related to the Trust Fund,
the
Certificates or the Mortgage Loans, or an amendment to a
Transaction Document,
even if the Depositor is not a party to such agreement (e.g., a
servicing
agreement with a servicer contemplated by Item 1108(a)(3) of
Regulation AB);
(b) termination of a Transaction Document (other than by expiration
of
the agreement on its stated termination date or as a result of all
parties
completing their obligations under such agreement), even if the
Depositor is not
a party to such agreement (e.g., a servicing agreement with a
servicer
contemplated by Item 1108(a)(3) of Regulation AB);
(c) with respect to the Servicer only, if the Servicer becomes
aware of
any bankruptcy or receivership with respect to the Seller, the
Depositor, the
Servicer, the Trustee, the Supplemental Interest Trustee, the Cap
Counterparty,
any enhancement or support provider contemplated by Items 1114(b)
or 1115 of
Regulation AB, or any other material party contemplated by Item
1101(d)(1) of
Regulation AB;
(d) with respect to the Trustee, the Servicer and the Depositor
only,
the occurrence of an early amortization, performance trigger or
other event,
including an Event of Default under this Agreement;
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<PAGE>
(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 Coupon: 6.25%
per annum.
Required Insurance Policy: For any Mortgage Loan, any insurance
policy
that is required to be maintained from time to time under this
Agreement.
Residual Certificates:
As specified in the Preliminary Statement.
Responsible Officer: When used with respect to the Trustee, any
Managing Director, any Director, Vice President, any Assistant Vice
President,
any Associate, any Assistant Secretary, any Trust Officer, or any
other officer
of the Trustee customarily performing functions similar to those
performed by
any of the above designated officers who at such time shall be
officers to whom,
with respect to a particular matter, the matter is referred because
of the
officer's knowledge of and familiarity with the particular subject
and who has
direct responsibility for the administration of this Agreement.
Restricted Classes: As
defined in Section 4.02(e).
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, Inc.
If S&P is designated as a Rating Agency in the Preliminary
Statement, for
purposes of Section 10.05(b) the address for notices to S&P
shall be Standard &
Poor's, a division of The McGraw-Hill Companies, Inc., 55 Water
Street, New
York, New York 10041, Attention: Mortgage Surveillance Monitoring,
or any other
address that S&P furnishes to the Depositor and the
Servicer.
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<PAGE>
Scheduled Balance: Not
applicable.
Scheduled Classes: As
specified in the Preliminary Statement.
Scheduled Payment: The scheduled monthly payment on a Mortgage Loan
due
on any Due Date allocable to principal and/or interest on such
Mortgage Loan
which, unless otherwise specified herein, shall give effect to any
related Debt
Service Reduction and any Deficient Valuation that affects the
amount of the
monthly payment due on such Mortgage Loan.
Securities Act: The
Securities Act of 1933, as amended.
Security Agreement: For any Cooperative Loan, the agreement between
the
owner of the related Co-op Shares and the originator of the related
Mortgage
Note that defines the security interest in the Co-op Shares and the
related
Proprietary Lease.
Seller: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage
Loans to the
Depositor.
Senior Certificate Group: As specified in the Preliminary
Statement.
Senior Certificates:
As specified in the Preliminary Statement.
Senior Credit Support Depletion Date: The date on which the
Class
Certificate Balance of each Class of Subordinated Certificates has
been reduced
to zero.
Senior Percentage: As to any Distribution Date and Group, the
percentage equivalent of a fraction the numerator of which is the
aggregate
Class Certificate Balance of the Senior Certificates in the related
Group (other
than the related PO Component and the Notional Amount Certificates)
immediately
before the Distribution Date and the denominator of which is (i)
the aggregate
Class Certificate Balance of the Certificates (other than the
related PO
Component) and (ii) the related Subordinated Portion Balance (other
than the
Class PO Certificates and the Notional Amount Certificates)
immediately before
the Distribution Date.
Senior Prepayment Percentage: As to any Distribution Date and
Group
during the five years beginning on the first Distribution Date,
100%. The Senior
Prepayment Percentage for any Distribution Date occurring on or
after the fifth
anniversary of the first Distribution Date will, except as provided
in this
Agreement, be as follows: for any Distribution Date in the first
year
thereafter, the Senior Percentage plus 70% of the Subordinated
Percentage for
such Distribution Date; for any Distribution Date in the second
year thereafter,
the Senior Percentage plus 60% of the Subordinated Percentage for
such
Distribution Date; for any Distribution Date in the third year
thereafter, the
Senior Percentage plus 40% of the Subordinated Percentage for such
Distribution
Date; for any Distribution Date in the fourth year thereafter, the
Senior
Percentage plus 20% of the Subordinated Percentage for such
Distribution Date;
and for any Distribution Date thereafter, the Senior Percentage for
such
Distribution Date (unless on any Distribution Date the Senior
Percentage exceeds
the initial Senior Percentage, in which case the Senior Prepayment
Percentage
for such Distribution Date will once again equal 100%).
Notwithstanding the
foregoing, no decrease in the Senior Prepayment Percentage will
occur unless
both Senior Step Down Conditions are satisfied.
Senior Principal Distribution Amount: As to any Distribution Date
and
Group, the sum of (i) the related Senior Percentage of the Non-PO
Percentage of
all amounts described in subclauses (a) through (d) of clause (i)
of the
definition of Non-PO Formula Principal Amount for that Group for
such
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<PAGE>
Distribution Date, (ii) for each Mortgage Loan that became a
Liquidated Mortgage
Loan during the calendar month preceding the month of the
Distribution Date, the
less of (x) the related Allocation Percentage of the Senior
Percentage of the
applicable Non-PO Percentage of the Stated Principal Balance of the
Mortgage
Loan, and (y) either (a) if no Excess Losses were sustained on a
Liquidated
Mortgage Loan during the preceding calendar month, the related
Allocation
Percentage of the applicable Non-PO Percentage of the amount of the
liquidation
proceeds allocable to principal received on the Mortgage Loan or
(b) if an
Excess Loss were sustained on the Liquidated Mortgage Loan during
the preceding
calendar month, the related Allocation Percentage of the Senior
Percentage of
the applicable Non-PO Percentage of the amount of the liquidation
proceeds
allocable to principal received on the Mortgage Loan, and (iii) the
Senior
Prepayment Percentage of the applicable Non-PO Percentage of the
amounts
described in subclause (f) of clause (i) of the definition of
Non-PO Formula
Principal Amount for that Group for such Distribution Date, and
(iv) the Senior
Prepayment Percentage of any Subsequent Recoveries described in
clause (ii) of
the definition of Non-PO Formula Principal Amount for that Group
for such
Distribution Date; provided, however, that if a Bankruptcy Loss
that is an
Excess Loss is sustained with respect to a Mortgage Loan that is
not a
Liquidated Mortgage Loan, the Senior Principal Distribution Amount
will be
reduced on the related Distribution Date by the related Allocation
Percentage of
the Senior Percentage of the applicable Non-PO Percentage of the
principal
portion of such Bankruptcy Loss.
Senior Step Down
Conditions: As to any Distribution Date: (i) the
aggregate Stated Principal Balance of all Mortgage Loans 60 days or
more
Delinquent (averaged over the preceding six month period)
(including any
Mortgage Loans subject to foreclosure proceedings, REO Property
(regardless of
whether that Mortgage Loan is 60 days or more Delinquent) and
Mortgage Loans the
mortgagors of which are in bankruptcy), as a percentage of the
aggregate Class
Certificate Balance of the Subordinated Certificates, does not
equal or exceed
50%, and (ii) cumulative Realized Losses do not exceed: (a)
commencing with the
Distribution Date on the fifth anniversary of the first
Distribution Date, 30%
of the Original Subordinated Principal Balance, (b) commencing with
the
Distribution Date on the sixth anniversary of the first
Distribution Date, 35%
of the Original Subordinated Principal Balance, (c) commencing with
the
Distribution Date on the seventh anniversary of the first
Distribution Date, 40%
of the Original Subordinated Principal Balance, (d) commencing with
the
Distribution Date on the eighth anniversary of the first
Distribution Date, 45%
of the Original Subordinated Principal Balance, and (e) commencing
with the
Distribution Date on the ninth anniversary of the first
Distribution Date, 50%
of the Original Subordinated Principal Balance
Senior Termination Date: Not applicable.
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as Servicer under this
Agreement.
Servicer Advance Date: As to any Distribution Date, 12:30 P.M.
Pacific
time on the Business Day preceding the Distribution Date.
Servicing Advances: All customary, reasonable, and necessary "out
of
pocket" costs and expenses incurred in the performance by the
Servicer of its
servicing obligations, including the cost of
(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,
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<PAGE>
(d) compliance with the obligations under Section 3.10; and
(e) reasonable compensation to the Servicer or its affiliates
for acting as broker in connection with the sale of foreclosed
Mortgaged Properties and for performing certain default management
and
other similar services (including appraisal services) in
connection
with the servicing of defaulted Mortgage Loans. For purposes of
this
clause (e), only costs and expenses incurred in connection with
the
performance of activities generally considered to be outside the
scope
of customary servicing duties shall be treated as Servicing
Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d)
of Regulation AB.
Servicing Fee: As to each Mortgage Loan and any Distribution Date,
one
month's interest at the applicable Servicing Fee Rate on the Stated
Principal
Balance of the Mortgage Loan, or, whenever a payment of interest
accompanies a
Principal Prepayment in Full made by the Mortgagor, interest at the
Servicing
Fee Rate on the Stated Principal Balance of the Mortgage Loan for
the period
covered by the payment of interest, subject to reduction as
provided in Section
3.15.
Servicing Fee Rate: For each Mortgage Loan, the per annum rate
specified on the Mortgage Loan Schedule.
Servicing Officer: Any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Mortgage
Loans whose
name and facsimile signature appear on a list of servicing officers
furnished to
the Trustee by the Servicer on the Closing Date pursuant to this
Agreement, as
the list may from time to time be amended.
Servicing Standard: That degree of skill and care exercised by
the
Servicer with respect to mortgage loans comparable to the Mortgage
Loans
serviced by the Servicer for itself or others.
Shift Percentage: For any Distribution Date occurring during the
five
years beginning on the first Distribution Date, 0%. Thereafter, the
Shift
Percentage for any Distribution Date occurring on or after the
fifth anniversary
of the first Distribution Date will be as follows: for any
Distribution Date in
the first year thereafter, 30%; for any Distribution Date in the
second year
thereafter, 40%; for any Distribution Date in the third year
thereafter, 60%;
for any Distribution Date in the fourth year thereafter, 80%; and
for any
Distribution Date thereafter, 100%.
Special Hazard Coverage Termination Date: The point in time at
which
the Special Hazard Loss Coverage Amount is reduced to zero.
Special Hazard Loss: Any Realized Loss suffered by a Mortgaged
Property
on account of direct physical loss, but not including (i) any loss
of a type
covered by a hazard insurance policy or a flood insurance policy
required to be
maintained with respect to such Mortgaged Property pursuant to
Section 3.10 to
the extent of the amount of such loss covered thereby, or (ii) any
loss caused
by or resulting from:
(a) normal wear and tear;
(b) fraud, conversion or other dishonest act on the part of
the Trustee, the Servicer or any of their agents or employees
(without
regard to any portion of the loss not covered by any errors and
omissions policy);
(c) errors in design, faulty workmanship or faulty materials,
unless the collapse of the property or a part thereof ensues and
then
only for the ensuing loss;
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(d) nuclear or chemical reaction or nuclear radiation or
radioactive or chemical contamination, all whether controlled
or
uncontrolled, and whether such loss be direct or indirect,
proximate or
remote or be in whole or in part caused by, contributed to or
aggravated by a peril covered by the definition of the term
"Special
Hazard Loss";
(e) hostile or warlike action in time of peace and war,
including action in hindering, combating or defending against
an
actual, impending or expected attack:
1. by any government or sovereign power, de jure or
de facto, or by any authority maintaining or using military,
naval or air forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power,
authority or forces;
(f) any weapon of war employing nuclear fission, fusion or
other radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped
power or action taken by governmental authority in hindering,
combating
or defending against such an occurrence, seizure or destruction
under
quarantine or customs regulations, confiscation by order of any
government or public authority, or risks of contraband or
illegal
transportation or trade.
Special Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $5,894,000. With respect to any Distribution
Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1%
of the
aggregate of the principal balances of the Mortgage Loans, (ii)
twice the
principal balance of the largest Mortgage Loan and (iii) the
aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged
Properties located
in the single California postal zip code area having the highest
aggregate
principal balance of any such zip code area and (b) the Special
Hazard Loss
Coverage Amount as of the Closing Date less the amount, if any, of
Special
Hazard Losses allocated to the Certificates since the Closing Date.
All
principal balances for the purpose of this definition will be
calculated as of
the first day of the calendar month preceding the month of such
Distribution
Date after giving effect to Scheduled Payments on the Mortgage
Loans then due,
whether or not paid.
Special Hazard Mortgage Loan: A Liquidated Mortgage Loan as to
which a
Special Hazard Loss has occurred.
Startup Day: The
Closing Date.
Stated Principal Balance: As to any Mortgage Loan and Due Date,
the
unpaid principal balance of such Mortgage Loan as of such Due Date,
as specified
in the amortization schedule at the time relating thereto (before
any adjustment
to such amortization schedule by reason of any moratorium or
similar waiver or
grace period) after giving effect to the sum of: (i) the payment of
principal
due on such Due Date and irrespective of any delinquency in payment
by the
related Mortgagor and (ii) any Liquidation Proceeds allocable to
principal
received in the prior calendar month and Principal Prepayments
received through
the last day of the Prepayment Period in which the Due Date occurs,
in each case
with respect to such Mortgage Loan.
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
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Regulation AB with respect to the Mortgage Loans under the
direction or
authority of the Servicer or the Trustee, as the case may be.
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordinated Percentage: As to any Distribution Date and each
Subordinated Percentage, 100% minus the Senior Percentage for that
Group for
such Distribution Date.
Subordinated Portion: The Group 1A Subordinated Portion and Group
1B
Subordinated Portion, as applicable.
Subordinated Portion Balance: For any Distribution Date is the
initial
balance of the related Subordinated Portion reduced by all amounts
applied and
losses allocated in reduction of the Subordinated Portion Balance
and increased
by the applicable Allocation Percentage of Subsequent Recoveries on
the Mortgage
Loans.
Subordinated Prepayment Percentage: As to any Distribution Date
and
Group, 100% minus the Senior Prepayment Percentage for such
Distribution Date.
Subordinated Principal Distribution Amount: As to any Distribution
Date
and Group, the sum of the following: (i) the related Allocation
Percentage of
the Subordinated Percentage of the applicable Non-PO Percentage of
all amounts
described in subclauses (a) through (d) of clause (i) of the
definition of
Non-PO Formula Principal Amount with respect to such Distribution
Date, (ii) for
each Mortgage Loan that became a Liquidated Mortgage Loan during
the calendar
month preceding the month of the Distribution Date, the related
Allocation
Percentage of the applicable Non-PO Percentage of the portion of
the Liquidation
Proceeds allocable to principal received on the Mortgage Loan,
after application
of the amounts pursuant to clause (ii) of the definition of Senior
Principal
Distribution Amount, up to the related Allocation Percentage of the
Subordinated
Percentage of the applicable Non-PO Percentage of the Stated
Principal Balance
of the Mortgage Loan, and (iii) the related Allocation Percentage
of the
Subordinated Prepayment Percentage of the applicable Non-PO
Percentage of the
amounts described in subclause (f) of clause (i) and in clause (ii)
of the
definition of Non-PO Formula Principal Amount for that Group with
respect to
such Distribution Date, reduced by the amount of any payments in
respect of
Class PO Deferred Amounts for that Group for such Distribution
Date.
Subsequent Recoveries: As to any Distribution Date, with respect to
a
Liquidated Mortgage Loan that resulted in a Realized Loss in a
prior calendar
month, unexpected amounts received by the Servicer (net of any
related expenses
permitted to be reimbursed pursuant to Section 3.09) specifically
related to
such Liquidated Mortgage Loan.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller
for
a Deleted Mortgage Loan that must, on the date of substitution, as
confirmed in
a Request for Release, substantially in the form of Exhibit M,
(i) have a Stated Principal Balance, after deduction of the
principal
portion of the Scheduled Payment due in the month of substitution,
not in excess
of, and not more than 10% less than, the Stated Principal Balance
of the Deleted
Mortgage Loan (unless the amount of any shortfall is deposited by
the Seller in
the Certificate Account and held for distribution to the
Certificateholders on
the related Distribution Date);
(ii) have a Mortgage Rate no lower than and not more than 1% per
annum
higher than the Deleted Mortgage Loan;
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(iii) have a Loan-to-Value Ratio no higher than that of the
Deleted
Mortgage Loan;
(iv) have a remaining term to maturity no greater than (and not
more
than one year less than) that of the Deleted Mortgage Loan;
(v) not be a Cooperative Loan unless the Deleted Mortgage Loan was
a
Cooperative Loan; and
(vi) comply with each representation and warranty in Section
2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Supplemental Interest Reserve Fund: The separate fund created
and
initially maintained by the Supplemental Interest Trustee pursuant
to Section
3.06 in the name of the Supplemental Interest Trustee for the
benefit of the
Holders of the Class A-10 Certificates and designated "Deutsche
Bank National
Trust Company in trust for registered holders of Residential
Asset
Securitization Trust 2006-A15, Mortgage Pass-Through Certificates,
Series
2006-O, Class A-10." Funds in the Supplemental Interest Reserve
Fund shall be
held in trust for the Holders of the Class A-10 Certificates for
the uses and
purposes set forth in this Agreement. The Supplemental Interest
Reserve Fund
will not be an asset of any REMIC.
Supplemental Interest Trust: The separate trust created under
this
Agreement pursuant to Section 3.06(g).
Supplemental Interest Trustee: Deutsche Bank National Trust
Company,
not in its individual capacity, but solely in its capacity as
trustee of the
Supplemental Interest Trust for the benefit of the Holders of the
Class A-10
Certificates under this Agreement, and any successor thereto, and
any
corporation or national banking association resulting from or
surviving any
consolidation or merger to which it or its successors may be a
party and any
successor trustee as may from time to time be serving as successor
trustee
hereunder.
Suspension Notification: Notification to the Commission of the
suspension of the Trust Fund's obligation to file reports pursuant
to Section
15(d) of the Exchange Act.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Termination Date: The
Distribution Date in July 2009.
Transaction Documents: This Agreement, the Corridor Contract 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.
Transfer Payment Made:
Not applicable.
Transfer Payment Received: Not applicable.
Trust Fund: The corpus
of the trust created under this Agreement
consisting of
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(i) the Mortgage Loans and all interest and principal received on
them
after the Cut-off Date, other than amounts due on the Mortgage
Loans by the
Cut-off Date;
(ii) the Certificate Account, the Distribution Account and all
amounts
deposited therein pursuant to this Agreement (including amounts
received from
the Seller on the Closing Date that will be deposited by the
Trustee in the
Certificate Account pursuant to Section 2.01);
(iii) property that secured a Mortgage Loan and has been acquired
by
foreclosure, deed-in-lieu of foreclosure, or otherwise;
(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 Corridor Contract; and
(vi) all proceeds of the conversion, voluntary or involuntary, of
any
of the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors
and,
if a successor trustee is appointed under this Agreement, the
successor.
Trustee Fee: The fee payable to the Trustee on each Distribution
Date
for its services as Trustee hereunder, in an amount equal to
one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the
Mortgage Loans immediately prior to such Distribution Date.
Trustee Fee Rate:
0.0075% per annum.
The terms "United States," "State," and "International
Organization"
have the meanings in section 7701 of the Code or successor
provisions. A
corporation will not be treated as an instrumentality of the United
States or of
any State or political subdivision thereof for these purposes if
all of its
activities are subject to tax and, with the exception of the
Federal Home Loan
Mortgage Corporation, a majority of its board of directors is not
selected by
such government unit.
UCC: The Uniform
Commercial Code for the State of New York.
Undercollateralized Group: Not applicable.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41,
67
Fed. Reg. 54487 (2002) (or any successor thereto), or any
substantially similar
administrative exemption granted by the U.S. Department of
Labor.
United States Person or U.S. Person:
(i) A citizen or resident of the United States;
(ii) a corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under the
laws of the
United States or of any state thereof, including, for this purpose,
the District
of Columbia;
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<PAGE>
(iii) a partnership (or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of the
United States
or of any state thereof, including, for this purpose, the District
of Columbia
(unless provided otherwise by future Treasury regulations);
(iv) an estate whose income is includible in gross income for
United
States income tax purposes regardless of its source; or
(v) a trust, if a court within the United States is able to
exercise
primary supervision over the administration of the trust and one or
more U.S.
Persons have authority to control all substantial decisions of the
trust.
Notwithstanding the last clause of the preceding sentence, to the
extent
provided in Treasury regulations, certain trusts in existence on
August 20,
1996, and treated as U.S. Persons before that date, may elect to
continue to be
U.S. Persons.
U.S.A. Patriot Act: The Uniting and Strengthening America by
Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001.
Voting Rights: The portion of the voting rights of all of the
Certificates that is allocated to any Certificate. As of any date
of
determination, (a) 1% of all Voting Rights shall be allocated to
each Class of
Notional Amount Certificates (the Voting Rights to be allocated
among the
holders of Certificates of each Class in accordance with their
respective
Percentage Interests), (b) 1% of all Voting Rights shall be
allocated to the
Holder of the Class A-R Certificates and (c) the remaining Voting
Rights shall
be allocated among Holders of the remaining Classes of Offered
Certificates in
proportion to the Certificate Balances of the respective
Certificates on the
date.
Withdrawal Date: The 18th day of each month, or if such day is not
a
Business Day, the next preceding Business Day.
Yield Supplement Amount: For the Class A-10 Certificates and
any
Distribution Date, the product of (i) the excess of (A) the lesser
of (x) LIBOR
(as determined by the Cap Counterparty) and (y) 8.90% over (B)
5.65%, (ii) the
Class Certificate Balance of the Class A-10 Certificates
immediately prior to
that Distribution Date, and (iii) a fraction, the numerator of
which is 30, and
the denominator of is 360.
Section 1.02 Rules of
Construction.
Except as otherwise expressly provided in this Agreement or unless
the
context clearly requires otherwise
(a) References to designated articles, sections, subsections,
exhibits, and other subdivisions of this Agreement, such as
"Section
6.12 (a)," refer to the designated article, section,
subsection,
exhibit, or other subdivision of this Agreement as a whole and to
all
subdivisions of the designated article, section, subsection,
exhibit,
or other subdivision. The words "herein," "hereof," "hereto,"
"hereunder," and other words of similar import refer to this
Agreement
as a whole and not to any particular article, section, exhibit,
or
other subdivision of this Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements, or
any
other changes that may have occurred since the document, statute,
rule,
or regulation came into being, including changes that occur after
the
date
of this Agreement.
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<PAGE>
(c) Any party may execute any of the requirements under this
Agreement either directly or through others, and the right to
cause
something to be done rather than doing it directly shall be
implicit in
every requirement under this Agreement. Unless a provision is
restricted as to time or limited as to frequency, all provisions
under
this Agreement are implicitly available and things may happen from
time
to time.
(d) The term "including" and all its variations mean
"including but not limited to." Except when used in conjunction
with
the word "either," the word "or" is always used inclusively
(for
example, the phrase "A or B" means "A or B or both," not "either A
or B
but not both").
(e) A reference to "a [thing]" or "any [of a thing]" does not
imply the existence or occurrence of the thing referred to even
though
not followed by "if any," and "any [of a thing]" is any of it.
A
reference to the plural of anything as to which there could be
either
one or more than one does not imply the existence of more than one
(for
instance, the phrase "the obligors on a note" means "the obligor
or
obligors on a note"). "Until [something occurs]" does not imply
that it
must occur, and will not be modified by the word "unless." The
word
"due" and the word
"payable" are each used in the sense that the stated
time for payment has passed. The word "accrued" is used in its
accounting sense, i.e., an amount paid is no longer accrued. In
the
calculation of amounts of things, differences and sums may
generally
result in negative numbers, but when the calculation of the excess
of
one thing over another results in zero or a negative number,
the
calculation is disregarded and an "excess" does not exist. Portions
of
things may be expressed as fractions or percentages
interchangeably.
(f) All accounting terms used in an accounting context and not
otherwise defined, and accounting terms partly defined in this
Agreement, to the extent not completely defined, shall be construed
in
accordance with generally accepted accounting principles. To the
extent
that the definitions of accounting terms in this Agreement are
inconsistent with their meanings under generally accepted
accounting
principles, the definitions contained in this Agreement shall
control.
Capitalized terms used in this Agreement without definition that
are
defined in the Uniform Commercial Code are used in this Agreement
as
defined in the Uniform Commercial Code.
(g) In the computation of a period of time from a specified
date to a later specified date or an open-ended period, the
words
"from" and "beginning" mean "from and including," the word
"after"
means "from but excluding," the words "to" and "until" mean "to
but
excluding," and the word "through" means "to and including."
Likewise,
in setting deadlines or other periods, "by" means "by." The
words
"preceding," "following," and words of similar import, mean
immediately
preceding or following. References to a month or a year refer
to
calendar months and calendar years.
(h) Any reference to the enforceability of any agreement
against a party means that it is enforceable, subject as to
enforcement
against the party, to applicable bankruptcy, insolvency,
reorganization, and other similar laws of general applicability
relating to or affecting creditors' rights and to general
equity
principles.
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<PAGE>
ARTICLE TWO
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Seller, concurrently with the execution and delivery of
this
Agreement, hereby transfers to the Depositor, without recourse, all
the interest
of the Seller in each Mortgage Loan, including all interest and
principal
received or receivable by the Seller on each Mortgage Loan after
the Cut-off
Date and all interest and principal payments on each Mortgage Loan
received
before the Cut-off Date for installments of interest and principal
due after the
Cut-off Date but not including payments of principal and interest
due by the
Cut-off Date. By the Closing Date, the Seller shall deliver to the
Depositor or,
at the Depositor's direction, to the Trustee or other designee of
the Depositor,
the Mortgage File for each Mortgage Loan listed in the Mortgage
Loan Schedule
(except that, in the case of Mortgage Loans that are Delay Delivery
Mortgage
Loans, such delivery may take place within five Business Days of
the Closing
Date) as of the Closing Date. The delivery of the Mortgage Files
shall be made
against payment by the Depositor of the purchase price, previously
agreed to by
the Seller and Depositor, for the Mortgage Loans. With respect to
any Mortgage
Loan that does not have a first payment date on or before the Due
Date in the
month of the first Distribution Date, the Seller shall deposit into
the
Distribution Account on the first Distribution Account Deposit Date
an amount
equal to one month's interest at the related Adjusted Mortgage Rate
on the
Cut-off Date Principal Balance of such Mortgage Loan. Also on the
Closing Date
the Depositor shall deposit $100 into the Certificate Account.
(b) The Depositor, concurrently with the execution and delivery of
this
Agreement, hereby transfers to the Trustee for the benefit of
the
Certificateholders, without recourse, all the interest of the
Depositor in the
Trust Fund, together with the Depositor's right to require the
Seller to cure
any breach of a representation or warranty made in this Agreement
by the Seller
or to repurchase or substitute for any affected Mortgage Loan in
accordance with
this Agreement. The Depositor hereby directs the Trustee to execute
the Corridor
Contract.
(c) In connection with the transfer and assignment of each
Mortgage
Loan, the Depositor has delivered (or, in the case of the Delay
Delivery
Mortgage Loans, will deliver to the Trustee within the time periods
specified in
the definition of Delay Delivery Mortgage Loans), for the benefit
of the
Certificateholders the following documents or instruments with
respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or
facsimile signature in blank in the following form: "Pay to the
order
of _______________ ______________without recourse," with all
intervening endorsements showing a complete chain of endorsement
from
the originator to the Person endorsing the Mortgage Note (each
endorsement being sufficient to transfer all interest of the party
so
endorsing, as noteholder or assignee thereof, in that Mortgage
Note) or
a lost note affidavit for any Lost Mortgage Note from the
Seller
stating that the original Mortgage Note was lost or destroyed,
together
with a copy of the Mortgage Note;
(ii) Except as provided below and for each Mortgage Loan that
is not a MERS Mortgage Loan, the original recorded Mortgage or a
copy
of such Mortgage certified by the Seller as being a true and
complete
copy of the Mortgage (or, in the case of a Mortgage for which
the
related Mortgaged Property is located in the Commonwealth of
Puerto
Rico, a true copy of the Mortgage certified as such by the
applicable
notary) and in the case of each MERS Mortgage Loan, the
original
Mortgage, noting the presence of the MIN of the Mortgage Loan
and
either language indicating that the Mortgage Loan is a MOM Loan if
the
Mortgage Loan is a MOM
41
<PAGE>
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;
(v) Except as provided below, the original or duplicate
original lender's title policy and all its riders;
(vi) The originals of the following documents for each
Cooperative Loan:
(A) the Co-op
Shares, together with a stock
power in blank;
(B) the
executed Security Agreement;
(C) the
executed Proprietary Lease;
(D) the
executed Recognition Agreement;
(E) the
executed UCC-1 financing statement that
has been filed in all places required to
perfect the Seller's interest in the Co-op
Shares and the Proprietary Lease with
evidence of recording on it; and
(F) executed
UCC-3 financing statements or other
appropriate UCC
financing statements
required by state law, evidencing a complete
and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon
(or in a form suitable for recordation). If
in connection with any Mortgage Loan the
Depositor cannot deliver
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with
all its
riders).
In addition, in connection with the assignment of any MERS
Mortgage
Loan, the Seller agrees that it will cause, at the Seller's
expense, the MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to
the Depositor
have been assigned by the Seller to the Trustee in accordance with
this
Agreement for the benefit of the Certificateholders by including
(or deleting,
in the case of Mortgage
42
<PAGE>
Loans that are repurchased in accordance with this Agreement) in
such computer
files the information required by the MERS(R) System to identify
the series of
the Certificates issued in connection with such Mortgage Loans. The
Seller
further agrees that it will not, and will not permit the Servicer
to, and the
Servicer agrees that it will not, alter the information referenced
in this
paragraph with respect to any Mortgage Loan sold by the Seller to
the Depositor
during the term of this Agreement unless and until such Mortgage
Loan is
repurchased in accordance with the terms of this Agreement.
In the event that in connection with any Mortgage Loan that is not
a
MERS Mortgage Loan the Depositor cannot deliver (a) the original
recorded
Mortgage, (b) all interim recorded assignments or (c) the lender's
title policy
(together with all riders thereto) satisfying the requirements of
clause (ii),
(iii) or (v) above, respectively, concurrently with the execution
and delivery
of this Agreement because such document or documents have not been
returned from
the applicable public recording office in the case of clause (ii)
or (iii)
above, or because the title policy has not been delivered to either
the Servicer
or the Depositor by the applicable title insurer in the case of
clause (v)
above, then the Depositor shall promptly deliver to the Trustee, in
the case of
clause (ii) or (iii) above, the original Mortgage or the interim
assignment, as
the case may be, with evidence of recording indicated on when it is
received
from the public recording office, or a copy of it, certified, if
appropriate, by
the relevant recording office and in the case of clause (v) above,
the original
or a copy of a written commitment or interim binder or preliminary
report of
title issued by the title insurance or escrow company, with the
original or
duplicate copy thereof to be delivered to the Trustee upon receipt
thereof. The
delivery of the original Mortgage Loan and each interim assignment
or a copy of
them, certified, if appropriate, by the relevant recording office,
shall not be
made later than one year following the Closing Date, or, in the
case of clause
(v) above, later than 120 days following the Closing Date. If the
Depositor is
unable to deliver each Mortgage by that date and each interim
assignment because
any documents have not been returned by the appropriate recording
office, or, in
the case of each interim assignment, because the related Mortgage
has not been
returned by the appropriate recording office, the Depositor shall
deliver the
documents to the Trustee as promptly as possible upon their receipt
and, in any
event, within 720 days following the Closing Date.
The Depositor shall forward to the Trustee (a) from time to
time
additional original documents evidencing an assumption or
modification of a
Mortgage Loan and (b) any other documents required to be delivered
by the
Depositor or the Servicer to the Trustee. If the original Mortgage
is not
delivered and in connection with the payment in full of the related
Mortgage
Loan the public recording office requires the presentation of a
"lost
instruments affidavit and indemnity" or any equivalent document,
because only a
copy of the Mortgage can be delivered with the instrument of
satisfaction or
reconveyance, the Servicer shall execute and deliver the required
document to
the public recording office. If a public recording office retains
the original
recorded Mortgage or if a Mortgage is lost after recordation in a
public
recording office, the Seller shall deliver to the Trustee a copy of
the Mortgage
certified by the public recording office to be a true and complete
copy of the
original recorded Mortgage.
As promptly as practicable after any transfer of a Mortgage Loan
under
this Agreement, and in any event within thirty days after the
transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of
Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the
appropriate
public office for real property records the assignments of the
Mortgages to the
Trustee, except that, if the Trustee has not received the
information required
to deliver any assignment of a Mortgage for recording, the Trustee
shall deliver
it as soon as practicable after receipt of the needed information
and in any
event within thirty days.
The Trustee need not record any assignment that relates to a
Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which
are located
in California or (b) in any other jurisdiction (including Puerto
Rico) under the
laws of which, as evidenced by an Opinion of Counsel delivered by
the Seller (at
the Seller's expense) to the Trustee, recording the assignment is
not necessary
to protect the
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Trustee's and the Certificateholders' interest in the related
Mortgage Loan. The
Seller shall deliver such Opinion of Counsel within 90 days of the
Closing Date.
If any Mortgage Loans have been prepaid in full as of the Closing
Date,
the Depositor, in lieu of delivering the above documents to the
Trustee, will
deposit in the Certificate Account the portion of the prepayment
that is
required to be deposited in the Certificate Account pursuant to
Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required
pursuant to this Section 2.01 for each Delay Delivery Mortgage
Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section 2.03 (treating each such Delay Delivery Mortgage Loan
as a Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage
File for any
Delay Delivery Mortgage Loan within the period specified herein,
the Seller
shall use its best reasonable efforts to effect a substitution,
rather than a
repurchase of, such Deleted Mortgage Loan and provided further that
the cure
period provided for in Section 2.02 or in Section 2.03 shall not
apply to the
initial delivery of the Mortgage File for such Delay Delivery
Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such
failure to
deliver. At the end of such period, the Trustee shall send a Delay
Delivery
Certification for the Delay Delivery Mortgage Loans delivered
during such period
in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans
to
the Depositor as a sale for all tax, accounting, and regulatory
purposes.
(e) The Depositor and the Trustee hereto agree and understand that
it
is not intended that any Mortgage Loan be included in the Trust
Fund that is (i)
a "High-Cost Home Loan" as defined in the New Jersey Ownership Act
effective
November 27, 2003, (ii) a "High-Cost Home Loan" as defined in the
New Mexico
Home Loan Protection Act effective January 1, 2004, (iii) a
"High-Cost Home
Loan" as defined in the Massachusetts Predatory Home Loan Practices
Act or (iv)
a "High-Cost Home Loan" as defined by the Indiana High Cost Home
Loan Law
effective January 1, 2005.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The Trustee acknowledges receipt of the documents identified in
the
Initial Certification in the form of Exhibit G-1, and declares that
it holds and
will hold such documents and the other documents delivered to it
constituting
the Mortgage Files for the Mortgage Loans, and that it holds or
will hold such
other assets as are included in the Trust Fund, in trust for the
exclusive use
and benefit of all present and future Certificateholders.
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
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form of Exhibit G-1. Based on its review and examination, and only
as to the
documents identified in such Initial Certification, the Trustee
acknowledges
that such documents appear regular on their face and relate to such
Mortgage
Loans. The Trustee shall be under no duty or obligation to inspect,
review or
examine said documents, instruments, certificates or other papers
to determine
that the same are genuine, enforceable or appropriate for the
represented
purpose or that they have actually been recorded in the real estate
records or
that they are other than what they purport to be on their face.
By the thirtieth day after the Closing Date (or if that day is not
a
Business Day, the succeeding Business Day), the Trustee shall
deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery
Certification with
respect to the Mortgage Loans substantially in the form of Exhibit
G-2, with any
applicable exceptions noted thereon.
By the ninetieth day after the Closing Date (or if that day is not
a
Business Day, the succeeding Business Day), the Trustee shall
deliver to the
Depositor, the Servicer and the Seller a Final Certification with
respect to the
Mortgage Loans in the form of Exhibit H, with any applicable
exceptions noted
thereon.
If, in the course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the
requirements of
Section 2.01, the Trustee shall list such as an exception in the
Final
Certification. The Trustee shall not make any determination as to
whether (i)
any endorsement is sufficient to transfer all interest of the party
so
endorsing, as noteholder or assignee thereof, in that Mortgage Note
or (ii) any
assignment is in recordable form or is sufficient to effect the
assignment of
and transfer to the assignee thereof under the mortgage to which
the assignment
relates. The Seller shall promptly correct any defect that
materially and
adversely affects the interests of the Certificateholders within 90
days from
the date it was so notified of the defect and, if the Seller does
not correct
the defect within that period, the Seller shall either (a)
substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be
accomplished in the pursuant Section 2.03, or (b) purchase the
Mortgage Loan at
its Purchase Price from the Trustee within 90 days from the date
the Seller was
notified of the defect in writing.
If a substitution or purchase of a Mortgage Loan pursuant to
this
provision is required because of a delay in delivery of any
documents by the
appropriate recording office, or there is a dispute between either
the Servicer
or the Seller and the Trustee over the location or status of the
recorded
document, then the substitution or purchase shall occur within 720
days from the
Closing Date. In no other case may a substitution or purchase occur
more than
540 days from the Closing Date.
The Trustee shall deliver written notice to each Rating Agency
within
270 days from the Closing Date indicating each Mortgage Loan (a)
that has not
been returned by the appropriate recording office or (b) as to
which there is a
dispute as to location or status of the Mortgage Loan. The notice
shall be
delivered every 90 days thereafter until the related Mortgage Loan
is returned
to the Trustee. Any substitution pursuant to (a) above or purchase
pursuant to
(b) above shall not be effected before the delivery to the Trustee
of the
Opinion of Counsel required by Section 2.05, and any substitution
pursuant to
(a) above shall not be effected before the additional delivery to
the Trustee of
a Request for Release substantially in the form of Exhibit N. No
substitution is
permitted to be made in any calendar month after the Determination
Date for the
month.
The Purchase Price for any Mortgage Loan shall be deposited by
the
Seller in the Certificate Account by the Distribution Account
Deposit Date for
the Distribution Date in the month following the month of
repurchase and, upon
receipt of the deposit and certification with respect thereto in
the form of
Exhibit N, the Trustee shall release the related Mortgage File to
the Seller and
shall execute and deliver at the Seller's request any instruments
of transfer or
assignment prepared by the Seller, in each case without
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recourse, necessary to vest in the Seller, or a designee, the
Trustee's interest
in any Mortgage Loan released pursuant hereto.
If pursuant to the foregoing provisions the Seller repurchases
a
Mortgage Loan that is a MERS Mortgage Loan, the Servicer shall
either (i) cause
MERS to execute and deliver an assignment of the Mortgage in
recordable form to
transfer the Mortgage from MERS to the Seller and shall cause such
Mortgage to
be removed from registration on the MERS(R) System in accordance
with MERS'
rules and 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.
Section 2.03 Representations, Warranties, and Covenants of the
Seller
and the Servicer.
(a) IndyMac, in its capacities as Seller and Servicer, makes
the
representations and warranties in Schedule II, and by this
reference
incorporated in this Agreement, to the Depositor and the Trustee,
as of the
Closing Date.
(b) The Seller, in its capacity as Seller, makes the
representations
and warranties in Schedule III, and by this reference incorporated
in this
Agreement, to the Depositor and the Trustee, as of the Closing
Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of
a
representation or warranty made pursuant to Section 2.03(b) that
materially and
adversely affects the interests of the Certificateholders in any
Mortgage Loan,
the party discovering such breach shall give prompt notice thereof
to the other
parties. Any breach of representations and warranties under clauses
(28), (32)
and (37) of Schedule III shall be deemed to affect materially and
adversely the
interests of the Certificateholders in the affected Mortgage Loans.
The Seller
covenants that within 90 days of the earlier of its discovery or
its receipt of
written notice from any party of a breach of any representation or
warranty made
pursuant to Section 2.03(b) which materially and adversely affects
the interests
of the Certificateholders in any Mortgage Loan, it shall cure such
breach in all
material respects, and if such breach is not so cured, shall, (i)
if the 90-day
period expires before the second anniversary of the Closing Date,
remove the
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in
its place a Substitute Mortgage Loan, in accordance with this
Section 2.03; or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans from
the Trustee at
the Purchase Price in the manner set forth below. Any substitution
pursuant to
(i) above shall not be effected before the delivery to the Trustee
of the
Opinion of Counsel required by Section 2.05 and a Request for
Release
substantially in the form of Exhibit N, and the Mortgage File for
any Substitute
Mortgage Loan. The Seller shall promptly reimburse the Servicer and
the Trustee
for any expenses reasonably incurred by the Servicer or the Trustee
in respect
of enforcing the remedies for the breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller
shall
deliver to the Trustee for the benefit of the Certificateholders
the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and
such other
documents and agreements as are required by Section 2.01, with the
Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No
substitution
is permitted to be made in any calendar month after the
Determination Date for
such month. Scheduled Payments due with respect to Substitute
Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and
will be
retained by the Seller on the next succeeding Distribution Date.
For the month
of substitution,
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distributions to Certificateholders will include the monthly
payment due on any
Deleted Mortgage Loan for such month and thereafter the Seller
shall be entitled
to retain all amounts received in respect of such Deleted Mortgage
Loan.
The Servicer shall amend the Mortgage Loan Schedule for the benefit
of
the Certificateholders to reflect the removal of the Deleted
Mortgage Loan and
the substitution of the Substitute Mortgage Loans and the Servicer
shall deliver
the amended Mortgage Loan Schedule to the Trustee. Upon the
substitution, the
Substitute Mortgage Loans shall be subject to this Agreement in all
respects,
and the Seller shall be deemed to have made with respect to the
Substitute
Mortgage Loans, as of the date of substitution, the representations
and
warranties made pursuant to Section 2.03(b) with respect to the
Mortgage Loan.
Upon any substitution and the deposit to the Certificate Account of
the amount
required to be deposited therein in connection with the
substitution as
described in the following paragraph, the Trustee shall release the
Mortgage
File held for the benefit of the Certificateholders relating to the
Deleted
Mortgage Loan to the Seller and shall execute and deliver at the
Seller's
direction such instruments of transfer or assignment prepared by
the Seller, in
each case without recourse, as shall be necessary to vest title in
the Seller,
or its designee, the Trustee's interest in any Deleted Mortgage
Loan substituted
for pursuant to this Section 2.03.
For any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
will
determine the amount (if any) by which the aggregate principal
balance of all
such Substitute Mortgage Loans as of the date of substitution is
less than the
aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after
application of the scheduled principal portion of the monthly
payments due in
the month of substitution). The amount of such shortage (the
"Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an
amount equal to
the aggregate of any unreimbursed Advances and Servicer Advances
with respect to
such Deleted Mortgage Loans shall be deposited into the Certificate
Account by
the Seller by the Distribution Account Deposit Date for the
Distribution Date in
the month succeeding the calendar month during which the related
Mortgage Loan
became required to be purchased or replaced hereunder. If the
Seller repurchases
a Mortgage Loan, the Purchase Price therefor shall be deposited in
the
Certificate Account pursuant to Section 3.06 by the Distribution
Account Deposit
Date for the Distribution Date in the month following the month
during which the
Seller became obligated hereunder to repurchase or replace the
Mortgage Loan and
upon such deposit of the Purchase Price and receipt of a Request
for Release in
the form of Exhibit N, the Trustee shall release the related
Mortgage File held
for the benefit of the Certificateholders to such Person, and the
Trustee shall
execute and deliver at such Person's direction such instruments of
transfer or
assignment prepared by such Person, in each case without recourse,
as shall be
necessary to transfer title from the Trustee. The obligation under
this
Agreement of any Person to cure, repurchase, or replace any
Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the
sole remedy
against the Person respecting the breach available to
Certificateholders, the
Depositor, or the Trustee on their behalf.
The representations and warranties made pursuant to this Section
2.03
shall survive delivery of the respective Mortgage Files to the
Trustee for the
benefit of the Certificateholders.
The Seller assigns to the Depositor and the Depositor assigns to
the
Trustee all rights the Seller might have under contracts with third
parties
relating to early payment defaults on the Mortgage Loans ("EPD
Rights") and the
Servicer assumes any related duties as part of it servicing
obligations.
Consistent with the Servicing Standard, the Servicer shall attempt
to enforce
the EPD rights. If the Servicer's enforcement of the EPD Rights
obligates the
Servicer to sell a Mortgage Loan to a third party, the Servicer
shall repurchase
the Mortgage Loan at the Purchase Price and sell the Mortgage Loan
to the third
party, provided however, in no case shall the Servicer be obligated
to
repurchase a Mortgage Loan on account of EPD Rights unless and
until the
Servicer shall have previously received repurchase payment
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from a third party. The Servicer shall deposit into the Certificate
Account all
amounts received in connection with the enforcement of EPD Rights,
not exceeding
the Purchase Price, with respect to any Mortgage Loan. Any amounts
received by
the Servicer with respect a Mortgage Loan in excess of the Purchase
Price shall
be retained by the Servicer as additional servicing compensation.
The Trustee,
upon receipt of certification from the Servicer of the deposit of
the Purchase
Price in connection with a repurchase of a Mortgage Loan and a
Request for File
Release from the Servicer, shall release or cause to be released to
the
purchaser of such Mortgage Loan the related Mortgage File and shall
execute and
deliver such instruments of transfer or assignment prepared by the
purchaser of
such Mortgage Loan, in each case without recourse, as shall be
necessary to vest
in the purchaser of such Mortgage Loan any Mortgage Loan released
pursuant
hereto and the purchaser of such Mortgage Loan shall succeed to all
the
Trustee's right, title and interest in and to such Mortgage Loan
and all
security and documents related thereto. Such assignment shall be an
assignment
outright and not for security. The purchaser of such Mortgage Loan
shall
thereupon own such Mortgage Loan, and all security and documents,
free of any
further obligation to the Trustee or the Certificateholders with
respect
thereto.
Section 2.04 Representations and Warranties of the Depositor as to
the
Mortgage Loans.
(a) The Depositor represents and warrants to the Trustee with
respect
to each Mortgage Loan as of the date of this Agreement or such
other date set
forth in this Agreement that as of the Closing Date, and following
the transfer
of the Mortgage Loans to it by the Seller, the Depositor had good
title to the
Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses, or
counterclaims.
(b) The representations and warranties in this Section 2.04
shall
survive delivery of the Mortgage Files to the Trustee. Upon
discovery by the
Depositor or the Trustee of any breach of any of the
representations and
warranties in this Section that materially and adversely affects
the interest of
the Certificateholders, the party discovering the breach shall give
prompt
written notice to the others and to each Rating Agency.
Section 2.05 Delivery of Opinion of Counsel in Connection with
Substitutions.
(a) Notwithstanding any contrary provision of this Agreement,
no
substitution pursuant to Section 2.02 or 2.03 shall be made more
than 90 days
after the Closing Date unless the Seller delivers to the Trustee an
Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of
either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such
substitution will not (i) result in the imposition of the tax on
"prohibited
transactions" on the Trust Fund or contributions after the Startup
Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as
a REMIC at
any time that any Certificates are outstanding.
(b) Upon discovery by the Depositor, the Seller, the Servicer or
the
Trustee that any Mortgage Loan does not constitute a "qualified
mortgage" within
the meaning of section 860G(a)(3) of the Code, the party
discovering such fact
shall promptly (and in any event within five Business Days of
discovery) give
written notice thereof to the other parties. In connection
therewith, the
Trustee shall require the Seller, at the Seller's option, to either
(i)
substitute, if the conditions in Section 2.03(c) with respect to
substitutions
are satisfied, a Substitute Mortgage Loan for the affected Mortgage
Loan, or
(ii) repurchase the affected Mortgage Loan within 90 days of such
discovery in
the same manner as it would a Mortgage Loan for a breach of
representation or
warranty made pursuant to Section 2.03. The Trustee shall reconvey
to the Seller
the Mortgage Loan to be released pursuant hereto in the same
manner, and on the
same terms and conditions, as it would a Mortgage Loan repurchased
for breach of
a representation or warranty contained in Section 2.03.
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Section 2.06 Execution
and Delivery of Certificates.
The Trustee acknowledges the transfer and assignment to it of the
Trust
Fund and, concurrently with such transfer and assignment, has
executed and
delivered to or upon the order of the Depositor, the Certificates
in authorized
denominations evidencing directly or indirectly the entire
ownership of the
Trust Fund. The Trustee agrees to hold the Trust Fund and exercise
the rights
referred to above for the benefit of all present and future Holders
of the
Certificates.
Section 2.07 REMIC
Matters.
The Preliminary Statement sets forth the designations and
"latest
possible maturity date" for federal income tax purposes of all
interests created
under this Agreement. The "Startup Day" for purposes of the REMIC
Provisions
shall be the Closing Date. Each REMIC's fiscal year shall be the
calendar year.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.
For and on behalf of the Certificateholders, the Servicer shall
service
and administer the Mortgage Loans in accordance with this Agreement
and the
Servicing Standard.
The Servicer shall not make or permit any modification, waiver,
or
amendment of any term of any Mortgage Loan that would cause any
REMIC created
under this Agreement to fail to qualify as a REMIC or result in the
imposition
of any tax under section 860F(a) or section 860G(d) of the
Code.
Without limiting the generality of the foregoing, the Servicer, in
its
own name or in the name of the Depositor and the Trustee, is hereby
authorized
and empowered by the Depositor and the Trustee, when the Servicer
believes it
appropriate in its reasonable judgment, to execute and deliver, on
behalf of the
Trustee, the Depositor, the Certificateholders, or any of them, any
instruments
of satisfaction or cancellation, or of partial or full release or
discharge, and
all other comparable instruments, with respect to the Mortgage
Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the
Depositor or
the Trustee any documents requiring execution and delivery by
either or both of
them appropriate to enable the Servicer to service and administer
the Mortgage
Loans to the extent that the Servicer is not permitted to execute
and deliver
such documents pursuant to the preceding sentence. Upon receipt of
the
documents, the Depositor or the Trustee shall execute the documents
and deliver
them to the Servicer.
The Servicer further is authorized and empowered by the Trustee,
on
behalf of the Certificateholders and the Trustee, in its own name
when the
Servicer believes it appropriate in its best judgment to register
any Mortgage
Loan on the MERS(R) System, or cause the removal from the
registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on
behalf of the
Trustee and the Certificateholders or any of them, any and all
instruments of
assignment and other comparable instruments with respect to such
assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee
for the
Trustee and its successors and assigns.
In accordance with and to the extent of the Servicing Standard,
the
Servicer shall advance funds necessary to effect the payment of
taxes and
assessments on the Mortgaged Properties, which advances shall be
reimbursable in
the first instance from related collections from the Mortgagors
pursuant to
Section 3.07, and further as provided in Section 3.09. The costs
incurred by the
Servicer in effecting the timely payments of taxes and assessments
on the
Mortgaged Properties and related insurance premiums shall not, for
the purpose
of calculating monthly distributions to the Certificateholders, be
added to the
Stated Principal Balances of the related Mortgage Loans,
notwithstanding that
the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer
from
undertaking any legal action that it may deem appropriate with
respect to the
Mortgage Loans including, without limitation, any rights or causes
of actions
arising out of the origination of the Mortgage Loans.
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Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor and the Trustee in Respect of
the
Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of
the Servicer under this Agreement and may, but is not obligated to,
perform, or
cause a designee to perform, any defaulted obligation of the
Servicer under this
Agreement and in connection with any such defaulted obligation to
exercise the
related rights of the Servicer under this Agreement; provided that
the Servicer
shall not be relieved of any of its obligations under this
Agreement by virtue
of such performance by the Depositor or its designee. Neither the
Trustee nor
the Depositor shall have any responsibility or liability for any
action or
failure to act by the Servicer nor shall the Trustee or the
Depositor be
obligated to supervise the performance of the Servicer under this
Agreement or
otherwise.
Section 3.04 [Reserved].
Section
3.05 Trustee to Act as Servicer.
If the Servicer for any reason is no longer the Servicer under
this
Agreement (including because of the occurrence or existence of an
Event of
Default or termination by the Depositor), the Trustee or its
successor shall
assume all of the rights and obligations of the Servicer under this
Agreement
arising thereafter (except that the Trustee shall not be
(i) liable for losses of the Servicer pursuant to Section 3.10
or any acts or omissions of the predecessor Servicer hereunder,
(ii) obligated to make Advances if it is prohibited from doing
so by applicable law,
(iii) obligated to effectuate repurchases or substitutions of
Mortgage Loans hereunder, including repurchases or
substitutions
pursuant to Section 2.02 or 2.03,
(iv) responsible for expenses of the Servicer pursuant to
Section 2.03, or
(v) deemed to have made any representations and warranties of
the Servicer hereunder). Any assumption shall be subject to
Section
7.02.
Notwithstanding anything else in this Agreement to the contrary, in
no
event shall the Trustee be liable for any servicing fee or for any
differential
in the amount of the Servicing Fee paid under this Agreement and
the amount
necessary to induce any successor Servicer to act as successor
Servicer under
this Agreement and the transactions provided for in this
Agreement.
Section 3.06 Collection of Mortgage Loan Payments; Servicing
Accounts;
Collection Account; Certificate Account; Distribution Account;
Supplemental
Interest Trust; Supplemental Interest Reserve Fund.
(a) In accordance with and to the extent of the Servicing Standard,
the
Servicer shall make reasonable efforts in accordance with the
customary and
usual standards of practice of prudent mortgage servicers to
collect all
payments called for under the Mortgage Loans to the extent the
procedures are
consistent with this Agreement and any related Required Insurance
Policy.
Consistent with the foregoing, the Servicer may in its discretion
(i) waive any
late payment charge or, subject to Section 3.20, any Prepayment
Charge in
connection
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with the prepayment of a Mortgage Loan and (ii) extend the due
dates for
payments due on a Delinquent Mortgage Loan for a period not greater
than 125
days. In connection with a seriously delinquent or defaulted
Mortgage Loan, the
Servicer may, consistent with the Servicing Standard, waive, modify
or vary any
term of that Mortgage Loan (including modifications that change the
Mortgage
Rate, forgive the payment of principal or interest or extend the
final maturity
date of that Mortgage Loan ), accept payment from the related
Mortgagor of an
amount less than the Stated Principal Balance in final satisfaction
of that
Mortgage Loan, or consent to the postponement of strict compliance
with any such
term or otherwise grant indulgence to any Mortgagor if in the
Servicer's
determination such waiver, modification, postponement or indulgence
is not
materially adverse to the interests of the Certificateholders
(taking into
account any estimated loss that might result absent such action)
and is expected
to minimize the loss on such Mortgage Loan; provided, however, the
Servicer
shall not initiate new lending to such Mortgagor through the Trust
and cannot,
except as provided in the immediately succeeding sentence, extend
the maturity
of any Mortgage Loan past the date on which the final payment is
due on the
latest maturing Mortgage Loan as of the Cut-off Date. With respect
to no more
than 5% of the Mortgage Loans (measured by aggregate Cut-off Date
Principal
Balance of the Mortgage Loans), the Servicer may extend the
maturity of a
Mortgage Loan past the date on which the final payment is due on
the latest
maturing Mortgage Loan as of the Cut-off Date, but in no event more
than one
year past such date. In the event of any such arrangement, the
Servicer shall
make Advances on the related Mortgage Loan in accordance with
Section 4.01
during the scheduled period in accordance with the amortization
schedule of the
Mortgage Loan without modification thereof because of the
arrangements. The
Servicer shall not be required to institute or join in litigation
with respect
to collection of any payment (whether under a Mortgage, Mortgage
Note, or
otherwise or against any public or governmental authority with
respect to a
taking or condemnation) if it reasonably believes that enforcing
the provision
of the Mortgage or other instrument pursuant to which the payment
is required is
prohibited by applicable law. The Servicer shall not have the
discretion to sell
any Delinquent or defaulted Mortgage Loan.
(b) The Servicer shall establish and maintain a Certificate
Account
into which the Servicer shall deposit on a daily basis (i) within
one Business
Day of deposit in the Collection Account (in the case of items (i)
through (iii)
below) and (2) within one Business Day of receipt (in the case of
all other
items), except as otherwise specified herein, the following
payments and
collections received by it in respect of Mortgage Loans after the
Cut-off Date
(other than in respect of principal and interest due on the
Mortgage Loans by
the Cut-off Date) and the following amounts required to be
deposited hereunder:
(i) all payments on account of principal on the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, net of the Servicing Fee;
(iii) all Insurance Proceeds, Subsequent Recoveries and
Liquidation Proceeds, other than proceeds to be applied to the
restoration or repair of the Mortgaged Property or released to
the
Mortgagor in accordance with the Servicer's normal servicing
procedures;
(iv) any amount required to be deposited by the Servicer
pursuant to Section 3.06(f) in connection with any losses on
Permitted
Investments;
(v) any amounts required to be deposited by the Servicer
pursuant to Sections 3.10 and 3.12;
(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section
4.01;
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(viii) any other amounts required to be deposited under this
Agreement; and
(ix) all Prepayment Charges collected.
In addition, with respect to any Mortgage Loan that is subject to
a
buydown agreement, on each Due Date for the Mortgage Loan, in
addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause
funds to be
deposited into the Certificate Account in an amount required to
cause an amount
of interest to be paid with respect to the Mortgage Loan equal to
the amount of
interest that has accrued on the Mortgage Loan from the preceding
Due Date at
the Mortgage Rate net of the Servicing Fee Rate on that date.
The foregoing requirements for remittance by the Servicer shall
be
exclusive, it being understood and agreed that, without limiting
the generality
of the foregoing, payments in the nature of late payment charges or
assumption
fees, if collected, need not be remitted by the Servicer. If the
Servicer remits
any amount not required to be remitted, it may at any time withdraw
that amount
from the Certificate Account, any provision in this Agreement to
the contrary
notwithstanding. The withdrawal or direction may be accomplished by
delivering
written notice of it to the Trustee or any other institution
maintaining the
Certificate Account that describes the amounts deposited in error
in the
Certificate Account. The Servicer shall maintain adequate records
with respect
to all withdrawals made pursuant to this 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.
(c) The Trustee shall establish and maintain the Distribution
Account
on behalf of the Certificateholders. The Trustee shall, promptly
upon receipt,
deposit in the Distribution Account and retain in the Distribution
Account the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(d) in connection with any losses on Permitted Investments;
and
(iii) any other amounts deposited under this Agreement that
are required to be deposited in the Distribution Account.
If the Servicer remits any amount not required to be remitted, it
may
at any time direct the Trustee in writing to withdraw that amount
from the
Distribution Account, any provision in this Agreement to the
contrary
notwithstanding. The direction may be accomplished by delivering an
Officer's
Certificate to the Trustee that describes the amounts deposited in
error in the
Distribution Account. All funds deposited in the Distribution
Account shall be
held by the Trustee in trust for the Certificateholders until
disbursed in
accordance with this Agreement or withdrawn in accordance with
Section 3.09. In
no event shall the Trustee incur liability for withdrawals from the
Distribution
Account at the direction of the Servicer.
(d) Each institution at which the Certificate Account is
maintained
shall invest the funds in such account as directed in writing by
the Servicer in
Permitted Investments, which shall mature not later than the second
Business Day
preceding the related Distribution Account Deposit Date (except
that if the
Permitted Investment is an obligation of the institution that
maintains the
account, then the Permitted Investment shall mature not later than
the Business
Day preceding the Distribution Account Deposit Date) and which
shall not be sold
or disposed of before its maturity. The funds in the Distribution
Account shall
remain uninvested. All such Permitted Investments shall be made in
the name of
the Trustee, for the
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benefit of the Certificateholders. All income realized from any
such investment
of funds on deposit in the Certificate Account shall be for the
benefit of the
Servicer as servicing compensation and shall be remitted to it
monthly as
provided in this Agreement. The amount of any realized losses on
Permitted
Investments in the Certificate Account shall promptly be deposited
by the
Servicer in the Certificate Account. The Trustee shall not be
liable for the
amount of any loss incurred in respect of any investment or lack of
investment
of funds held in the Certificate Account and made in accordance
with this
Section 3.06.
(e) (i) On the Closing Date, there is hereby established a
separate
trust (the "Supplemental Interest Trust"), the assets of which
shall consist of
the Supplemental Interest Reserve Fund and the Supplemental
Interest Trustee's
rights and obligations under the Corridor Contract. The
Supplemental Interest
Trust shall be maintained by the Supplemental Interest Trustee, who
initially
shall be the Trustee.
(ii) On the Closing Date, the Supplemental Interest Trustee
shall
establish and maintain in its name, in trust for the benefit of the
Holders of
the Class A-10 Certificates, the Supplemental Interest Reserve
Fund. All funds
on deposit in the Supplemental Interest Reserve Fund shall be held
separate and
apart from, and shall not be commingled with, any other moneys,
including
without limitation, other moneys held by the Trustee pursuant to
this Agreement.
(iii) On each Distribution Date, the Supplemental Interest
Trustee
shall deposit into the Supplemental Interest Reserve Fund all
amounts received
in respect of the Corridor Contract for the Class A-10 Certificates
for the
related Interest Accrual Period. Funds in the Supplemental Interest
Reserve Fund
shall not be invested. The Supplemental Interest Trustee shall make
withdrawals
from the Supplemental Interest Reserve Fund to make distributions
pursuant to
Section 4.08 exclusively (other than as expressly provided for in
Section 3.09).
(f) The Servicer shall give notice to the Trustee, the Seller,
each Rating Agency and the Depositor of any proposed change of
the
location of the Certificate Account not later than 30 days and not
more
than
45 days prior to any change of this Agreement. The Trustee
shall
give notice to the Servicer, the Seller, each Rating Agency and
the
Depositor of any proposed change of the location of the
Distribution
Account not later than 30 days and not more than 45 days prior to
any
change of this Agreement. The Supplemental Interest Trustee shall
give
notice to the Servicer, the Seller, each Rating Agency and the
Depositor of any proposed change of the location of the
Supplemental
Interest Reserve Fund 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)
the
Servicer out of related collections for any payments made pursuant
to
Section 3.01 (with respect to taxes and assessments and
insurance
premiums) and Section 3.10 (with respect to hazard insurance),
to
refund to any Mortgagors any sums determined to be overages, to
pay
interest, if required by law or the related Mortgage or Mortgage
Note,
to Mortgagors on balances in the Escrow
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Account or to clear and terminate the Escrow Account at the
termination
of this Agreement in accordance with Section 9.01. The Escrow
Accounts
shall not be a part of the Trust Fund.
(c) The Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by the Mortgagors or
advanced
by the Servicer on the date when the tax, premium or other cost
for
which such payment is intended is due, but the Servicer shall
be
required so to advance only to the extent that such advances, in
the
good faith judgment of the Servicer, will be recoverable by the
Servicer out of Insurance Proceeds, Liquidation Proceeds or
otherwise.
Section 3.08 Access to Certain Documentation and Information
Regarding
the Mortgage Loans.
The Servicer shall afford the Depositor and the Trustee
reasonable
access to all records and documentation regarding the Mortgage
Loans and all
accounts, insurance information and other matters relating to this
Agreement,
such access being afforded without charge, but only upon reasonable
request and
during normal business hours at the office designated by the
Servicer.
Upon reasonable advance notice in writing, the Servicer will
provide to
each Certificateholder or Certificate Owner that is a savings and
loan
association, bank, or insurance company certain reports and
reasonable access to
information and documentation regarding the Mortgage Loans
sufficient to permit
the Certificateholder or Certificate Owner to comply with
applicable regulations
of the OTS or other regulatory authorities with respect to
investment in the
Certificates. The Servicer shall be entitled to be reimbursed by
each such
Certificateholder or Certificate Owner for actual expenses incurred
by the
Servicer in providing the reports and access.
Section 3.09 Permitted Withdrawals from the Certificate Account,
the
Distribution Account and the Supplemental Interest Reserve
Fund.
(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 or successor Servicer for the
unreimbursed Advances made by it, such right of reimbursement
pursuant
to this subclause (ii) being limited to amounts received on the
Mortgage Loans in respect of which the Advance was made;
(iii) to reimburse the Servicer or successor Servicer for any
Nonrecoverable Advance previously made by it;
(iv) to reimburse the Servicer for Insured Expenses from the
related Insurance Proceeds;
(v) to reimburse the Servicer for (a) unreimbursed Servicing
Advances, the Servicer's right to reimbursement pursuant to this
clause
(a) with respect to any Mortgage Loan being limited to amounts
received
on the Mortgage Loans that represent late recoveries of the
payments
for which the advances were made pursuant to Section 3.01 or
Section
3.07, (b) unreimbursed Servicing
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Advances made in respect of a Mortgage Loan for which such
Servicing
Advances are not recoverable from the Mortgagor 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 of such Mortgage Loan that
has
been purchased pursuant to Section 2.02, 2.03, or 3.12, all
amounts
received thereon after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the Depositor
for expenses incurred by any of them and reimbursable pursuant
to
Section 6.03;
(viii) to withdraw any amount deposited in the Certificate
Account and not required to be deposited in the Certificate
Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
the Available Funds and the Trustee Fee for the Distribution Date,
to
the extent on deposit, and (2) the Prepayment Charges on deposit,
and
remit such amount to the Trustee for deposit in the
Distribution
Account; and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting, on a
Mortgage
Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate
Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any
withdrawal from the Certificate Account pursuant to subclause
(iii), the
Servicer shall deliver to the Trustee an Officer's Certificate of a
Servicing
Officer indicating the amount of any previous Advance determined by
the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage
Loans and
their respective portions of the Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution
Account for distributions to Certificateholders in the manner
specified
in this Agreement (and to withhold from the amounts so withdrawn
the
amount of any taxes that it is authorized to withhold pursuant to
the
last paragraph of Section 8.11). In addition, the Trustee may from
time
to time make withdrawals from the Distribution Account for the
following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution Date;
(ii) to withdraw and return to the Servicer any amount
deposited in the Distribution Account and not required to be
deposited
therein; and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) The Supplemental Interest Trustee shall withdraw funds on
deposit in the Supplemental Interest Reserve Fund from the
Corridor
Contract for distribution to the Class A-10 Certificates in the
manner
specified in Section 4.08 (and to withhold from the amounts so
withdrawn the amount of any taxes that it is authorized to
retain
pursuant to the second to last paragraph of Section 8.11). In
addition,
the Supplemental Interest Trustee may from time to time make
withdrawals from the Supplemental Interest Reserve Fund for the
following purposes:
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(i) to withdraw any amount deposited in the Supplemental
Interest Reserve Fund and not required to be deposited therein;
and
(ii) to clear and terminate the Supplemental Interest Reserve
Fund upon the earlier of (i) the reduction of the Class
Certificate
Balance of the Class A-10 Certificates to zero, and (ii) the
termination of this Agreement pursuant to Section 9.01.
Section 3.10 Maintenance of Hazard Insurance; Maintenance of
Primary
Insurance Policies.
(a) The Servicer shall maintain, for each Mortgage Loan,
hazard insurance with extended coverage in an amount that is at
least
equal to the lesser of
(i) the
maximum insurable value of the improvements securing the
Mortgage Loan and
(ii) the greater of (y) the outstanding principal balance of
the
Mortgage Loan and (z) an amount such that the proceeds of the
policy are
sufficient to prevent the Mortgagor or the mortgagee from becoming
a co-insurer.
Each policy of standard hazard insurance shall contain, or have
an
accompanying endorsement that contains, a standard mortgagee
clause. Any amounts
collected under the policies (other than the amounts to be applied
to the
restoration or repair of the related Mortgaged Property or amounts
released to
the Mortgagor in accordance with the Servicer's normal servicing
procedures)
shall be deposited in the Certificate Account. Any cost incurred in
maintaining
any insurance shall not, for the purpose of calculating monthly
distributions to
the Certificateholders or remittances to the Trustee for their
benefit, be added
to the principal balance of the Mortgage Loan, notwithstanding that
the Mortgage
Loan so permits. Such costs shall be recoverable by the Servicer
out of late
payments by the related Mortgagor or out of Liquidation Proceeds to
the extent
permitted by Section 3.09. No earthquake or other additional
insurance is to be
required of any Mortgagor or maintained on property acquired in
respect of a
Mortgage other than pursuant to any applicable laws and regulations
in force
that require additional insurance. If the Mortgaged Property is
located at the
time of origination of the Mortgage Loan in a federally designated
special flood
hazard area and the area is participating in the national flood
insurance
program, the Servicer shall maintain flood insurance for the
Mortgage Loan. The
flood insurance shall be in an amount equal to the least of (i) the
original
principal balance of the related Mortgage Loan, (ii) the
replacement value of
the improvements that are part of the Mortgaged Property, and (iii)
the maximum
amount of flood insurance available for the related Mortgaged
Property under the
national flood insurance program.
If the Servicer obtains and maintains a blanket policy insuring
against
hazard losses on all of the Mortgage Loans, it shall have satisfied
its
obligations in the first sentence of this Section 3.10. The policy
may contain a
deductible clause on terms substantially equivalent to those
commercially
available and maintained by comparable servicers. If the policy
contains a
deductible clause and a policy complying with the first sentence of
this Section
3.10 has not been maintained on the related Mortgaged Property, and
if a loss
that would have been covered by the required policy occurs, the
Servicer shall
deposit in the Certificate Account, without any right of
reimbursement, the
amount not otherwise payable under the blanket policy because of
the deductible
clause. In connection with its activities as Servicer of the
Mortgage Loans, the
Servicer agrees to present, on behalf of itself, the Depositor, and
the Trustee
for the benefit of the Certificateholders, claims under any blanket
policy.
(b) The Servicer shall not take any action that would result
in non-coverage under any applicable Primary Insurance Policy of
any
loss that, but for the actions of the Servicer, would have
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been covered thereunder. The Servicer shall not cancel or refuse
to
renew any Primary Insurance Policy that is in effect at the date of
the
initial issuance of the Certificates and is required to be kept
in
force hereunder unless the replacement Primary Insurance Policy for
the
canceled or non-renewed policy is maintained with a Qualified
Insurer.
The Servicer need not maintain any Primary Insurance Policy if
maintaining the Primary Insurance Policy is prohibited by
applicable
law. The Servicer agrees, to the extent permitted by applicable
law, to
effect the timely payment of the premiums on each Primary
Insurance
Policy, and any costs not otherwise recoverable shall be
recoverable by
the Servicer from the related liquidation proceeds.
In connection with its activities as Servicer of the Mortgage
Loans,
the Servicer agrees to present, on behalf of itself, the Trustee
and the
Certificateholders, claims to the insurer under any Primary
Insurance Policies
and, in this regard, to take any reasonable action in accordance
with the
Servicing Standard necessary to permit recovery under any Primary
Insurance
Policies respecting defaulted Mortgage Loans. Any amounts collected
by the
Servicer under any Primary Insurance Policies shall be deposited in
the
Certificate Account or the Collection Account (as applicable).
Section 3.11 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) Except as otherwise provided in this Section 3.11, when
any property subject to a Mortgage has been conveyed by the
Mortgagor,
the Servicer shall to the extent that it has knowledge of the
conveyance and in accordance with the Servicing Standard, enforce
any
due-on-sale clause contained in any Mortgage Note or Mortgage, to
the
extent permitted under applicable law and governmental regulations,
but
only to the extent that enforcement will not adversely affect
or
jeopardize coverage under any Required Insurance Policy.
Notwithstanding the foregoing, the Servicer is not required to
exercise
these rights with respect to a Mortgage Loan if the Person to whom
the
related Mortgaged Property has been conveyed or is proposed to
be
conveyed satisfies the conditions contained in the Mortgage Note
and
Mortgage related thereto and the consent of the mortgagee under
the
Mortgage Note or Mortgage is not otherwise so required under
the
Mortgage Note or Mortgage as a condition to the transfer.
If (i) the Servicer is prohibited by law from enforcing any
due-on-sale
clause, (ii) coverage under any Required Insurance Policy would be
adversely
affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv)
nonenforcement is otherwise permitted hereunder, the Servicer is
authorized,
subject to Section 3.11(b), to take or enter into an assumption and
modification
agreement from or with the person to whom the property has been or
is about to
be conveyed, pursuant to which the person becomes liable under the
Mortgage Note
and, unless prohibited by applicable state law, the Mortgagor
remains liable
thereon. The Mortgage Loan must continue to be covered (if so
covered before the
Servicer enters into the agreement) by the applicable Required
Insurance
Policies.
The Servicer, subject to Section 3.11(b), is also authorized with
the
prior approval of the insurers under any Required Insurance
Policies to enter
into a substitution of liability agreement with the Person,
pursuant to which
the original Mortgagor is released from liability and the Person is
substituted
as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under
this Section
3.11 because of any transfer or assumption that the Servicer
reasonably believes
it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale
clause to the extent set forth in Section 3.11(a), in any case in
which
a Mortgaged Property has been conveyed to a Person by a Mortgagor,
and
the Person is to enter into an assumption agreement or
modification
agreement or supplement to the Mortgage Note or Mortgage that
requires
the signature of the Trustee, or if an instrument of release signed
by
the Trustee is required releasing the Mortgagor
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from liability on the Mortgage Loan, the Servicer shall prepare
and
deliver to the Trustee for signature and shall direct the Trustee,
in
writing, to execute the assumption agreement with the Person to
whom
the Mortgaged Property is to be conveyed, and the modification
agreement or supplement to the Mortgage Note or Mortgage or
other
instruments appropriate to carry out the terms of the Mortgage Note
or
Mortgage or otherwise to comply with any applicable laws
regarding
assumptions or the transfer of the Mortgaged Property to the
Person. In
connection with any such assumption, no material term of the
Mortgage
Note may be changed.
In addition, the substitute Mortgagor and the Mortgaged Property
must
be acceptable to the Servicer in accordance with its underwriting
standards as
then in effect. Together with each substitution, assumption, or
other agreement
or instrument delivered to the Trustee for execution by it, the
Servicer shall
deliver an Officer's Certificate signed by a Servicing Officer
stating that the
requirements of this subsection have been met in connection with
such Officer's
Certificate. The Servicer shall notify the Trustee that any
substitution or
assumption agreement has been completed by forwarding to the
Trustee the
original of the substitution or assumption agreement, which in the
case of the
original shall be added to the related Mortgage File and shall, for
all
purposes, be considered a part of the Mortgage File to the same
extent as all
other documents and instruments constituting a part of the Mortgage
File. The
Servicer will retain any fee collected by it for entering into an
assumption or
substitution of liability agreement as additional servicing
compensation.
Section 3.12 Realization Upon Defaulted Mortgage Loans.
The Servicer shall use reasonable efforts in accordance with
the
Servicing Standard to foreclose on or otherwise comparably convert
the ownership
of assets securing such of the Mortgage Loans as come into and
continue in
default and as to which no satisfactory arrangements can be made
for collection
of delinquent payments. In connection with the foreclosure or other
conversion,
the Servicer shall follow the Servicing Standard and shall follow
the
requirements of the insurer under any Required Insurance Policy.
The Servicer
shall not be required to expend its own funds in connection with
any foreclosure
or towards the restoration of any property unless it determines (i)
that the
restoration or foreclosure will increase the proceeds of
liquidation of the
Mortgage Loan after reimbursement to itself of restoration expenses
and (ii)
that restoration expenses will be recoverable to it through
Liquidation Proceeds
(respecting which it shall have priority for purposes of
withdrawals from the
Certificate Account). The Servicer shall be responsible for all
other costs and
expenses incurred by it in any foreclosure proceedings. The
Servicer is entitled
to reimbursement of such costs and expenses from the liquidation
proceeds with
respect to the related Mortgaged Property, as provided in the
definition of
Liquidation Proceeds. If the Servicer has knowledge that a
Mortgaged Property
that the Servicer is contemplating acquiring in foreclosure or by
deed in lieu
of foreclosure is located within a one mile radius of any site
listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of
1984 or other
site with environmental or hazardous waste risks known to the
Servicer, the
Servicer will, before acquiring the Mortgaged Property, consider
the risks and
only take action in accordance with its established environmental
review
procedures.
With respect to any REO Property, the deed or certificate of sale
shall
be taken in the name of the Trustee for the benefit of the
Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's
name shall be
placed on the title to the REO Property solely as the Trustee
hereunder and not
in its individual capacity. The Servicer shall ensure that the
title to the REO
Property references the Pooling and Servicing Agreement and the
Trustee's
capacity hereunder. Pursuant to its efforts to sell the REO
Property, the
Servicer shall either itself or through an agent selected by the
Servicer
protect and conserve the REO Property in accordance with the
Servicing Standard.
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The Servicer shall perform the tax reporting and withholding
required
by sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by section 6050H of the
Code with
respect to the receipt of mortgage interest from individuals and,
if required by
section 6050P of the Code with respect to the cancellation of
indebtedness by
certain financial entities, by preparing any required tax and
information
returns, in the form required.
If the Trust Fund acquires any Mortgaged Property as aforesaid
or
otherwise in connection with a default or imminent default on a
Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively
marketed for
sale, and the Servicer shall dispose of the Mortgaged Property as
soon as
practicable, and in any case before the end of the third calendar
year following
the calendar year in which the Trust Fund acquires the property.
Notwithstanding
any other provision of this Agreement, no Mortgaged Property
acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or
otherwise
used for the production of income by or on behalf of the Trust
Fund.
The decision of the Servicer to foreclose on a defaulted Mortgage
Loan
shall be subject to a determination by the Servicer that the
proceeds of the
foreclosure would exceed the costs and expenses of bringing a
foreclosure
proceeding. The proceeds received from the maintenance of any REO
Properties,
net of reimbursement to the Servicer for costs incurred (including
any property
or other taxes) in connection with maintenance of the REO
Properties and net of
unreimbursed Servicing Fees, Advances, and Servicing Advances,
shall be applied
to the payment of principal of and interest on the related
defaulted Mortgage
Loans (with interest accruing as though the Mortgage Loans were
still current
and adjustments, if applicable, to the Mortgage Rate were being
made in
accordance with the Mortgage Note) and all such proceeds shall be
deemed, for
all purposes in this Agreement, to be payments on account of
principal and
interest on the related Mortgage Notes and shall be deposited into
the
Certificate Account. To the extent the net proceeds received during
any calendar
month exceeds the amount attributable to amortizing principal and
accrued
interest at the related Mortgage Rate on the related Mortgage Loan
for the
calendar month, the excess shall be considered to be a partial
prepayment of
principal of the related Mortgage Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as
any
proceeds from an REO Property, will be applied in the following
order of
priority: first, to reimburse the Servicer for any related
unreimbursed
Servicing Advances or Servicing Fees or for any related
unreimbursed Advances,
as applicable; second, to reimburse the Servicer, as applicable,
and to
reimburse the Certificate Account for any Nonrecoverable Advances
(or portions
thereof) that were previously withdrawn by the Servicer pursuant to
Section
3.09(a)(iii) that related to the Mortgage Loan; third, to accrued
and unpaid
interest (to the extent no Advance has been made for such amount or
any such
Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the
month in which
such amounts are required to be distributed; and fourth, as a
recovery of
principal of the Mortgage Loan. The Servicer will retain any Excess
Proceeds
from the liquidation of a Liquidated Mortgage Loan as additional
servicing
compensation pursuant to Section 3.15.
The Servicer may agree to a modification of any Mortgage Loan at
the
request of the related Mortgagor if (i) the modification is in lieu
of a
refinancing and (ii) the Servicer purchases that Mortgage Loan from
the Trust
Fund as described below. Upon the agreement of the Servicer to
modify a Mortgage
Loan in accordance with the preceding sentence, the Servicer shall
purchase that
Mortgage Loan and all interest of the Trustee in that Mortgage Loan
shall
automatically be deemed transferred and assigned to the Servicer
and all
benefits and burdens of ownership thereof, including the right to
accrued
interest thereon from the date of purchase and the risk of default
thereon,
shall pass to the Servicer. The Servicer shall promptly deliver to
the Trustee a
certification of a Servicing Officer to the effect that all
requirements of this
paragraph have been satisfied with respect to a Mortgage Loan to be
repurchased
pursuant to this paragraph.
60
<PAGE>
The Servicer shall deposit the Purchase Price for any Mortgage
Loan
repurchased pursuant to Section 3.12 in the Certificate Account
pursuant to
Section 3.06 within one Business Day after the purchase of the
Mortgage Loan.
Upon receipt by the Trustee of written notification of any such
deposit signed
by a Servicing Officer, the Trustee shall release to the Servicer
the related
Mortgage File and shall execute and deliver such instruments of
transfer or
assignment, in each case without recourse, as shall be necessary to
vest in the
Servicer any Mortgage Loan previously transferred and assigned
pursuant hereto.
The Servicer covenants and agrees to indemnify the Trust Fund
against any
liability for any "prohibited transaction" taxes and any related
interest,
additions, and penalties imposed on the Trust Fund established
hereunder as a
result of any modification of a Mortgage Loan effected pursuant to
this Section,
or any purchase of a Mortgage Loan by the Servicer in connection
with a
modification (but such obligation shall not prevent the Servicer or
any other
appropriate Person from contesting any such tax in appropriate
proceedings and
shall not preven
