EXHIBIT 99.1
------------
The Pooling and Servicing Agreement.
<PAGE>
Exhibit 99.1
==============================================================================
INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November
1, 2006
----------------------------------------
INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR33
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-AR33
==============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S>
<C>
ARTICLE ONE
DEFINITIONS......................................................................................10
Section 1.01
Definitions...........................................................................10
Section 1.02 Rules of
Construction.................................................................44
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES.....................................46
Section 2.01 Conveyance
of Mortgage
Loans..........................................................46
Section 2.02 Acceptance
by the Trustee of the Mortgage
Loans.......................................49
Section 2.03
Representations, Warranties, and Covenants of the Seller and the
Servicer.............51
Section 2.04
Representations and Warranties of the Depositor as to the Mortgage
Loans..............53
Section 2.05 Delivery
of Opinion of Counsel in Connection with
Substitutions.......................53
Section 2.06 Execution
and Delivery of
Certificates................................................53
Section 2.07 REMIC
Matters.........................................................................54
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS.................................................55
Section 3.01 Servicer
to Service Mortgage
Loans....................................................55
Section 3.02
[Reserved]............................................................................56
Section 3.03 Rights of
the Depositor and the Trustee in Respect of the
Servicer....................56
Section 3.04
[Reserved]............................................................................56
Section 3.05 Trustee to
Act as
Servicer............................................................56
Section 3.06 Collection
of Mortgage Loan Payments; Certificate Account; Distribution
Account...............................................................................56
Section 3.07 Collection
of Taxes, Assessments and Similar Items; Escrow
Accounts...................59
Section 3.08 Access to
Certain Documentation and Information Regarding the Mortgage
Loans..........59
Section 3.09 Permitted
Withdrawals from the Certificate Account and the Distribution
Account...............................................................................60
Section 3.10
Maintenance of Hazard Insurance; Maintenance of Primary Insurance
Policies............61
Section 3.11
Enforcement of Due-On-Sale Clauses; Assumption
Agreements.............................62
Section 3.12
Realization Upon Defaulted Mortgage
Loans.............................................63
Section 3.13 Trustee to
Cooperate; Release of Mortgage
Files.......................................65
Section 3.14 Documents,
Records and Funds in Possession of the Servicer to be Held for
the
Trustee...............................................................................66
Section 3.15 Servicing
Compensation................................................................66
Section 3.16 Access to
Certain
Documentation.......................................................67
Section 3.17 Annual
Statement as to
Compliance.....................................................67
Section 3.18 Errors and
Omissions Insurance; Fidelity
Bonds........................................67
Section 3.19
Notification of
Adjustments...........................................................67
Section 3.20 Prepayment
Charges....................................................................68
i
<PAGE>
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE
SERVICER......................................................69
Section 4.01
Advances..............................................................................69
Section 4.02 Priorities
of
Distribution............................................................70
Section 4.03
Cross-Collateralization; Adjustments to Available Funds for
Aggregate Loan
Group
I...............................................................................75
Section 4.04
[Reserved]............................................................................76
Section 4.05 Allocation
of Realized
Losses.........................................................76
Section 4.06 Monthly
Statements to
Certificateholders..............................................78
ARTICLE FIVE THE
CERTIFICATES................................................................................81
Section 5.01 The
Certificates......................................................................81
Section 5.02
Certificate Register; Registration of Transfer and Exchange of
Certificates...........81
Section 5.03 Mutilated,
Destroyed, Lost or Stolen
Certificates.....................................85
Section 5.04 Persons
Deemed
Owners.................................................................85
Section 5.05 Access to
List of Certificateholders' Names and
Addresses.............................85
Section 5.06
Maintenance of Office or
Agency.......................................................86
ARTICLE SIX THE DEPOSITOR AND THE
SERVICER...................................................................87
Section 6.01 Respective
Liabilities of the Depositor and the
Servicer..............................87
Section 6.02 Merger or
Consolidation of the Depositor or the
Servicer..............................87
Section 6.03 Limitation
on Liability of the Depositor, the Seller, the Servicer, and
Others........87
Section 6.04 Limitation
on Resignation of the
Servicer.............................................88
ARTICLE SEVEN
DEFAULT........................................................................................89
Section 7.01 Events of
Default.....................................................................89
Section 7.02 Trustee to
Act; Appointment of
Successor..............................................90
Section 7.03
Notification to
Certificateholders....................................................91
ARTICLE EIGHT CONCERNING THE
TRUSTEE.........................................................................93
Section 8.01 Duties of
the
Trustee.................................................................93
Section 8.02 Certain
Matters Affecting the
Trustee.................................................93
Section 8.03 Trustee
Not Liable for Certificates or Mortgage
Loans.................................95
Section 8.04 Trustee
May Own
Certificates..........................................................95
Section 8.05 Trustee's
Fees and
Expenses...........................................................95
Section 8.06
Eligibility Requirements for the
Trustee..............................................96
Section 8.07
Resignation and Removal of the
Trustee................................................96
Section 8.08 Successor
Trustee.....................................................................97
Section 8.09 Merger or
Consolidation of the
Trustee................................................98
Section 8.10
Appointment of Co-Trustee or Separate
Trustee.........................................98
Section 8.11 Tax
Matters...........................................................................99
ARTICLE NINE
TERMINATION....................................................................................102
Section 9.01
Termination upon Liquidation or Purchase of the Mortgage
Loans.......................102
ii
<PAGE>
Section 9.02 Final
Distribution on the
Certificates...............................................103
Section 9.03
Additional Termination
Requirements..................................................104
ARTICLE TEN MISCELLANEOUS
PROVISIONS........................................................................105
Section 10.01
Amendment............................................................................105
Section 10.02 Recordation of
Agreement;
Counterparts...............................................106
Section 10.03 Governing
Law........................................................................107
Section 10.04 Intention of
Parties.................................................................107
Section 10.05
Notices..............................................................................107
Section 10.06
Severability of
Provisions...........................................................108
Section 10.07
Assignment...........................................................................108
Section 10.08 Limitation on
Rights of
Certificateholders...........................................108
Section 10.09 Inspection and
Audit
Rights..........................................................109
Section 10.10 Certificates
Nonassessable and Fully
Paid............................................109
Section 10.11 Official
Record......................................................................109
Section 10.12 Protection of
Assets.................................................................110
Section 10.13 Qualifying
Special Purpose
Entity....................................................110
ARTICLE ELEVEN EXCHANGE ACT
REPORTING.......................................................................110
Section 11.01 Filing
Obligations...................................................................110
Section 11.02 Form 10-D
Filings....................................................................110
Section 11.03 Form 8-K
Filings.....................................................................111
Section 11.04 Form 10-K
Filings....................................................................112
Section 11.05 Sarbanes-Oxley
Certification.........................................................112
Section 11.06 Form 15
Filing.......................................................................113
Section 11.07 Report on
Assessment of Compliance and
Attestation...................................113
Section 11.08 Use of
Subcontractors................................................................114
Section 11.09
Amendments...........................................................................114
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:
Reserved................................................................................S-IV-1
Schedule V: Form of
Monthly
Report...................................................................S-V-1
EXHIBITS
Exhibit A: Form
of Senior Certificate (excluding 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:
[Reserved].................................................................................P-1
Exhibit Q:
[Reserved].................................................................................Q-1
iv
<PAGE>
Exhibit R: Form
of Performance Certification
(Trustee)................................................R-1
Exhibit S: Form
of Servicing Criteria To Be Addressed in Assessment
of Compliance
Statement................................................................S-1
Exhibit T: List
of Item 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. As provided in this
Agreement, the
Trustee shall elect that the Trust Fund (exclusive of any amounts
in respect
of waived Prepayment Charges paid by the Servicer to the Class I-P
and Class
II-P Certificates, as applicable, pursuant to the second paragraph
of Section
3.20) be treated for federal income tax purposes as comprising
three real
estate mortgage investment conduits (each, a "REMIC" or, in the
alternative,
"REMIC 1," "REMIC 2" and the "Master REMIC"). Each Certificate,
other than the
Class A-R Certificate, will represent ownership of one or more
regular
interests in the Master REMIC for purposes of the REMIC Provisions.
The Class
A-R represents ownership of the sole class of residual interest in
each REMIC
created under this Agreement. The Master REMIC will hold as assets
the several
classes of uncertificated REMIC 2 Interests (other than the Class
R-2
Interest). REMIC 2 will hold as assets the several classes of
uncertificated
REMIC 1 Interests (other than the Class R-1 Interest). REMIC 1 will
hold as
assets all property of the Trust Fund. Each REMIC 2 Interest (other
than the
Class R-2 Interest) is hereby designated as a regular interest in
REMIC 2.
Each REMIC 1 Interest (other than the Class R-1 Interest) is hereby
designated
as a regular interest in REMIC 1. The latest possible maturity date
of all
REMIC regular interests created in this Agreement shall be the
Latest Possible
Maturity Date. All amounts in respect of waived Prepayment Charges
paid by the
Servicer to the Class I-P and Class II-P Certificates, as
applicable, pursuant
to the second paragraph of Section 3.20 will be treated as paid
directly by
the Servicer to the Class I-P and Class II-P Certificates, as
applicable, and
not as paid by or through any REMIC created under this
Agreement.
REMIC 1
The
REMIC 1 Regular Interests will have the initial principal
balance,
Pass-Through Rates and corresponding Loan Groups as set forth in
the following
table:
<TABLE>
<CAPTION>
Initial Principal
Pass-Through
Corresponding
REMIC 1 Interests
Balance
Rate
Loan Group
-----------------
-------
----
----------
<S>
<C>
<C>
<C>
A-1 (0.9% of the
Assumed Balance (calculated
for this purpose solely as if there were no
adjustment for any Senior Termination Date
of Loan Group 1)
(1)
(2)
1
B-1 (0.1% of the
Assumed Balance (calculated
for this purpose solely as if there were no
adjustment for any Senior Termination Date
of Loan Group 1)
(1)
(2)
1
C-1 (Excess of Loan
Group 1)
(1)
(2)
1
1
<PAGE>
A-2 (0.9% of the
Assumed Balance (calculated
for this purpose solely as if there were no
adjustment for any Senior Termination Date
of Loan Group 2)
(1)
(2)
2
B-2 (0.1% of the
Assumed Balance (calculated
for this purpose solely as if there were no
adjustment for any Senior Termination Date
of Loan Group 2)
(1)
(2)
2
C-2 (Excess of Loan
Group 2)
(1)
(2)
2
A-3 (0.9% of the
Assumed Balance (calculated
for this purpose solely as if there were no
adjustment for any Senior Termination Date
of Loan Group 3)
(1)
(2)
3
B-3 (0.1% of the
Assumed Balance (calculated
for this purpose solely as if there were no
adjustment for any Senior Termination Date
of Loan Group 3)
(1)
(2)
3
C-3 (Excess of Loan
Group 3)
(1)
(2)
3
C-4 (Excess of Loan
Group 4)
(1)
(2)
4
1-I-P
$100
(3)
N/A
1-II-P
$100
(3)
N/A
1-$100
$100
(4)
N/A
R-1
(5)
(5)
N/A
</TABLE>
---------------
(1) Each Class A Interest will have a principal balance initially
equal to
0.9% of the Assumed Balance (calculated for this purpose solely as
if there
were no adjustment for any Senior Termination Date of its
corresponding Loan
Group. Each Class B Interest will have a principal balance
initially equal to
0.1% of the the Assumed Balance (calculated for this purpose solely
as if there
were no adjustment for any Senior Termination Date of its
corresponding Loan
Group. The initial principal balance of each Class C Interest will
equal the
excess of the initial aggregate principal balance of its
corresponding Loan
Group over the initial aggregate principal balances of the Class A
and Class B
Interests (and of the Class 1-$100 Interest, in the case of the
Class C-1
Interest) corresponding to such Loan Group. On the Closing Date and
on each
Distribution Date, the Class C-4 Interest will have a principal
balance equal
to the aggregate principal balance of Loan Group 4 treating the
Cut-off Date as
the related Due Date for purposes of determining the Closing Date
Principal
Balance.
(2) The Weighted Average Adjusted Net Mortgage Rate of the
corresponding Loan
Group.
(3) The Class 1-I-P and Class 1-II-P Interests will not bear
interest. The
Class 1-I-P Interests will be entitled to 100% of Prepayment
Charges paid on
the Mortgage Loans in Aggregate Group I. The Class 1-II-P Interests
will be
entitled to 100% of any Prepayment Charges paid on the Mortgage
Loans in
Aggregate Group II.
(4) The Weighted Average Adjusted Net Mortgage Rate of the Mortgage
Loans in
Loan Group 1.
(5) The Class R-1 Interest is the sole class of residual interest
in REMIC 1.
It has no principal balance and pays no principal or interest.
2
<PAGE>
On
each Distribution Date, the Available Funds shall be distributed
with
respect to the REMIC 1 Interests in the following manner:
(1) Interest is to be distributed with respect to each REMIC 1
Interest
according to the formulas described above;
(2) Principal Amounts and Realized Losses will be allocated to make
the Class
1-I-P, the Class 1-II-P and Class 1-$100 balance equal to the
principal
balances of the Class I-P, Class II-P and Class A-R
Certificates,
respectively, for such Distribution Date.
(3) If Cross-Over Situation does not exist with respect to any
Class of
Interests, then Principal Amounts and Realized Losses arising with
respect to
each Loan Group (other than Loan Group 4) will be allocated: first
to cause the
Loan Group's corresponding Class A and Class B, if any, to equal,
respectively,
0.9% of the Assumed Balance (calculated for this purpose solely as
if there
were no adjustment for any Senior Termination Date) and 0.1% of the
Assumed
Balance (calculated for this purpose solely as if there were no
adjustment for
any Senior Termination Date); and second to the Loan Group's
corresponding Class
C Interest;
(4) If a Cross-Over Situation exists with respect to the Class A
and Class B
Interests then:
(a)
if the Calculation Rate in respect of the outstanding Class A
and
Class B Interests is less than the Pass-Through Rate in respect of
the
Group I Subordinated Certificates, Principal Relocation Payments
will be
made
proportionately to the outstanding Class A Interests prior to
any
other distributions of principal from each such Loan Group; and
(b)
if the Calculation Rate in respect of the outstanding Class A
and
Class B Interests is greater than the Pass-Through Rate in respect
of the
Group I Subordinated Certificates, Principal Relocation Payments
will be
made
proportionately to the outstanding Class B Interests prior to
any
other distributions of principal from each such Loan Group.
In case of either (a) or (b), Principal Relocation Payments will be
made so as
to cause the Calculation Rate in respect of the outstanding Class A
and Class
B Interests to equal the Pass-Through Rate in respect of the Group
I
Subordinated Certificates. With respect to each Loan Group (other
than Loan
Group 4), if (and to the extent that) the sum of (a) the principal
payments
comprising the Principal Amount received during the Due Period and
(b) the
Realized Losses on the Mortgage Loans in that Loan Group, are
insufficient to
make the necessary reductions of principal on the Class A and Class
B
Interests, then interest will be added to the Loan Group's other
REMIC 1
Interests that are not receiving Principal Relocation Payments, in
proportion
to their principal balances.
(c)
Unless otherwise required to achieve the Calculation Rate, the
outstanding aggregate Class A and Class B Interests for all Loan
Groups
will
not be reduced below 1% of the excess of (i) the aggregate
Stated
Principal Balances of the Mortgage Loans in Aggregate loan Group I
as of
the
end of any Due Period (reduced by any Principal Prepayments
received
after the Due Period that are to be distributed on the Distribution
Date
related to the Due Period) over (ii) the aggregate Class
Certificate
Balance of the Senior Certificates (excluding the Class A-R
Certificates)
for
all Certificate Groups related to Aggregate Loan Group I as of
the
related Distribution Date (after taking into account distributions
of
principal on such Distribution Date).
If (and to the extent that) the limitation in paragraph (c)
prevents the
distribution of principal to the Class A and Class B Interests of a
Loan
Group, and if the Loan Group's Class C Interest has already been
reduced to
zero, then the excess principal from that Loan Group will be paid
to the Class
C Interests of
3
<PAGE>
the other Loan Group, the aggregate Class A and Class B Interests
of which are
less than 1% of the Assumed Balance (calculated for this purpose
solely as if
there were no adjustment for any Senior Termination Date). If the
Mortgage Loans
in the Loan Group of the Class C Interest that receives such
payment has a
Weighted Average Adjusted Net Mortgage Rate below the Weighted
Average Adjusted
Net Mortgage Rate of the Loan Group making the payment, then the
payment will
be treated by the REMIC 1 as a Realized Loss. Conversely, if the
Loan Group of
the Class C Interest that receives such payment has a Weighted
Average Adjusted
Net Mortgage Rate above the Weighted Average Adjusted Net Mortgage
Rate of the
Loan Group making the payment, then the payment will be treated by
the REMIC 1
as a reimbursement for prior Realized Losses.
REMIC 2
The
REMIC 2 Regular Interests will have the initial principal
balance,
Pass-Through Rates and corresponding Loan Groups as set forth in
the following
table:
<TABLE>
<CAPTION>
Initial Principal
Pass-Through
Corresponding Class of
REMIC 2 Interests
Balance
Rate
Certificates
-----------------
-------
----
------------
<S>
<C>
<C>
<C>
Class 2-1-A-1
(1)
Variable(2)
Class 1-A-1
Class 2-1-A-2-1
(1)
Variable(2)
Class 1-A-2-1
Class 2-1-A-2-2
(1)
Variable(3)
Class 1-A-2-2
Class 2-2-A-1-1
(1)
Variable(3)
Class 2-A-1-1
Class 2-2-A-1-2
(1)
Variable(3)
Class 2-A-1-2
Class 2-2-A-2-1
(1)
Variable(4)
Class 2-A-2-1, 2-A-2-X
Class 2-3-A-1
(1)
Variable(4)
Class 3-A-1
Class 2-3-A-2
(1)
Variable(4)
Class 3-A-2
Class 2-4-A-1
(1)
Variable(5)
Class 4-A-1, 4-A-X
Class 2-4-A-2
(1)
Variable(5)
Class 4-A-2, 4-A-X
Class
2-I-B-1
(1)
Variable(6)
Class I-B-1
Class 2-I-B-2
(1)
Variable(6)
Class I-B-2
Class 2-I-B-3
(1)
Variable(6)
Class I-B-3
Class 2-I-B-4
(1)
Variable(6)
Class I-B-4
Class 2-I-B-5
(1)
Variable(6)
Class I-B-5
Class 2-I-B-6
(1)
Variable(6)
Class I-B-6
Class 2-$100
(1)
(2)
Class A-R
Class 2-II-B-1
(1)
Variable(5)
Class II-B-1
Class 2-II-B-2
(1)
Variable(5)
Class II-B-2
Class 2-II-B-3
(1)
Variable(5)
Class II-B-3
Class 2-II-B-4
(1)
Variable(5)
Class II-B-4
Class 2-II-B-5
(1)
Variable(5)
Class II-B-5
Class 2-II-B-6
(1)
Variable(5)
Class II-B-6
Class 2-I-P
$100
(7)
Class I-P
Class 2-II-P
$100
(7)
Class II-P
Class R-2
(8)
(8)
N/A
</TABLE>
(1) On each Distribution Date, Realized Losses and payments of
principal will
be allocated to each REMIC 2 Regular Interest in the same amounts
as they are
allocated to their Corresponding Class of Certificates (other than
any Class
of Notional Amount Certificates, if applicable).
4
<PAGE>
(2) These Interests will bear interest during each Interest Accrual
Period for
any Distribution Date at a per annum rate equal to the Weighted
Average
Adjusted Net Mortgage Rate of the Group 1 Mortgage Loans as of
that
Distribution Date.
(3) These Interests will bear interest during each Interest Accrual
Period for
any Distribution Date at a per annum rate equal the Weighted
Average Adjusted
Net Mortgage Rate of the Group 2 Mortgage Loans as of that
Distribution Date.
(4) These Interests will bear interest during each Interest Accrual
Period for
any Distribution Date at a per annum rate equal the Weighted
Average Adjusted
Net Mortgage Rate of the Group 3 Mortgage Loans as of that
Distribution Date.
(5) These Interests will bear interest during each Interest Accrual
Period for
any Distribution Date at a per annum rate equal the Weighted
Average Adjusted
Net Mortgage Rate of the Group 4 Mortgage Loans as of that
Distribution Date.
(6) The Pass-Through Rate for each such Class for each Interest
Accrual Period
for any Distribution Date will be a per annum rate equal to the
Calculation
Rate.
(7) The Class 2-I-P and Class 2-II-P Interests will not bear
interest. The
Class 2-I-P Interests will be entitled to 100% of any Prepayment
Charges paid
on the Mortgage Loans in Aggregate Loan Group I. The Class 2-II-P
Interests
will be entitled to 100% of any Prepayment Charges paid on the
Mortgage Loans
in Aggregate Loan Group II.
(8) The Class R-2 Interest is the sole class of residual interest
in REMIC 2.
It has no principal balance and pays no principal or interest.
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>
======================= ========================
===================== ====================
========================
Initial Class
Pass-Through
Minimum
Integral Multiples in
Class Designation
Certificate Balance
Rate
Denomination
Excess of Minimum
----------------------- ------------------------
--------------------- --------------------
------------------------
<S>
<C>
<C>
<C>
<C>
Class 1-A-1
$96,888,000 Variable(1)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 1-A-2-1
$30,532,000 Variable(1)
$
25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 1-A-2-2
$1,405,000 Variable(1)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 2-A-1-1
$84,758,000 Variable(2)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 2-A-1-2
$3,901,000 Variable(2)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 2-A-2-1
$29,322,000 Variable(3)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 2-A-2-X
(4)
0.28764% (5)
$ 25,000(6)
$1,000(6)
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 3-A-1
$66,651,000 Variable(7)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 3-A-2
$5,000,000 Variable(7)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 4-A-1
$145,552,000 Variable(8)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 4-A-2
$26,734,000 Variable(8)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class 4-A-X
(9)
0.16520% (10)
$
25,000(6)
$1,000(6)
----------------------- ------------------------
--------------------- --------------------
------------------------
Class A-R
$100
Variable (1)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class I-B-1
$5,164,000
Variable(11)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class I-B-2
$3,331,000
Variable(11)
$ 25,000
$1,000
======================= ========================
===================== ====================
========================
5
<PAGE>
======================= ========================
===================== ====================
========================
Class I-B-3
$2,165,000
Variable(11)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-B-1
$4,827,000
Variable(12)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-B-2
$3,063,000
Variable(12)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-B-3
$1,949,000
Variable(12) $
25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class I-P
$100
(13)
$ 25,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-P
$100
(13)
$
100
N/A
----------------------- ------------------------
--------------------- --------------------
------------------------
Class I-B-4
$2,498,000
Variable(11)
$
100,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class I-B-5
$833,000
Variable(11)
$
100,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class I-B-6
$666,704
Variable(11)
$
100,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-B-4
$1,857,000
Variable(12)
$
100,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-B-5
$1,021,000
Variable(12)
$
100,000
$1,000
----------------------- ------------------------
--------------------- --------------------
------------------------
Class II-B-6
$650,419
Variable(12)
$
100,000
$1,000
======================= ========================
===================== ====================
========================
</TABLE>
(1) The Pass-Through Rate for the Class 1-A-1, Class 1-A-2-1, Class
1-A-2-2
and Class A-R Certificates for the Interest Accrual Period related
to each
Distribution Date will equal the Weighted Average Net Mortgage Rate
of the
Group 1 Mortgage Loans. The Pass-Through Rate for the Class 1-A-1,
Class
1-A-2-1, Class 1-A-2-2 and Class A-R Certificates for the Interest
Accrual
Period related to the first Distribution Date is 5.85968% per
annum.
(2) The Pass-Through Rate for the Class 2-A-1-1 and Class 2-A-1-2
Certificates
for the Interest Accrual Period related to each Distribution Date
will equal
the Weighted Average Net Mortgage Rate of the Group 2 Mortgage
Loans. The
Pass-Through Rate for the Class 2-A-1-1 and Class 2-A-1-2
Certificates for the
Interest Accrual Period related to the first Distribution Date is
5.82764% per
annum.
(3) The Pass-Through Rate for the Class 2-A-2-1 Certificates for
the Interest
Accrual Period related to each Distribution Date will equal the
Weighted
Average Net Mortgage Rate of the Group 2 Mortgage Loans minus the
Pass-Through
Rate for the Class 2-A-2-X Certificates for that Interest Accrual
Period. The
Pass-Through Rate for the Class 2-A-2-1 Certificates for the
Interest Accrual
Period related to the first Distribution Date is 5.54000% per
annum.
(4) The Class 2-A-2-X Certificates will be Notional Amount
Certificates, will
have no Class Certificate Balance, will pay no principal and will
be entitled
to distributions of interest on its Notional Amount (initially
$29,322,000).
(5) The Pass-Through Rate for the Class 2-A-2-X Certificates for
the Interest
Accrual Period related to any Distribution Date (x) up to and
including the
Distribution Date in November 2011, will be 0.28764% per annum, and
(y) any
Distribution Date thereafter, will be 0.00% per annum.
(6) Minimum denomination is based on the Notional Amount of the
Class.
(7) The Pass-Through Rate for the Class 3-A-1 and Class 3-A-2
Certificates for
the Interest Accrual Period related to each Distribution Date will
equal the
Weighted Average Net Mortgage Rate of the Group 3 Mortgage Loans.
The
Pass-Through Rate for the Class 3-A-1 and Class 3-A-2 Certificates
for the
Interest Accrual Period related to the first Distribution Date is
5.83307% per
annum.
(8) The Pass-Through Rate for the Class 4-A-1 and Class 4-A-2
Certificates for
the Interest Accrual Period related to each Distribution Date will
equal the
Weighted Average Net Mortgage Rate of the Group 4 Mortgage Loans
minus the
Pass-Through Rate for the Class 4-A-X Certificates for that
Interest Accrual
Period. The Pass-Through Rate for the Class 4-A-1 and Class 4-A-2
Certificates
for the Interest Accrual Period related to the first Distribution
Date is
6.00000% per annum.
6
<PAGE>
(9) The Class 4-A-X Certificates will be Notional Amount
Certificates, will
have no Class Certificate Balance, will pay no principal and will
be entitled
to distributions of interest on its Notional Amount (initially
$172,286,000).
(10) The Pass-Through Rate for the Class 4-A-X Certificates for the
Interest
Accrual Period related to any Distribution Date (x) up to and
including the
Distribution Date in November 2016, will be 0.16520% per annum, and
(y) any
Distribution Date thereafter, 0.00% per annum.
(11) The Pass-Through Rate for a Class of Group I Subordinated
Certificates for
the Interest Accrual Period related to any Distribution Date will
be a per
annum rate equal to the sum of the following for each Loan Group in
Aggregate
Loan Group I: the product of (x) the Weighted Average Adjusted Net
Mortgage
Rate of the related Mortgage Loans, weighted on the basis of their
Stated
Principal Balance as of the first day of as of the first day of the
related Due
Period (after giving effect to Principal Prepayments received in
the Prepayment
Period ending during that Due Period) and (y) a fraction the
numerator of which
is the related Assumed Balance (calculated for this purpose solely
as if there
were no adjustment for any Senior Termination Date) immediately
prior to that
Distribution Date, and the denominator of which is the aggregate
Class
Certificate Balance of the Group I Subordinated Certificates
immediately prior
to that Distribution Date. The Pass-Through Rate for each Class of
Group I
Subordinated Certificates for the Interest Accrual Period related
to the first
Distribution Date is 5.84182% per annum.
(12) The Pass-Through Rate for a Class of Group II Subordinated
Certificates
for the Interest Accrual Period related to any Distribution Date
will be a per
annum rate equal to the Weighted Average Adjusted Net Mortgage Rate
of the
Mortgage Loans in Loan Group 4. The Pass-Through Rate for each
class of Group
II Subordinated Certificates for the Interest Accrual Period
related to the
first Distribution Date is 6.16520% per annum.
(13) The Class I-P and Class II-P Certificates will not be entitled
to any
interest, but will be entitled to 100% of any Prepayment Charges
collected on
the Mortgage Loans in Aggregate Loan Group I and Aggregate Loan
Group II,
respectively. All amounts in respect of waived Prepayment Charges
paid by the
Servicer to the Class I-P and Class II-P Certificates, as
applicable, pursuant
to the second paragraph of Section 3.20 will be treated as paid
directly by
the Servicer to the Class I-P and Class II-P Certificates, as
applicable, and
not as paid by or through any REMIC created under this
Agreement.
The
foregoing REMIC structure is intended to cause all of the cash
from
the Mortgage Loans to flow through to the Master REMIC as cash flow
on a REMIC
regular interest, without creating any shortfall--actual or
potential (other
than for credit losses) to any REMIC regular interest.
For
any purpose for which the Pass-Through Rates is calculated, the
interest rate on the Mortgage Loans shall be appropriately adjusted
to account
for the difference between the monthly day count convention of the
Mortgage
Loans and the monthly day count convention of the regular interests
issued by
each of the REMICs. For purposes of calculating the Pass-Through
Rates for
each of the interests issued by REMIC 1 and the Master REMIC such
rates shall
be adjusted to equal a monthly day count convention based on a 30
day month
for each Due Period and a 360-day year so that the Mortgage Loans
and all
regular interests will be using the same monthly day count
convention.
Set forth below are designations of Classes of Certificates to the
categories
used in this Agreement:
<TABLE>
<CAPTION>
<S>
<C>
Accretion Directed Certificates..........................
None.
Accrual Certificates.....................................
None.
7
<PAGE>
Book-Entry Certificates..................................
All
Classes of Certificates other than the Physical
Certificates.
Class P Certificates.....................................
Class I-P and Class II-P Certificates.
COFI Certificates........................................
None.
Components...............................................
None.
Component Certificates...................................
None.
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 ERISA-Qualifying
Underwriting; and Certificates of any Class that
also does not have or no longer has a rating of
BBB- or its equivalent, or better, from at least
one Rating Agency.
Group I Certificates.....................................
The
Group 1, Group 2 and Group 3 Senior
Certificates and Group I Subordinated Certificates.
Group II Certificates....................................
The
Group 4 Senior Certificates and Group II
Subordinated Certificates.
Group I Subordinated Certificates........................
Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4,
Class I-B-5 and Class I-B-6 Certificates.
Group II Subordinated Certificates.......................
Class II-B-1, Class II-B-2, Class II-B-3, Class
II-B-4, Class II-B-5 and Class II-B-6 Certificates.
Group 1 Senior Certificates..............................
Class 1-A-1, Class 1-A-2-1, Class 1-A-2-2 and Class
A-R Certificates.
Group 2 Senior Certificates..............................
Class 2-A-1-1, Class 2-A-1-2, Class 2-A-2-1 and
Class 2-A-2-X Certificates.
Group 3 Senior Certificates..............................
Class 3-A-1 and Class 3-A-2 Certificates.
Group 4 Senior Certificates..............................
Class 4-A-1, Class 4-A-2 and Class 4-A-X
Certificates.
LIBOR Certificates.......................................
None.
Non-Delay Certificates...................................
LIBOR Certificates.
8
<PAGE>
Notional Amount Certificates.............................
Class 2-A-2-X and Class 4-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..............................
None.
Private Certificates.....................................
Class I-P, Class II-P, Class I-B-4, Class I-B-5,
Class I-B-6, Class II-B-4, Class II-B-5 and Class
II-B-6 Certificates.
Rating Agencies..........................................
Moody's and S&P.
Regular Certificates.....................................
All
Classes of Certificates other than the Class
A-R Certificates.
Residual Certificate.....................................
Class A-R Certificates.
Retained Certificates....................................
None.
Senior Certificates......................................
Class 1-A-1, Class 1-A-2-1, Class 1-A-2-2, Class
2-A-1-1, Class 2-A-1-2, Class 2-A-2-1, Class
2-A-2-X, Class 3-A-1, Class 3-A-2, Class 4-A-1,
Class 4-A-2, Class 4-A-X and Class A-R
Certificates.
Subordinated Certificates................................
Class I-B-1, Class I-B-2, Class I-B-3, Class I-B-4,
Class I-B-5, Class I-B-6, Class II-B-1, Class
II-B-2, Class II-B-3, Class II-B-4, Class II-B-5
and Class II-B-6 Certificates.
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 this Agreement relating
to
statistical rating agencies not designated above as Rating Agencies
shall be
of no force or effect.
9
<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: Not applicable.
Accrual Amount: Not applicable.
Accrual Certificates: As specified in the Preliminary
Statement.
Accrual Termination Date: Not applicable.
Additional Designated Information: As defined in Section 11.02.
Adjusted Mortgage Rate: As to each Mortgage Loan and at any time,
the per
annum rate equal to the Mortgage Rate less the Servicing Fee
Rate.
Adjusted Net Mortgage Rate: As to each Mortgage Loan and any
Distribution
Date, the per annum rate equal to the Mortgage Rate of that
Mortgage Loan (as
of the Due Date in the month preceding the month in which such
Distribution
Date occurs) less the Expense Fee Rate for that Mortgage Loan.
Adjustment Date: A date specified in each Mortgage Note as a date
on
which the Mortgage Rate on the related Mortgage Loan is subject to
adjustment.
Advance: As to a Loan Group, the payment required to be made by
the
Servicer with respect to any Distribution Date pursuant to Section
4.01, the
amount of any such payment being equal to the aggregate of payments
of
principal and interest (net of the Servicing Fee) on the Mortgage
Loans in
such Loan Group that were due during the related Due Period and not
received
as of the close of business on the related Determination Date,
together with
an amount equivalent to interest on each REO Property, net of any
net income
from such REO Property, less the aggregate amount of any such
delinquent
payments that the Servicer has determined would constitute a
Nonrecoverable
Advance if advanced.
Advance Notice: As defined in Section 4.01(b).
Advance Deficiency: As defined in Section 4.01(b).
Affiliate: With respect to any Person, any other Person
controlling,
controlled or under common control with such Person. For purposes
of this
definition, "control" means the power to direct the management and
policies of
a Person, directly or indirectly, whether through ownership of
voting
securities, by contract, or otherwise and "controlling" and
"controlled" shall
have meanings correlative to the foregoing. Affiliates also include
any
entities consolidated with the requirements of generally accepted
accounting
principles.
Aggregate Group I Subordinated Percentage: With respect to any
Distribution Date and the Group I Subordinated Certificates, the
fraction
(expressed as a percentage) the numerator of which is the
10
<PAGE>
aggregate Class Certificate Balance of the Group I Subordinated
Certificates
immediately prior to such Distribution Date and the denominator of
which is
the aggregate Stated Principal Balance of the Mortgage Loans in
Aggregate Loan
Group I immediately prior to such Distribution Date.
Aggregate Loan Group: Either Aggregate Loan Group I or Aggregate
Loan
Group II, as applicable.
Aggregate Loan Group I: Collectively, Loan Group 1, Loan Group 2
and Loan
Group 3.
Aggregate Loan Group II: Loan Group 4.
Agreement: This Pooling and Servicing Agreement and all amendments
and
supplements.
Allocable Share: As to any Distribution Date and Class of
Certificates,
the ratio that the amount calculated with respect to such
Distribution Date
(A) with respect to the Senior Certificates of the related Senior
Certificate
Group and the Group II Subordinated Certificates, 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)) and (B)
with respect to the Group I Subordinated Certificates, pursuant to
the
definition of Assumed Interest Amount or after the second Senior
Termination
Date 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 amount calculated with
respect to
such Distribution Date for each Class of Certificates 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)) or
the definition of Assumed Interest Amount for such Loan Group and
Class, as
applicable.
Amount Available for Senior Principal: As to any Distribution Date
and
Loan Group, the related 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
related
Senior Certificates pursuant to Section 4.02(a)(1)(i), Section
4.02(a)(2)(i),
Section 4.02(a)(3)(i) and Section 4.02(a)(4)(i).
Amount Held for Future Distribution: As to any Distribution Date
and the
Mortgage Loans in a Loan Group, 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 relating
to the Mortgage Loans in such Loan Group received in the month of
such
Distribution Date and (ii) all Scheduled Payments relating to the
Mortgage
Loans in that Loan Group 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; (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.
Assumed Balance: With respect to any Distribution Date, Class of
Group I
Subordinated Certificates and Loan Group in Aggregate Loan Group I,
each such
Class' pro rata interest (based on its respective Class Certificate
Balance)
in such Loan Group equal to the product of the Group I
11
<PAGE>
Subordinated Percentage for such Loan Group as of such Distribution
Date and
the aggregate Stated Principal Balance of each Mortgage Loan in
such Loan
Group as of the Due Date occurring in the month preceding the month
of such
Distribution Date (after giving effect to Principal Prepayments
received in
the Prepayment Period related to such prior Due Date).
Assumed Interest Amount: With respect to any Distribution Date, any
Class
of Group I Subordinated Certificates and any Loan Group in
Aggregate Loan
Group I, one month's interest accrued during the related Interest
Accrual
Period at the Pass-Through Rate on the related Assumed Balance
immediately
prior to that Distribution Date.
Available Funds: As to any Distribution Date and the Mortgage Loans
in a
Loan Group, 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 with respect to the Mortgage Loans in
that Loan
Group, 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) - (iii), inclusive, of Section 3.09(b), (b) the amount
of the
related Advance, (c) in connection with Defective Mortgage Loans in
such Loan
Group, as applicable, the aggregate of the Purchase Prices and
Substitution
Adjustment Amounts deposited on the related Distribution Account
Deposit Date,
and (d) any amount deposited on the related Distribution Account
Deposit Date
pursuant to Section 3.10. The Holders of the Class P Certificates
will be
entitled to all Prepayment Charges received on the Mortgage Loans
and such
amounts will not be available for distribution to the Holders of
any other
Class of Certificates.
Bankruptcy Code: The United States Bankruptcy Reform Act of 1978,
as
amended.
Bankruptcy Coverage Termination Date: As to either Certificate
Group, the
point in time at which the related 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: The Group I Bankruptcy Loss
Coverage
Amount or the Group II Bankruptcy Loss Coverage Amount.
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.
12
<PAGE>
Calculation Rate: For each Distribution Date, the product of (i) 10
and
(ii) the weighted average pass-through rate of the outstanding
Class A and
Class B Interests, treating each of the Class A Interests as having
an
Interest Rate of 0.00%.
Cap
Counterparty: Not applicable.
Certificate: Any one of the certificates issued by the Trust Fund
and
executed by the Trustee in substantially the forms attached as
exhibits.
Certificate Account: The separate Eligible Account or Accounts
created
and maintained by the Servicer pursuant to Section 3.06(d) with a
depository
institution in the name of the Servicer for the benefit of the
Trustee on
behalf of Certificateholders and designated "IndyMac Bank, F.S.B.,
in trust
for the registered holders of IndyMac INDX Mortgage Loan Trust
2006-AR33,
Mortgage Pass-Through Certificates, Series 2006-AR33."
Certificate Balance: With respect to any Certificate (other than
a
Notional Amount Certificate) 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 on the Mortgage
Loans in a
Loan Group, (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 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
have no
Certificate Balances.
Certificate Group: Any of the Group 1 Certificates, Group 2
Certificates,
Group 3 Certificates, Group 4 Certificates, Group I Certificates
and Group II
Certificates, as the context requires.
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.
13
<PAGE>
Certification Party: As defined in Section 11.05.
Certifying Person: As defined in Section 11.05.
Class: All Certificates bearing the same class designation as
set
forth in the Preliminary Statement.
Class A Interest: Each of the Class A-1, Class A-2 and Class
A-3
Interests.
Class B Interest: Each of the Class B-1, Class B-2 and Class
B-3
Interests.
Class C Interest: Each of the Class C-1, Class C-2, Class C-3 and
Class
C-4 Interests.
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.
Class Subordination Percentage: With respect to any Distribution
Date and
each Class of Subordinated Certificates in a Subordinated
Certificates Group,
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 in the
same
Certificate Group 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 29, 2006.
CMT
Index: Not applicable.
Code: The Internal Revenue Code of 1986, including any successor
or
amendatory provisions.
COFI: Not applicable.
COFI
Certificates: Not applicable.
Commission: The United States Securities and Exchange
Commission.
14
<PAGE>
Compensating Interest: For any Distribution Date and Aggregate
Loan
Group, 0.125% multiplied by one-twelfth multiplied by the aggregate
Stated
Principal Balance of the Mortgage Loans in such Aggregate Loan
Group as of the
first day of the prior month.
Components: Not applicable.
Co-op Shares: Shares issued by a Cooperative Corporation.
Cooperative Corporation: The entity that holds title (fee or an
acceptable leasehold estate) to the real property and
improvements
constituting the Cooperative Property and that governs the
Cooperative
Property, which Cooperative Corporation must qualify as a
Cooperative Housing
Corporation under section 216 of the Code.
Cooperative Loan: Any Mortgage Loan secured by Co-op Shares and
a
Proprietary Lease.
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: Trust Administration-IN06AX
(IndyMac MBS,
Inc., IndyMac INDX Mortgage Loan Trust 2006-AR33, Mortgage
Pass-Through
Certificates, Series 2006-AR33), and which is the address to which
notices to
and correspondence with the Trustee should be directed. The office
of the
Certificate Registrar for purposes of presentment of certificates
for
registration of transfer, exchange or final payment is located at
DB Services
Tennessee, 648 Grassmere Park Road, Nashville, Tennessee
37211-3658,
Attention: Transfer Unit.
Cross-over Situation: For any Distribution Date and for any Loan
Group in
Aggregate Loan Group I (after taking into account principal
distributions on
such Distribution Date) a Cross-Over Situation exists with respect
to the
Class A and Class B Interests of the Loan Group if such Interests
in the
aggregate are less than 1% of the Assumed Balance of the related
Loan Group.
Cut-off Date: November 1, 2006.
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
15
<PAGE>
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 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 in each Loan Group, not
later
than the Closing Date, and
(B)
for the remaining 30% of the Mortgage Loans in each Loan Group,
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.
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
16
<PAGE>
Days before the related Distribution Date, then the Determination
Date shall be
the Business Day preceding the 18th day of the month.
Distribution Account: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 3.06(e) in the name
of the
Trustee for the benefit of the Certificateholders and designated
"Deutsche
Bank National Trust Company in trust for registered holders of
IndyMac INDX
Mortgage Loan Trust 2006-AR33, Mortgage Pass-Through Certificates,
Series
2006-AR33." Funds in the Distribution Account shall be held in
trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:30
P.M. Pacific time on the Business Day preceding the Distribution
Date.
Distribution Date: The 25th day of each calendar month after the
initial
issuance of the Certificates, or if that day is not a Business Day,
the next
Business Day, commencing in 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.
17
<PAGE>
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that meets the requirements of
the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
Escrow Account: The Eligible Account or Accounts established
and
maintained pursuant to Section 3.07(a).
Event of Default: As defined in Section 7.01.
Excess 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-AR33,
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.
18
<PAGE>
Form
10-D Disclosure Item: With respect to any Person, any material
litigation or governmental proceedings pending against such Person,
or against
any of the Trust Fund, the Depositor, the Trustee or the Servicer,
if such
Person has actual knowledge thereof.
Form
10-K Disclosure Item: With respect to any Person, (a) Form 20-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: The Group I Fraud Loss Coverage Amount
or the
Group II Fraud Loss Coverage Amount.
Fraud Loss Coverage
Termination Date: As to either Aggregate Loan Group,
the point in time at which the related 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.
Gross Margin: With respect to each Mortgage Loan, the fixed
percentage
set forth in the related Mortgage Note that is added to the
Mortgage Index on
each Adjustment Date in accordance with the terms of the related
Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
Group 1 Certificates: As specified in the Preliminary
Statement.
Group 1 Mortgage Loan: Any Mortgage Loan in Loan Group 1.
Group 1 Senior Certificates: As specified in the Preliminary
Statement.
Group 2 Certificates: As specified in the Preliminary
Statement.
Group 2 Mortgage Loan: Any Mortgage Loan in Loan Group 2.
Group 2 Senior Certificates: As specified in the Preliminary
Statement.
Group 3 Certificates: As specified in the Preliminary
Statement.
Group 3 Mortgage Loan: Any Mortgage Loan in Loan Group 3.
Group 3 Senior Certificates: As specified in the Preliminary
Statement.
Group 4 Certificates: As specified in the Preliminary
Statement.
Group 4 Mortgage Loan: Any Mortgage Loan in Loan Group 4.
Group 4 Senior Certificates: As specified in the Preliminary
Statement.
Group I Bankruptcy Loss Coverage Amount: As of any date of
determination,
the Group I Bankruptcy Loss Coverage Amount shall equal the Initial
Group I
Bankruptcy Loss Coverage Amount as reduced by (i) the aggregate
amount of
Bankruptcy Losses allocated to the Group I Certificates since the
Cut-off Date
and (ii) any permissible reductions in the Group I Bankruptcy Loss
Coverage
Amount as
19
<PAGE>
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.
Group I Certificates: As specified in the Preliminary
Statement.
Group I Fraud Loss Coverage Amount: As of the Closing Date,
$3,331,148,
subject to reduction from time to time, by the amount of Fraud
Losses
allocated to the Group I Certificates. In addition, on each
anniversary of the
Cut-off Date, the Group I 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) 2.00% of the
then
current Stated Principal Balance of the Mortgage Loans in the case
of the
first such anniversary and 1.00% of the then-current Stated
Principal Balance
of the Mortgage Loans in Aggregate Loan Group I in the case of the
second,
third and fourth such anniversaries and (ii) the excess of the
Group I Fraud
Loss Coverage Amount as of the preceding anniversary of the Cut-off
Date over
the cumulative amount of Fraud Losses allocated to the Group I
Certificates
since such preceding anniversary; and (b) on the fifth anniversary
of the
Cut-off Date, to zero.
Group I 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:
Class I-B-1..................................
4.40%
Class I-B-2..................................
2.85%
Class I-B-3..................................
1.85%
Class I-B-4..................................
1.20%
Class I-B-5..................................
0.45%
Class I-B-6..................................
0.20%
Group I Original Subordinated Principal Balance: On or prior to
the
second Senior Termination Date, the Subordinated Percentage of the
aggregate
Stated Principal Balance of the Mortgage Loans in the related Loan
Group, in
each case as of the Cut-off Date; or if such date is after the
second Senior
Termination Date, the aggregate Class Certificate Balance of the
Group I
Subordinated Certificates as of the Closing Date.
Group I Senior Certificates: As specified in the Preliminary
Statement.
Group I Senior Percentage: As to any Senior Certificate Group of
Group I
Senior Certificates and any Distribution Date is the percentage
equivalent of
a fraction, the numerator of which is the aggregate Class
Certificate Balance
of the Senior Certificates of such Senior Certificate Group
immediately before
the Distribution Date and the denominator of which is the aggregate
Stated
Principal Balance of each Mortgage Loan in the related Loan Group
as of the
Due Date occurring in the month prior to the month of that
Distribution Date
(after giving effect to Principal Prepayments in the Prepayment
Period related
to that Due Date); provided, however, that on any Distribution Date
after the
second Senior Termination Date for the Group I Certificates, the
Group I
Senior Percentage of the remaining Senior Certificate Group of
Group I Senior
Certificates is the percentage equivalent of a fraction, the
numerator of
which is the aggregate Class Certificate Balance of the Group I
Senior
Certificates of such remaining Senior Certificate Group immediately
prior to
such date and the denominator of which is the aggregate Class
Certificate
Balance of all Classes of Group I Certificates immediately prior to
such
Distribution Date.
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<PAGE>
Group I Special Hazard Loss Coverage Amount: With respect to the
first
Distribution Date, $8,932,250. 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 in
Aggregate Loan
Group I, (ii) twice the principal balance of the largest Mortgage
Loan in
Aggregate Loan Group I and (iii) the aggregate of the principal
balances of
all Mortgage Loans in Aggregate Loan Group I 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
Group I
Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if
any, of Special Hazard Losses allocated to the Group I 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 in Aggregate Loan Group I then due, whether or not
paid.
Group I Special Hazard Coverage Termination Date: The point in time
at
which the Group I Special Hazard Loss Coverage Amount is reduced to
zero.
Group I Subordinated Certificates: As specified in the
Preliminary
Statement.
Group I Subordinated Percentage: With respect to any Distribution
Date
and the Group I Subordinated Certificates, the difference between
100% and the
Group I Senior Percentage of the Senior Certificate Group relating
to that
Loan Group on such Distribution Date. After the second Senior
Termination Date
the Group I Subordinated Percentage will be calculated as the
difference
between 100% and the Group I Senior Percentage for such
Distribution Date.
Group II Bankruptcy Loss Coverage Amount: As of any date of
determination, shall equal the Initial Group II Bankruptcy Loss
Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated
to the Group II Certificates since the Cut-off Date and (ii) any
permissible
reductions in the Group II 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.
Group II Certificates: As specified in the Preliminary
Statement.
Group II Fraud Loss Coverage Amount: As of the Closing Date,
$3,713,068,
subject to reduction from time to time, by the amount of Fraud
Losses
allocated to the Group II Certificates. In addition, on each
anniversary of
the Cut-off Date, the Group II Fraud Loss Coverage Amount shall 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) 2.00% of the
then
current Stated Principal Balance of the Mortgage Loans in Aggregate
Loan Group
II in the case of the first such anniversary and 1.00% of the
then-current
Stated Principal Balance of the Mortgage Loans in Aggregate Loan
Group II in
the case of the second, third and fourth such anniversaries and
(ii) the
excess of the Group II Fraud Loss Coverage Amount as of the
preceding
anniversary of the Cut-off Date over the cumulative amount of Fraud
Losses
allocated to the Group II Certificates since such preceding
anniversary; and
(b) on the fifth anniversary of the Cut-off Date, to zero.
Group II 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 II-B-1.................................
7.20%
Class II-B-2.................................
4.60%
Class II-B-3.................................
2.95%
Class II-B-4.................................
1.90%
Class II-B-5.................................
0.90%
Class II-B-6.................................
0.35%
Group II Original Subordinated Principal Balance: On or prior to
the
Senior Termination Date, the Subordinated Percentage of the
aggregate Stated
Principal Balance of the Mortgage Loans in the related Loan Group,
in each
case as of the Cut-off Date; or if such date is after the Senior
Termination
Date, the aggregate Class Certificate Balance of the Group II
Subordinated
Certificates as of the Closing Date.
Group II Senior Certificates: As specified in the Preliminary
Statement.
Group II Senior Percentage: As to any Distribution Date, the
percentage
equivalent of a fraction, the numerator of which is the aggregate
Class
Certificate Balance of the Group 4 Senior Certificates immediately
before the
Distribution Date and the denominator of which is the aggregate
Class
Certificate Balance of the Group II Certificates immediately prior
to that
Distribution Date.
Group II Special Hazard Loss Coverage Amount: With respect to the
first
Distribution Date, $4,000,000. 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 in
Aggregate Loan
Group II, (ii) twice the principal balance of the largest Mortgage
Loan in
Aggregate Loan Group II and (iii) the aggregate of the principal
balances of
all Mortgage Loans in Aggregate Loan Group II 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
Group II
Special Hazard Loss Coverage Amount as of the Closing Date less the
amount, if
any, of Special Hazard Losses allocated to the Group II
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 in Aggregate Loan Group II then due, whether or not
paid.
Group II Special Hazard Coverage Termination Date: The point in
time at
which the Group II Special Hazard Loss Coverage Amount is reduced
to zero.
Group II Subordinated Certificates: As specified in the
Preliminary
Statement.
Group II Subordinated
Percentage: As to Loan Group 4 and any Distribution
Date, 100% minus the Group II Senior Percentage.
Hard
Prepayment Charges: As to a Mortgage Loan, any charge payable by
a
Mortgagor in connection with certain partial prepayments and all
prepayments
in full made within the related Prepayment Charge Period, the Hard
Prepayment
Charges with respect to each applicable Mortgage Loan so held by
the Trust
Fund being identified in the Mortgage Loan Schedule.
Hedged Certificates: Not applicable.
Index: Not applicable.
22
<PAGE>
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 Group I Bankruptcy Loss Coverage Amount: $150,000.
Initial Group II Bankruptcy Loss Coverage Amount: $150,000.
Initial LIBOR Rate: Not applicable.
Insurance Policy: For any Mortgage Loan included in the Trust Fund,
any
insurance policy, including all riders and endorsements thereto in
effect,
including any replacement policy or policies for any Insurance
Policies.
Insurance Proceeds: Proceeds paid by an insurer pursuant to any
Insurance
Policy, in each case other than any amount included in such
Insurance Proceeds
in respect of Insured Expenses.
Insured Expenses: Expenses covered by an Insurance Policy or any
other
insurance policy with respect to the Mortgage Loans.
Interest Accrual Period: With respect to each Class of Delay
Certificates
and any Distribution Date, the calendar month prior to the month of
such
Distribution Date. 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 Rate: With respect to each REMIC 1 Interest, the
applicable rate
set forth or calculated in the manner described in the Preliminary
Statement.
Interest Settlement Rate: As defined in Section 4.08.
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
4.08.
LIBOR Determination Date: For any Interest Accrual Period, the
second
London Business Day prior to the commencement of such Interest
Accrual Period.
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<PAGE>
Limited Exchange Act Reporting Obligations: The obligations of
the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with
respect to
notice and information to be provided to the Depositor and Article
11 (except
Section 11.07(a)(i) and (ii)).
Liquidated Mortgage Loan: For any Distribution Date, a defaulted
Mortgage
Loan (including any REO Property) that was liquidated in the
calendar month
preceding the month of the Distribution Date and as to which the
Servicer has
certified (in accordance with this Agreement) that it has received
all amounts
it expects to receive in connection with the liquidation of the
Mortgage Loan,
including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds
regardless of
when received, received in connection with the partial or complete
liquidation
of defaulted Mortgage Loans, whether through trustee's sale,
foreclosure sale,
or otherwise or amounts received in connection with any
condemnation or
partial release of a Mortgaged Property, and any other proceeds
received in
connection with an REO Property, less the sum of related
unreimbursed
Servicing Fees, Servicing Advances, and Advances.
Loan
Group: Any of Loan Group 1, Loan Group 2, Loan Group 3 and Loan
Group 4, as applicable.
Loan
Group 1: All Mortgage Loans identified as Group 1 Mortgage Loans
on
the Mortgage Loan Schedule.
Loan
Group 2: All Mortgage Loans identified as Group 2 Mortgage Loans
on
the Mortgage Loan Schedule.
Loan
Group 3: All Mortgage Loans identified as Group 3 Mortgage Loans
on
the Mortgage Loan Schedule.
Loan
Group 4: All Mortgage Loans identified as Group 4 Mortgage Loans
on
the Mortgage Loan Schedule.
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.
Maximum Mortgage Rate: For each Mortgage Loan, the percentage set
forth
in the related Mortgage Note as the lifetime maximum Mortgage Rate
to which
such Mortgage Rate may be adjusted.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation
organized and existing under the laws of the State of Delaware, or
any
successor thereto.
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MERS
Mortgage Loan: Any Mortgage Loan registered with MERS on the
MERS(R)
System.
MERS(R) System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN:
The mortgage identification number for any MERS Mortgage Loan.
Minimum Mortgage Rate: For each Mortgage Loan, the percentage set
forth
in the related Mortgage Note as the lifetime minimum Mortgage Rate
to which
such Mortgage Rate may be adjusted.
MOM
Loan: Any Mortgage Loan as to which MERS is acting as
mortgagee,
solely as nominee for the originator of such Mortgage Loan and its
successors
and assigns.
Moneyline Telerate Page 3750: The display page currently so
designated on
the Moneyline Telerate Information Services, Inc. (or any page
replacing that
page on that service for the purpose of displaying London
inter-bank offered
rates of major banks).
Monthly Statement: The statement delivered to the
Certificateholders
pursuant to Section 4.06.
Moody's: 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.
Mortgage Index: One-Year LIBOR Index.
Mortgage Loans: Such of the mortgage loans transferred and assigned
to
the Trustee pursuant to this Agreement, as from time to time are
held as a
part of the Trust Fund (including any REO Property), the Mortgage
Loans so
held being identified on the Mortgage Loan Schedule,
notwithstanding
foreclosure or other acquisition of title of the related Mortgaged
Property.
Mortgage Loan Schedule: As of any date, the list set forth in
Schedule I
of Mortgage Loans included in the Trust Fund on that date. The
Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the
following
information with respect to each Mortgage Loan by Loan Group:
(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;
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(vi) the first payment date of the Mortgage Loan;
(vii) the Scheduled Payment in effect as of the Cut-off Date;
(viii) the Gross Margin;
(ix) the Maximum Mortgage Rate;
(x) the Adjustment
Date;
(xi) a code indicating the Mortgage Index and when it is
determined;
(xii) the
Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at
the
time of origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is
either
(a) a detached single family dwelling, (b) a dwelling in a PUD,
(c) a condominium unit, (d) a two- to four-unit residential
property, or (e) a Cooperative Unit;
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender
PMI
Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest
premium
charged by the lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan;
(xxiv) the Minimum Mortgage Rate; and
(xxv) 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 and for each Loan Group and
Aggregate Loan
Group.
Mortgage Note: The original executed note or other evidence of
the
indebtedness of a Mortgagor under a Mortgage Loan.
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<PAGE>
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 and
Loan
Group, the amount by which the aggregate of the Prepayment Interest
Shortfalls
for such Loan Group exceeds an amount equal to the sum of (a) the
Compensating
Interest allocable to such Loan Group for such Distribution Date
and (b) in
the case of Aggregate Loan Group I, the excess, if any, of the
Compensating
Interest allocable to the other Loan Groups in Aggregate Loan Group
I for such
Distribution Date over Prepayment Interest Shortfalls for such
other Loan
Groups in Aggregate Loan Group I and Distribution Date.
Non-Delay Certificates: As specified in the Preliminary
Statement.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made by the Servicer, that, in the good faith
judgment of the
Servicer, will not be ultimately recoverable by the Servicer from
the related
Mortgagor, related Liquidation Proceeds or otherwise.
Notice of Final Distribution: The notice to be provided pursuant
to
Section 9.02 to the effect that final distribution on any of the
Certificates
shall be made only upon presentation and surrender thereof.
Notional Amount: With respect to the Class 2-A-2-X Certificates for
the
Interest Accrual Period for any Distribution Date (x) up to and
including the
Distribution Date in November 2011, the Class Certificate Balance
of the Class
2-A-1-2 Certificates immediately prior to that Distribution Date,
and (y)
after the Distribution Date in November 2011, zero. With respect to
the Class
4-A-X Certificates for the Interest Accrual Period for any
Distribution Date
(x) up to and including the Distribution Date in November 2016, the
aggregate
Class Certificate Balance of the Class 4-A-1 and Class 4-A-2
Certificates
immediately prior to that Distribution Date and (y) after the
Distribution
Date in November 2016, zero.
Notional Amount Certificates: As specified in the Preliminary
Statement.
Notional Amount Components: 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 or
(iii) in the
case of any other Person, signed by an authorized officer of such
Person.
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<PAGE>
One-Year CMT Index: The weekly average yield on United States
Treasury
securities adjusted to a constant maturity of one year as published
by the
Federal Reserve Board in Statistical Release H.15(591) and most
recently
available as of a day specified in the related Mortgage Note.
One-Year LIBOR Index: The average of the London interbank offered
rates
for one-year U.S. dollar deposits in the London market, generally
as set forth
in either The Wall Street Journal or some other source generally
accepted in
the residential mortgage loan origination business and specified in
the
related Mortgage Note, or, if such rate ceases to be published in
The Wall
Street Journal or becomes unavailable for any reason, then based
upon a new
index selected by the servicer, based on comparable information, in
each case,
as most recently announced as of either 45 days prior to, or the
first
Business Day of the month immediately preceding the month of, such
Adjustment
Date.
Opinion of Counsel: For the interpretation or application of the
REMIC
Provisions, a written opinion of counsel who (i) is in fact
independent of the
Depositor and the Servicer, (ii) does not have any direct financial
interest
in the Depositor or the Servicer or in any affiliate of either, and
(iii) is
not connected with the Depositor or the Servicer as an officer,
employee,
promoter, underwriter, trustee, partner, director, or person
performing
similar functions. Otherwise, a written opinion of counsel who may
be counsel
for the Depositor or the Servicer, including in-house counsel,
reasonably
acceptable to the Trustee.
Optional Termination Date: As defined in Section 9.01.
Original Mortgage Loan: The Mortgage Loan refinanced in connection
with
the origination of a Refinance Loan.
Original Subordinated Principal Balance: Either the Group I
Subordinated
Principal Balance or the Group II Subordinated Principal Balance,
as
applicable.
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: As defined in Section 4.03.
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.
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<PAGE>
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:
(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
29
<PAGE>
corporation incorporated under the laws of the United States or any
state
thereof that, at the time of the investment, have one of the two
highest
ratings of each Rating Agency (except if the Rating Agency is
Moody's the
rating shall be the highest commercial paper rating of Moody's for
the
securities), or any lower rating that will not result in the
downgrading,
qualification or withdrawal of the ratings then assigned to the
Certificates
by the Rating Agencies, as evidenced by a signed writing delivered
by each
Rating Agency and that have a maturity date occurring no more than
365 days
from their date of issuance;
(ix)
units of a taxable money-market portfolio having the highest
rating
assigned by each Rating Agency (except (i) if Fitch is a Rating
Agency and has
not rated the portfolio, the highest rating assigned by Moody's and
(ii) if
S&P is a Rating Agency, "AAAm" or "AAAM-G" by S&P) and
restricted to
obligations issued or guaranteed by the United States of America or
entities
whose obligations are backed by the full faith and credit of the
United States
of America and repurchase agreements collateralized by such
obligations; and
(x)
any other investments bearing interest or sold at a discount
acceptable to each Rating Agency that will not result in the
downgrading,
qualification or withdrawal of the ratings then assigned to the
Certificates
by the Rating Agencies, as evidenced by a signed writing delivered
by each
Rating Agency.
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 to fail to qualify as
a REMIC at
any time that the Certificates are outstanding.
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<PAGE>
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: Not applicable.
Planned Principal Classes: As specified in the Preliminary
Statement.
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.
Prepayment Period: As to any Distribution Date and related Due
Date, the
period from and including the 16th day of the month immediately
prior to the
month of such Distribution Date (or, in the case of the first
Distribution
Date, from the Cut-off Date) and to and including the 15th day of
the month of
such Distribution Date.
Prepayment Shift Percentage: Not applicable.
Primary Insurance Policy: Each policy of primary mortgage
guaranty
insurance or any replacement policy therefor with respect to any
Mortgage
Loan.
Principal Amount: As to any Distribution Date and each Loan Group,
the
sum of (a) all monthly payments of principal due on each Mortgage
Loan in that
Loan Group on the related Due Date, (b) the principal portion of
the Purchase
Price of each Mortgage Loan in that Loan Group 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 Rate,
(c) the Substitution Adjustment Amount in connection with any
Deleted Mortgage
Loan in that Loan Group received with respect to such Distribution
Date, (d)
any Insurance Proceeds or Liquidation Proceeds allocable to
recoveries of
principal of Mortgage Loans in that Loan Group that are not yet
Liquidated
Mortgage Loans received during the
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<PAGE>
calendar month preceding the month of such Distribution Date, (e)
with respect
to each Mortgage Loan in that Loan Group 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, (f) all partial and full Principal
Prepayments
on the Mortgage Loans in that Loan Group received during the
related
Prepayment Period and the principal portion of the Purchase Price
of any
Mortgage Loan repurchased by the Seller pursuant to Section 3.12,
and (g) any
Subsequent Recoveries with respect to the Mortgage Loans in that
Loan Group
received during the calendar month preceding the month of such
Distribution
Date.
Principal Only Certificates: As specified in the Preliminary
Statement.
Principal Prepayment: Any payment of principal by a Mortgagor on
a
Mortgage Loan (including the principal portion of the Purchase
Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received
in advance
of its scheduled Due Date and is not accompanied by an amount
representing
scheduled interest due on any date in any month after the month of
prepayment.
The Servicer shall apply partial Principal Prepayments in
accordance with the
related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by
a
Mortgagor of the entire principal balance of a Mortgage Loan.
Principal Relocation Payment: A payment from any Loan Group in
Aggregate
Loan Group I to REMIC 1 Interests other than those of their
corresponding Loan
Group as provided in the Preliminary Statement. Principal
Relocation Payments
shall be made of principal allocations comprising the Principal
Amount from a
Loan Group.
Private Certificates: As specified in the Preliminary
Statement.
Pro
Rata Share: As to any Distribution Date and any Class of
Subordinated
Certificates in a Subordinated Certificate Group, the portion of
the related
Subordinated Principal Distribution Amount allocable to such Class,
equal to
the product of that Subordinated Principal Distribution Amount on
such
Distribution Date and a fraction, the numerator of which is the
Class
Certificate Balance thereof and the denominator of which is the
aggregate
Class Certificate Balance of the Subordinated Certificates in the
same
Subordinated Certificate Group, 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 to the
Prospectus
Supplement.
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
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<PAGE>
to the Due Date in the month in which the Purchase Price is to be
distributed
to Certificateholders, net of any unreimbursed Advances made by the
Servicer
on the Mortgage Loan, and
(iii) any costs and damages incurred by the Trust Fund in
connection with
any violation by the Mortgage Loan of any predatory or abusive
lending law.
If
the Mortgage Loan is purchased pursuant to Section 3.12, the
interest
component of the Purchase Price shall be computed (i) on the basis
of the
applicable Adjusted Mortgage Rate before giving effect to the
related
modification and (ii) from the date to which interest was last paid
to the
date on which the Mortgage Loan is assigned to the Servicer
pursuant to
Section 3.12.
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, named in the Underwriter's Exemption and
designated
by the Depositor, notice of which designation shall be given to the
Trustee.
References to a given rating or rating category of a Rating Agency
means the
rating category without giving effect to any modifiers.
Realized Loss: With respect to each Liquidated Mortgage Loan, an
amount
(not less than zero or more than the Stated Principal Balance of
the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated
Principal
Balance of the Liquidated Mortgage Loan as of the date of such
liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the Due
Date as to
which interest was last paid or advanced (and not reimbursed)
to
Certificateholders up to the Due Date in the month in which
Liquidation
Proceeds are required to be distributed on the Stated Principal
Balance of
such Liquidated Mortgage Loan from time to time, minus (iii) the
Liquidation
Proceeds, if any, received during the month in which such
liquidation
occurred, to the extent applied as recoveries of interest at the
Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan.
With respect
to each Mortgage Loan which 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.
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Record Date: With respect to any Distribution Date, the close of
business
on the last Business Day of the month preceding the month of that
Distribution
Date.
Reference Bank: As defined in Section 4.08.
Refinance Loan: Any Mortgage Loan the proceeds of which are used
to
refinance an 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 Cap Counterparty, any
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enhancement or support provider contemplated by Items 1114(b) or
1115 of
Regulation AB, or any other material party contemplated by Item
1101(d)(1) of
Regulation AB;
(d)
with respect to the Trustee, the Servicer and the Depositor only,
the
occurrence of an early amortization, performance trigger or other
event,
including an Event of Default under this Agreement;
(e)
any amendment to this Agreement;
(f)
the resignation, removal, replacement, substitution of the
Servicer
or the Trustee;
(g)
with respect to the Servicer only, if the Servicer becomes aware
that
(i) any material enhancement or support specified in Item
1114(a)(1) through
(3) of Regulation AB or Item 1115 of Regulation AB that was
previously
applicable regarding one or more Classes of the Certificates has
terminated
other than by expiration of the contract on its stated termination
date or as
a result of all parties completing their obligations under such
agreement;
(ii) any material enhancement specified in Item 1114(a)(1) through
(3) of
Regulation AB or Item 1115 of Regulation AB has been added with
respect to one
or more Classes of the Certificates; or (iii) any existing
material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation
AB or Item 1115 of Regulation AB with respect to one or more
Classes of the
Certificates has been materially amended or modified; and
(h)
with respect to the Trustee, the Servicer and the Depositor only,
a
required distribution to Holders of the Certificates is not made as
of the
required Distribution Date under this Agreement.
Reporting Subcontractor: With respect to the Servicer or the
Trustee, any
Subcontractor determined by such Person pursuant to Section
11.08(b) to be
"participating in the servicing function" within the meaning of
Item 1122 of
Regulation AB. References to a Reporting Subcontractor shall refer
only to the
Subcontractor of such Person and shall not refer to Subcontractors
generally.
Request for Release: The Request for Release submitted by the
Servicer to
the Trustee, substantially in the form of Exhibits M and N, as
appropriate.
Required Insurance Policy: 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.
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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.
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: As to either Certificate
Group, the
date on which the Class Certificate Balance of each Class of Group
I
Subordinated Certificates or each Class of Group II Subordinated
Certificates,
as applicable, has been reduced to zero.
Senior Percentage: The Group I Senior Percentage or the Group II
Senior
Percentage, as applicable.
Senior Prepayment Percentage: As to a Senior Certificate Group and
any
Distribution Date during the seven years beginning on the first
Distribution
Date, 100%. The related Senior Prepayment Percentage for any
Distribution Date
occurring on or after the seventh 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 related Senior
Percentage
plus 70% of the related Subordinated Percentage for such
Distribution Date;
for any Distribution Date in the second year thereafter, the
related Senior
Percentage plus 60% of the related Subordinated Percentage for
such
Distribution Date; for any Distribution Date in the third year
thereafter, the
related Senior Percentage plus 40% of the related Subordinated
Percentage for
such Distribution Date; for any Distribution Date in the fourth
year
thereafter, the related Senior Percentage plus 20% of the related
Subordinated
Percentage for such Distribution Date; and for any Distribution
Date
thereafter, the related Senior Percentage for such Distribution
Date (unless
on any Distribution Date the Senior Percentage of a Senior
Certificate Group
exceeds the initial Senior Percentage for such Senior Certificate
Group in
which case the Senior Prepayment Percentage for each Senior
Certificate Group
in the relevant Certificate Group for such Distribution Date will
once again
equal 100%). Notwithstanding the foregoing, no decrease in any
Senior
Prepayment Percentage for a
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<PAGE>
Loan Group in an Aggregate Loan Group will occur unless both Senior
Step Down
Conditions are satisfied with respect to all of the Loan Groups in
that
Aggregate Loan Group.
Notwithstanding the preceding paragraphs, if (x) on or before
the
Distribution Date in November 2009, the Group I Subordinated
Percentage is at
least 200% of the Group I Subordinated Percentage as of the Closing
Date, the
delinquency test set forth above is satisfied and cumulative
Realized Losses
do not exceed 20% of the aggregate Class Certificate Balance of the
Group I
Subordinated Certificates as of the Closing Date, the Senior
Prepayment
Percentage for each loan group in Aggregate Loan Group I will equal
the
related Senior Percentage for that Distribution Date plus 50% of
the related
Subordinated Percentage and (y) after the Distribution Date in
November 2009,
the Group I Subordinated Percentage is at least 200% of the Group
I
Subordinated Percentage as of the Closing Date, the delinquency
test set forth
above is satisfied and cumulative Realized Losses do not exceed 30%
of the
aggregate Class Certificate Balance of the Group I Subordinated
Certificates
as of the Closing Date, the Senior Prepayment Percentage for each
loan group
in Aggregate Loan Group I will equal the Group I Senior
Percentage.
Notwithstanding the preceding paragraphs, if (x) on or before
the
Distribution Date in November 2009, the Group II Subordinated
Percentage is at
least 200% of the Group II Subordinated Percentage as of the
Closing Date, the
delinquency test set forth above is satisfied and cumulative
Realized Losses
on the Group 4 Mortgage Loans do not exceed 20% of the aggregate
Class
Certificate Balance of the Group II Subordinated Certificates as of
the
Closing Date, the Senior Prepayment Percentage for loan group 4
will equal the
related Group II Senior Percentage for that Distribution Date plus
50% of
Group II Subordinated Percentage for that Distribution Date and (y)
after the
Distribution Date in November 2009, the Group II Subordinated
Percentage is at
least 200% of the Group II Subordinated Percentage as of the
Closing Date, the
delinquency test set forth above is satisfied and cumulative
Realized Losses
on the Group 4 Mortgage Loans do not exceed 30% of the aggregate
Class
Certificate Balance of the Group II Subordinated Certificates as of
the
Closing Date, the Senior Prepayment Percentage for loan group 4
will equal the
related Group II Senior Percentage.
Senior Principal Distribution Amount: As to any Distribution Date
and any
Loan Group, the sum of (i) the related Senior Percentage of all
amounts
described in clauses (a) through (d) of the definition of Principal
Amount for
that Loan Group and such Distribution Date, (ii) with respect to
any Mortgage
Loan that became a Liquidated Mortgage Loan during the calendar
month
preceding the month of such Distribution Date, the lesser of (x)
the related
Senior Percentage of the Stated Principal Balance of such Mortgage
Loan and
(y) either (A) if no Excess Losses were sustained on the Liquidated
Mortgage
Loan during the preceding calendar month, the related Senior
Prepayment
Percentage of the amount of the Liquidation Proceeds allocable to
principal
received on the Mortgage Loan or (B) if an Excess Loss was
sustained with
respect to such Liquidated Mortgage Loan during such preceding
calendar month,
the Senior Percentage of the amount of the Liquidation Proceeds
allocable to
principal received with respect to such Mortgage Loan, and (iii)
the sum of
(x) the Senior Prepayment Percentage of the amounts described in
clause (f) of
the definition of Principal Amount for that Loan Group and such
Distribution
Date, and (y) the applicable Senior Prepayment Percentage of any
Subsequent
Recoveries described in clause (g) of the definition of Principal
Amount for
that Loan Group and such Distribution Date; provided, however, that
if a
Bankruptcy Loss that is an Excess Loss is sustained with respect to
a Mortgage
Loan in that Loan Group that is not a Liquidated Mortgage Loan, the
Senior
Principal Distribution Amount will be reduced on the related
Distribution Date
by the Senior Percentage of the applicable principal portion of
such
Bankruptcy Loss; provided further, however, on any Distribution
Date after the
second Senior Termination Date, the Senior Principal Distribution
Amount for
the remaining Senior Certificate Group in Aggregate Loan Group I
will be
calculated pursuant to the above formula based on all the Mortgage
Loans in
Aggregate Loan Group I, as opposed to the Mortgage Loans in the
related Loan
Group.
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<PAGE>
Senior Step Down Conditions: As to any Distribution Date: (i)
the
aggregate Stated Principal Balance of all the Mortgage Loans in an
Aggregate
Loan Group 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 (a) in the case of Certificate Group I, if such date
is on or
prior to second Senior Termination Date, the Subordinated
Percentage for that
Loan Group of the aggregate Stated Principal Balance of the
Mortgage Loans in
that Loan Group, or (b) in the case of Certificate Group I if such
date is
after the second Senior Termination Date and in the case of
Certificate Group
II the aggregate Class Certificate Balance of the Subordinated
Certificates
immediately prior to such Distribution Date, does not equal or
exceed 50%, and
(ii) cumulative Realized Losses do not exceed: (a) commencing with
the
Distribution Date on the seventh anniversary of the first
Distribution Date,
30% of the Original Subordinated Principal Balance, (b) commencing
with the
Distribution Date on the eighth anniversary of the first
Distribution Date,
35% of the Original Subordinated Principal Balance, (c) commencing
with the
Distribution Date on the ninth anniversary of the first
Distribution Date, 40%
of the Original Subordinated Principal Balance, (d) commencing with
the
Distribution Date on the tenth anniversary of the first
Distribution Date, 45%
of the Original Subordinated Principal Balance, and (e) commencing
with the
Distribution Date on the eleventh anniversary of the first
Distribution Date
and thereafter, 50% of the Original Subordinated Principal
Balance.
Senior Termination Date: For each Senior Certificate Group in
Certificate
Group I, the Distribution Date on which the aggregate Class
Certificate
Balance of the related Classes of Group I Senior Certificates has
been reduced
to zero.
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,
(d) compliance with the obligations under Section 3.10, and
(e) reasonable compensation to the Servicer or its affiliates
for
acting as broker in connection with the sale of foreclosed
Mortgaged
Properties and for performing certain default management and
other
similar services (including appraisal services) in connection with
the
servicing of defaulted Mortgage Loans. For purposes of this clause
(e),
only
costs and expenses incurred in connection with the performance
of
activities generally considered to be outside the scope of
customary
servicing or master servicing duties shall be treated as
Servicing
Advances.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of
Regulation AB.
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<PAGE>
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, either 0.250% or
0.375%, as
specified in 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.
Six-Month LIBOR Index: The average of the London interbank offered
rates
for six month U.S. dollar deposits in the London market, generally
as set
forth in either The Wall Street Journal or some other source
generally
accepted in the residential mortgage loan origination business and
specified
in the related Mortgage Note or, if such rate ceases to be
published in The
Wall Street Journal or becomes unavailable for any reason, then
based upon a
new index selected by the Servicer, based on comparable
information, in each
case, as most recently announced as of either 45 days prior to, or
the first
Business Day of the month immediately preceding the month of, such
Adjustment
Date.
Soft
Prepayment Charges: As to a Mortgage Loan, any charge payable by
a
Mortgagor in connection with certain partial prepayments and all
prepayments
in full made within the related Prepayment Charge Period other than
as a
result of selling the Mortgaged Property, the Soft Prepayment
Charges with
respect to each applicable Mortgage Loan so held by the Trust Fund
being
identified in the Mortgage Loan Schedule.
Special Hazard Coverage Termination Date: The Group I Special
Hazard
Coverage Termination Date or the Group II Special Hazard Coverage
Termination
Date, as applicable.
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;
(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,
39
<PAGE>
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: The Group I Special Hazard
Loss
Coverage Amount or the Group II Special Hazard Loss Coverage
Amount, as
applicable.
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
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 Certificate Group: With respect to Aggregate Group I,
the
Group I Subordinated Certificates, and with respect to Aggregate
Group II, the
Group II Subordinated Certificates, as the context may require.
Subordinated Certificates: As specified in the Preliminary
Statement.
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<PAGE>
Subordinated Prepayment Percentage: As to any Distribution Date and
Loan
Group, 100% minus the related Senior Prepayment Percentage for
such
Distribution Date.
Subordinated Principal Distribution Amount: As to any Distribution
Date
and Aggregate Loan Group, the sum of the following with respect to
each Loan
Group in that Aggregate Loan Group: (i) the Subordinated Percentage
of all
amounts described in clauses (a) through (d) of the definition of
Principal
Amount with respect to each Loan Group in such Aggregate Loan Group
and such
Distribution Date, (ii) with respect to any Mortgage Loan in a Loan
Group in
an Aggregate Loan Group 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
thereto
remaining after application thereof pursuant to clause (ii) of the
definition
of Senior Principal Distribution Amount for that Loan Group, up to
the related
Subordinated Percentage of the Stated Principal Balance of such
Mortgage Loan
and (iii) the sum of the Subordinated Prepayment Percentage of the
amounts
described in clauses (f) and (g) of the definition of Principal
Amount with
respect to that Loan Group in an Aggregate Loan Group for such
Distribution
Date; provided, however, that on any Distribution Date after the
second Senior
Termination Date for the Group I Certificates, the Subordinated
Principal
Distribution Amount for the Group I Subordinated Certificates will
not be
calculated by Loan Group but will equal the amount calculated
pursuant to the
formula set forth above based on the Group I Subordinated
Percentage and Group
I Subordinated Prepayment Percentage for the Group I Subordinated
Certificates
for such Distribution Date with respect to all of the Mortgage
Loans in
Aggregate Loan Group I as opposed to the Mortgage Loans only in the
related
Loan Group.
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;
(iii) have
a Maximum Mortgage Rate not more than 1% per annum higher than
and not lower than the Maximum Mortgage Rate of the deleted
Mortgage
Loan;
(iv)
have the same Mortgage Index and interval between Adjustment
Dates
as the deleted Mortgage Loan and a Gross Margin not more than 1%
per
annum higher than, and not lower than that of the deleted
Mortgage
Loan;
(vi)
have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(vii) have a remaining term to maturity no greater than (and not
more
than one year less than) that of the Deleted Mortgage Loan;
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<PAGE>
(viii) not be a Cooperative Loan unless the Deleted Mortgage Loan
was a
Cooperative Loan; and
(ix)
comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Suspension Notification: Notification to the Commission of the
suspension
of the Trust Fund's obligation to file reports pursuant to Section
15(d) of
the Exchange Act.
Targeted Balance: Not applicable.
Targeted Principal Classes: As specified in the Preliminary
Statement.
Transaction Documents: This Agreement 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: As defined in Section 4.03.
Transfer Payment Received: As defined in Section 4.03.
Trust Fund: The corpus of the trust created under this
Agreement
consisting of
(i)
the Mortgage Loans and all interest and principal received on
them
after the Cut-off Date, other than amounts due on the Mortgage
Loans by the
Cut-off Date;
(ii)
the Certificate Account, the Distribution Account 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 proceeds of the conversion, voluntary or involuntary, of any
of
the foregoing.
Trustee: Deutsche Bank National Trust Company and its successors
and, if
a successor trustee is appointed under this Agreement, the
successor.
Trustee Fee: The fee payable to the Trustee on each Distribution
Date for
its services as Trustee hereunder, in an amount equal to
one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the
Mortgage Loans as of the Due Date in the month preceding the month
of such
Distribution Date (after giving effect to Principal Prepayments in
the
Prepayment Period related to that prior Due Date)..
Trustee Fee Rate: 0.0065% per annum.
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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: As defined in Section 4.03.
Underwriter's Exemption: Prohibited Transaction Exemption 2002-41,
67
Fed. Reg. 54487 (2002) (or any successor thereto), or any
substantially
similar administrative exemption granted by the U.S. Department of
Labor
United States Person or U.S. Person:
(i)
A citizen or resident of the United States;
(ii)
a corporation (or entity treated as a corporation for tax
purposes)
created or organized in the United States or under the laws of the
United
States or of any state thereof, including, for this purpose, the
District of
Columbia;
(iii) a partnership (or entity treated as a partnership for tax
purposes)
organized in the United States or under the laws of the United
States or of
any state thereof, including, for this purpose, the District of
Columbia
(unless provided otherwise by future Treasury regulations);
(iv)
an estate whose income is includible in gross income for United
States income tax purposes regardless of its source; or
(v)
a trust, if a court within the United States is able to
exercise
primary supervision over the administration of the trust and one or
more U.S.
Persons have authority to control all substantial decisions of the
trust.
Notwithstanding the last clause of the preceding sentence, to the
extent
provided in Treasury regulations, certain trusts in existence on
August 20,
1996, and treated as U.S. Persons before that date, may elect to
continue to
be U.S. Persons.
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.
Weighted Average Adjusted Net Mortgage Rate: For any Distribution
Date
and Loan Group, the average of the Adjusted Net Mortgage Rate of
each Mortgage
Loan in that Loan Group, weighted on the basis of its Stated
Principal Balance
as of the Due Date in the prior month (after giving effect to
Principal
Prepayments in the Prepayment Period related to such prior Due
Date).
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Weighted Average Initial Adjustment Date: Not applicable.
Withdrawal Date: The 18th day of each month, or if such day is not
a
Business Day, the next preceding Business Day.
Section 1.02 Rules of Construction.
Except as otherwise expressly provided in this Agreement or unless
the
context clearly requires otherwise
(a)
References to designated articles, sections, subsections,
exhibits,
and other subdivisions of this Agreement, such as "Section 6.12
(a)," refer to
the designated article, section, subsection, exhibit, or other
subdivision of
this Agreement as a whole and to all subdivisions of the designated
article,
section, subsection, exhibit, or other subdivision. The words
"herein,"
"hereof," "hereto," "hereunder," and other words of similar import
refer to
this Agreement as a whole and not to any particular article,
section, exhibit,
or other subdivision of this Agreement.
(b)
Any term that relates to a document or a statute, rule, or
regulation
includes any amendments, modifications, supplements, or any other
changes that
may have occurred since the document, statute, rule, or regulation
came into
being, including changes that occur after the date of this
Agreement.
(c)
Any party may execute any of the requirements under this
Agreement
either directly or through others, and the right to cause something
to be done
rather than doing it directly shall be implicit in every
requirement under
this Agreement. Unless a provision is restricted as to time or
limited as to
frequency, all provisions under this Agreement are implicitly
available and
things may happen from time to time.
(d)
The term "including" and all its variations mean "including but
not
limited to." Except when used in conjunction with the word
"either," the word
"or" is always used inclusively (for example, the phrase "A or B"
means "A or
B or both," not "either A or B but not both").
(e)
A reference to "a [thing]" or "any [of a thing]" does not imply
the
existence or occurrence of the thing referred to even though not
followed by
"if any," and "any [of a thing]" is any of 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.
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<PAGE>
(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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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 $200 into the Certificate Account for the benefit of the
Class I-P and
Class II-P Certificates.
(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.
(c)
In connection with the transfer and assignment of each Mortgage
Loan,
the Depositor has delivered (or, in the case of the Delay Delivery
Mortgage
Loans, will deliver to the Trustee within the time periods
specified in the
definition of Delay Delivery Mortgage Loans), for the benefit of
the
Certificateholders the following documents or instruments with
respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in blank in the following form: "Pay to the order of
_______________ ______________without recourse," with all
intervening
endorsements showing a complete chain of endorsement from the
originator
to
the Person endorsing the Mortgage Note (each endorsement being
sufficient to transfer all interest of the party so endorsing,
as
noteholder or assignee thereof, in that Mortgage Note) or a lost
note
affidavit for any Lost Mortgage Note from the Seller stating that
the
original Mortgage Note was lost or destroyed, together with a copy
of the
Mortgage Note.
(ii) Except as provided below and for each Mortgage Loan that is
not
a
MERS Mortgage Loan, the original recorded Mortgage or a copy of
such
Mortgage certified by the Seller as being a true and complete copy
of the
Mortgage (or, in the case of a Mortgage for which the related
Mortgaged
Property is located in the Commonwealth of Puerto Rico, a true copy
of
the
Mortgage certified as such by the applicable notary) and in the
case
of
each MERS Mortgage Loan, the original Mortgage, noting the presence
of
the
MIN of the Mortgage Loans and either language indicating that
the
Mortgage Loan is a MOM Loan if the Mortgage Loan is
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a
MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the
original Mortgage and the assignment thereof to MERS, with evidence
of
recording indicated thereon, or a copy of the Mortgage certified by
the
public recording office in which such Mortgage has been
recorded;
(iii) In the case of a Mortgage Loan that is not a MERS
Mortgage
Loan, a duly executed assignment of the Mortgage (which may be
included
in a
blanket assignment or assignments), together with, except as
provided below, all interim recorded assignments of the mortgage
(each
assignment, when duly and validly completed, to be in recordable
form and
sufficient to effect the assignment of and transfer to its assignee
of
the
Mortgage to which the assignment relates). If the related
Mortgage
has
not been returned from the applicable public recording office,
the
assignment of the Mortgage may exclude the information to be
provided by
the
recording office. The assignment of Mortgage need not be delivered
in
the
case of a Mortgage for which the related Mortgage Property is
located
in
the Commonwealth of Puerto Rico.
(iv) The original or copies of each assumption, modification,
written assurance, or substitution agreement.
(v) Except as provided below, the original or duplicate
original
lender's title policy and all its riders.
(vi) The originals of the following documents for each
Cooperative
Loan:
(A) the Co-op Shares,
together with a stock power in blank;
(B) the executed
Security Agreement;
(C) the executed
Proprietary Lease;
(D) the executed
Recognition Agreement;
(E) the executed UCC-1
financing statement that has been filed
in all places required to perfect the Seller's interest in
the Co-op Shares and the Proprietary Lease with evidence
of recording on it; and
(F) executed UCC-3
financing statements or other appropriate
UCC financing statements required by state law, evidencing
a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form
suitable for recordation). If in connection with any
Mortgage Loan the Depositor cannot deliver
(a) the original
recorded Mortgage,
(b) all interim
recorded assignments, or
(c) the lender's title
policy (together with all its
riders).
In
addition, in connection with the assignment of any MERS Mortgage
Loan,
the Seller agrees that it will cause, at the Seller's expense, the
MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to
the Depositor
have been assigned by the Seller to the Trustee in accordance with
this
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<PAGE>
Agreement for the benefit of the Certificateholders by including
(or deleting,
in the case of Mortgage Loans that are repurchased in accordance
with this
Agreement) in such computer files the information required by the
MERS(R)
System to identify the series of the Certificates issued in
connection with
such Mortgage Loans. The Seller further agrees that it will not,
and will not
permit the Servicer to, and the Servicer agrees that it will not,
alter the
information referenced in this paragraph with respect to any
Mortgage Loan
sold by the Seller to the Depositor during the term of this
Agreement unless
and until such Mortgage Loan is repurchased in accordance with the
terms of
this Agreement.
In
the event that in connection with any Mortgage Loan that is not a
MERS
Mortgage Loan the Depositor cannot deliver (a) the original
recorded Mortgage,
(b) all interim recorded assignments or (c) the lender's title
policy
(together with all riders thereto) satisfying the requirements of
clause (ii),
(iii) or (v) above, respectively, concurrently with the execution
and delivery
of this Agreement because such document or documents have not been
returned
from the applicable public recording office in the case of clause
(ii) or
(iii) above, or because the title policy has not been delivered to
either the
Servicer or the Depositor by the applicable title insurer in the
case of
clause (v) above, then the Depositor shall promptly deliver to the
Trustee, in
the case of clause (ii) or (iii) above, the original Mortgage or
the interim
assignment, as the case may be, with evidence of recording
indicated on when
it is received from the public recording office, or a copy of it,
certified,
if appropriate, by the relevant recording office and in the case of
clause (v)
above, the original or a copy of a written commitment or interim
binder or
preliminary report of title issued by the title insurance or escrow
company,
with the original or duplicate copy thereof to be delivered to the
Trustee
upon receipt thereof. The delivery of the original Mortgage Loan
and each
interim assignment or a copy of them, certified, if appropriate, by
the
relevant recording office, shall not be made later than one year
following the
Closing Date, or, in the case of clause (v) above, later than 120
days
following the Closing Date. If the Depositor is unable to deliver
each
Mortgage by that date and each interim assignment because any
documents have
not been returned by the appropriate recording office, or, in the
case of each
interim assignment, because the related Mortgage has not been
returned by the
appropriate recording office, the Depositor shall deliver the
documents to the
Trustee as promptly as possible upon their receipt and, in any
event, within
720 days following the Closing Date.
The
Depositor shall forward to the Trustee (a) from time to time
additional original documents evidencing an assumption or
modification of a
Mortgage Loan and (b) any other documents required to be delivered
by the
Depositor or the Servicer to the Trustee. If the original Mortgage
is not
delivered and in connection with the payment in full of the related
Mortgage
Loan the public recording office requires the presentation of a
"lost
instruments affidavit and indemnity" or any equivalent document,
because only
a copy of the Mortgage can be delivered with the instrument of
satisfaction or
reconveyance, the Servicer shall execute and deliver the required
document to
the public recording office. If a public recording office retains
the original
recorded Mortgage or if a Mortgage is lost after recordation in a
public
recording office, the Seller shall deliver to the Trustee a copy of
the
Mortgage certified by the public recording office to be a true and
complete
copy of the original recorded Mortgage.
As
promptly as practicable after any transfer of a Mortgage Loan
under
this Agreement, and in any event within thirty days after the
transfer, the
Trustee shall (i) affix the Trustee's name to each assignment of
Mortgage, as
its assignee, and (ii) cause to be delivered for recording in the
appropriate
public office for real property records the assignments of the
Mortgages to
the Trustee, except that, if the Trustee has not received the
information
required to deliver any assignment of a Mortgage for recording, the
Trustee
shall deliver it as soon as practicable after receipt of the
needed
information and in any event within thirty days.
The
Trustee need not record any assignment that relates to a
Mortgage
Loan (a) the Mortgaged Property and Mortgage File relating to which
are
located in California or (b) in any other jurisdiction (including
Puerto Rico)
under the laws of which, as evidenced by an Opinion of Counsel
delivered by
the
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<PAGE>
Seller (at the Seller's expense) to the Trustee, recording the
assignment is
not necessary to protect the Trustee's and the Certificateholders'
interest in
the related Mortgage Loan. The Seller shall deliver such Opinion of
Counsel
within 90 days of the Closing Date.
If
any Mortgage Loans have been prepaid in full as of the Closing
Date,
the Depositor, in lieu of delivering the above documents to the
Trustee, will
deposit in the Certificate Account the portion of the prepayment
that is
required to be deposited in the Certificate Account pursuant to
Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five
Business Days after the Closing Date, the Seller shall either
(x) deliver to the Trustee the Mortgage File as required pursuant
to
this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section
2.03 (treating each such Delay Delivery Mortgage Loan as a
Deleted
Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage
File for any
Delay Delivery Mortgage Loan within the period specified herein,
the Seller
shall use its best reasonable efforts to effect a substitution,
rather than a
repurchase of, such Deleted Mortgage Loan and provided further that
the cure
period provided for in Section 2.02 or in Section 2.03 shall not
apply to the
initial delivery of the Mortgage File for such Delay Delivery
Mortgage Loan,
but rather the Seller shall have five (5) Business Days to cure
such failure
to deliver. At the end of such period, the Trustee shall send a
Delay Delivery
Certification for the Delay Delivery Mortgage Loans delivered
during such
period in accordance with the provisions of Section 2.02.
(d)
The Seller agrees to treat the transfer of the Mortgage Loans to
the
Depositor as a sale for all tax, accounting, and regulatory
purposes.
Section 2.02 Acceptance by the Trustee of the Mortgage Loans.
The
Trustee acknowledges receipt of the documents identified in the
Initial Certification in the form of Exhibit G-1, and declares that
it holds
and will hold such documents and the other documents delivered to
it
constituting the Mortgage Files for the Mortgage Loans, and that it
holds or
will hold such other assets as are included in the Trust Fund, in
trust for
the exclusive use and benefit of all present and future
Certificateholders.
The
Trustee acknowledges that it will maintain possession of the
related
Mortgage Notes in the State of California, unless otherwise
permitted by the
Rating Agencies. The Trustee agrees to execute and deliver on the
Closing Date
to the Depositor, the Servicer and the Seller an Initial
Certification in the
form of Exhibit G-1. Based on its review and examination, and only
as to the
documents identified in such Initial Certification, the Trustee
acknowledges
that such documents appear regular on their face and relate to such
Mortgage
Loans. The Trustee shall be under no duty or obligation to inspect,
review or
examine said documents, instruments, certificates or other papers
to determine
that the same are genuine, enforceable or appropriate for the
represented
purpose or that they have actually been recorded in the real estate
records or
that they are other than what they purport to be on their face.
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<PAGE>
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, if required by Section 2.05, and any
substitution pursuant
to (a) above shall not be effected before the additional delivery
to the
Trustee of a Request for Release substantially in the form of
Exhibit N. No
substitution is permitted to be made in any calendar month after
the
Determination Date for the month.
The Purchase Price for
any Mortgage Loan shall be deposited by the Seller
in the Certificate Account by the Distribution Account Deposit Date
for the
Distribution Date in the month following the month of repurchase
and, upon
receipt of the deposit and certification with respect thereto in
the form of
Exhibit N, the Trustee shall release the related Mortgage File to
the Seller
and shall execute and deliver at the Seller's request any
instruments of
transfer or assignment prepared by the Seller, in each case without
recourse,
necessary to vest in the Seller, or a designee, the Trustee's
interest in any
Mortgage Loan released pursuant hereto.
If
pursuant to the foregoing provisions the Seller repurchases a
Mortgage
Loan that is a MERS Mortgage Loan, the Servicer shall either (i)
cause MERS to
execute and deliver an assignment of the Mortgage in recordable
form to
transfer the Mortgage from MERS to the Seller and shall cause such
Mortgage to
be removed from registration on the MERS(R) System in accordance
with MERS'
rules and
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regulations or (ii) cause MERS to designate on the MERS(R) System
the Seller
as the beneficial holder of such Mortgage Loan.
The
Trustee shall retain possession and custody of each Mortgage File
in
accordance with and subject to the terms and conditions set forth
herein. The
Servicer shall promptly deliver to the Trustee, upon the execution
or receipt
thereof, the originals of any other documents or instruments
constituting the
Mortgage File that come into the possession of the Servicer from
time to time.
The
obligation of the Seller to substitute for or to purchase any
Mortgage Loan that does not meet the requirements of Section 2.01
shall
constitute the sole remedy respecting the defect available to the
Trustee, the
Depositor, and any Certificateholder against the Seller.
Section 2.03 Representations, Warranties, and Covenants of the
Seller and
the Servicer.
(a)
IndyMac, in its capacities as Seller and Servicer, makes the
representations and warranties in Schedule II, and by this
reference
incorporated in this Agreement, to the Depositor and the Trustee,
as of the
Closing Date.
(b)
The Seller, in its capacity as Seller, makes the representations
and
warranties in Schedule III, and by this reference incorporated in
this
Agreement, to the Depositor and the Trustee, as of the Closing
Date, or if so
specified in Schedule III, as of the Cut-off Date.
(c)
Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2.03(b) that
materially
and adversely affects the interests of the Certificateholders in
any Mortgage
Loan, the party discovering such breach shall give prompt notice
thereof to
the other parties. Any breach of representations and warranties
under clauses
(26) and (32) 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, if
required by Section 2.05, and a Request for Release substantially
in the form
of Exhibit N, and the Mortgage File for any Substitute Mortgage
Loan. The
Seller shall promptly reimburse the Servicer and the Trustee for
any expenses
reasonably incurred by the Servicer or the Trustee in respect of
enforcing the
remedies for the breach.
With
respect to any Substitute Mortgage Loan or Loans, the Seller
shall
deliver to the Trustee for the benefit of the Certificateholders
the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and
such other
documents and agreements as are required by Section 2.01, with the
Mortgage
Note endorsed and the Mortgage assigned as required by Section
2.01. No
substitution is permitted to be made in any calendar month after
the
Determination Date for such month. Scheduled Payments due with
respect to
Substitute Mortgage Loans in the month of substitution shall not be
part of
the Trust Fund and will be retained by the Seller on the next
succeeding
Distribution Date. For the month of substitution, distributions
to
Certificateholders will include the monthly payment due on any
Deleted
Mortgage Loan for such month and thereafter the Seller shall be
entitled to
retain all amounts received in respect of such Deleted Mortgage
Loan.
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The
Servicer shall amend the Mortgage Loan Schedule for the benefit
of
the Certificateholders to reflect the removal of the Deleted
Mortgage Loan and
the substitution of the Substitute Mortgage Loans and the Servicer
shall
deliver the amended Mortgage Loan Schedule to the Trustee. Upon
the
substitution, the Substitute Mortgage Loans shall be subject to
this Agreement
in all respects, and the Seller shall be deemed to have made with
respect to
the Substitute Mortgage Loans, as of the date of substitution,
the
representations and warranties made pursuant to Section 2.03(b)
with respect
to the Mortgage Loan. Upon any substitution and the deposit to the
Certificate
Account of the amount required to be deposited therein in
connection with the
substitution as described in the following paragraph, the Trustee
shall
release the Mortgage File held for the benefit of the
Certificateholders
relating to the Deleted Mortgage Loan to the Seller and shall
execute and
deliver at the Seller's direction such instruments of transfer or
assignment
prepared by the Seller, in each case without recourse, as shall be
necessary
to vest title in the Seller, or its designee, the Trustee's
interest in any
Deleted Mortgage Loan substituted for pursuant to this Section
2.03.
For
any month in which the Seller substitutes one or more
Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer
will
determine the amount (if any) by which the aggregate principal
balance of all
such Substitute Mortgage Loans as of the date of substitution is
less than the
aggregate Stated Principal Balance of all such Deleted Mortgage
Loans (after
application of the scheduled principal portion of the monthly
payments due in
the month of substitution). The amount of such shortage (the
"Substitution
Adjustment Amount") plus, if the Seller is not the Servicer, an
amount equal
to the aggregate of any unreimbursed Advances and Servicer Advances
with
respect to such Deleted Mortgage Loans shall be deposited into the
Certificate
Account by the Seller by the Distribution Account Deposit Date for
the
Distribution Date in the month succeeding the calendar month during
which the
related Mortgage Loan became required to be purchased or replaced
hereunder.
If the Seller repurchases a Mortgage Loan, the Purchase Price
therefor shall
be deposited in the Certificate Account pursuant to Section 3.06 by
the
Distribution Account Deposit Date for the Distribution Date in the
month
following the month during which the Seller became obligated
hereunder to
repurchase or replace the Mortgage Loan and upon such deposit of
the Purchase
Price and receipt of a Request for Release in the form of Exhibit
N, the
Trustee shall release the related Mortgage File held for the
benefit of the
Certificateholders to such Person, and the Trustee shall execute
and deliver
at such Person's direction such instruments of transfer or
assignment prepared
by such Person, in each case without recourse, as shall be
necessary to
transfer title from the Trustee. The obligation under this
Agreement of any
Person to cure, repurchase, or replace any Mortgage Loan as to
which a breach
has occurred and is continuing shall constitute the sole remedy
against the
Person respecting the breach available to Certificateholders, the
Depositor,
or the Trustee on their behalf.
The
representations and warranties made pursuant to this Section
2.03
shall survive delivery of the respective Mortgage Files to the
Trustee for the
benefit of the Certificateholders.
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 its 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 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
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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.
The
Depositor represents and warrants to the Trustee with respect to
each
Mortgage Loan as of the date of this Agreement or such other date
set forth in
this Agreement that as of the Closing Date, and following the
transfer of the
Mortgage Loans to it by the Seller, the Depositor had good title to
the
Mortgage Loans and the Mortgage Notes were subject to no offsets,
defenses, or
counterclaims.
The
representations and warranties in this Section 2.04 shall
survive
delivery of the Mortgage Files to the Trustee. Upon discovery by
the Depositor
or the Trustee of any breach of any of the representations and
warranties in
this Section that materially and adversely affects the interest of
the
Certificateholders, the party discovering the breach shall give
prompt written
notice to the others and to each Rating Agency.
Section 2.05 Delivery
of Opinion of Counsel in Connection with
Substitutions.
(a)
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or 2.03 shall be made more
than 90 days
after the Closing Date unless the Seller delivers to the Trustee an
Opinion of
Counsel, which Opinion of Counsel shall not be at the expense of
either the
Trustee or the Trust Fund, addressed to the Trustee, to the effect
that such
substitution will not (i) result in the imposition of the tax on
"prohibited
transactions" on the Trust Fund or contributions after the Startup
Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code,
respectively or (ii)
cause any REMIC created under this Agreement to fail to qualify as
a REMIC at
any time that any Certificates are outstanding.
(b)
Upon discovery by the Depositor, the Seller, the Servicer or
the
Trustee that any Mortgage Loan does not constitute a "qualified
mortgage"
within the meaning of section 860G(a)(3) of the Code, the party
discovering
such fact shall promptly (and in any event within five Business
Days of
discovery) give written notice thereof to the other parties. In
connection
therewith, the Trustee shall require the Seller, at the Seller's
option, to
either (i) substitute, if the conditions in Section 2.03(c) with
respect to
substitutions are satisfied, a Substitute Mortgage Loan for the
affected
Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within
90 days of
such discovery in the same manner as it would a Mortgage Loan for a
breach of
representation or warranty made pursuant to Section 2.03. The
Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant
hereto in the
same manner, and on the same terms and conditions, as it would a
Mortgage Loan
repurchased for breach of a representation or warranty contained in
Section
2.03.
Section 2.06 Execution and Delivery of Certificates.
The
Trustee acknowledges the transfer and assignment to it of the
Trust
Fund and, concurrently with such transfer and assignment, has
executed and
delivered to or upon the order of the Depositor, the
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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.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 3.01 Servicer to Service Mortgage Loans.
For
and on behalf of the Certificateholders, the Servicer shall
service
and administer the Mortgage Loans in accordance with this Agreement
and the
Servicing Standard.
The
Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any
REMIC created
under this Agreement to fail to qualify as a REMIC or result in the
imposition
of any tax under section 860F(a) or section 860G(d) of the
Code.
Without limiting the generality of the foregoing, the Servicer, in
its
own name or in the name of the Depositor and the Trustee, is hereby
authorized
and empowered by the Depositor and the Trustee, when the Servicer
believes it
appropriate in its reasonable judgment, to execute and deliver, on
behalf of
the Trustee, the Depositor, the Certificateholders, or any of them,
any
instruments of satisfaction or cancellation, or of partial or full
release or
discharge, and all other comparable instruments, with respect to
the Mortgage
Loans, and with respect to the Mortgaged Properties held for the
benefit of
the Certificateholders. The Servicer shall prepare and deliver to
the
Depositor or the Trustee any documents requiring execution and
delivery by
either or both of them appropriate to enable the Servicer to
service and
administer the Mortgage Loans to the extent that the Servicer is
not permitted
to execute and deliver such documents pursuant to the preceding
sentence. Upon
receipt of the documents, the Depositor or the Trustee shall
execute the
documents and deliver them to the Servicer.
The
Servicer further is authorized and empowered by the Trustee, on
behalf of the Certificateholders and the Trustee, in its own name,
when the
Servicer believes it appropriate in its best judgment to register
any Mortgage
Loan on the MERS(R) System, or cause the removal from the
registration of any
Mortgage Loan on the MERS(R) System, to execute and deliver, on
behalf of the
Trustee and the Certificateholders or any of them, any and all
instruments of
assignment and other comparable instruments with respect to such
assignment or
re-recording of a Mortgage in the name of MERS, solely as nominee
for the
Trustee and its successors and assigns.
In
accordance with and to the extent of the Servicing Standard,
the
Servicer shall advance funds necessary to effect the payment of
taxes and
assessments on the Mortgaged Properties, which advances shall be
reimbursable
in the first instance from related collections from the Mortgagors
pursuant to
Section 3.07, and further as provided in Section 3.09. The costs
incurred by
the Servicer in effecting the timely payments of taxes and
assessments on the
Mortgaged Properties and related insurance premiums shall not, for
the purpose
of calculating monthly distributions to the Certificateholders, be
added to
the Stated Principal Balances of the related Mortgage Loans,
notwithstanding
that the Mortgage Loans so permit.
Nothing in this Agreement to the contrary shall limit the Servicer
from
undertaking any legal action that it may deem appropriate with
respect to the
Mortgage Loans including, without limitation, any rights or causes
of action
arising out of the origination of the Mortgage Loans.
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Section 3.02 [Reserved].
Section 3.03 Rights of the Depositor and the Trustee in Respect of
the
Servicer.
The Depositor may, but
is not obligated to, enforce the obligations of
the Servicer under this Agreement and may, but is not obligated to,
perform,
or cause a designee to perform, any defaulted obligation of the
Servicer under
this Agreement and in connection with any such defaulted obligation
to
exercise the related rights of the Servicer under this Agreement;
provided
that the Servicer shall not be relieved of any of its obligations
under this
Agreement by virtue of such performance by the Depositor or its
designee.
Neither the Trustee nor the Depositor shall have any responsibility
or
liability for any action or failure to act by the Servicer nor
shall the
Trustee or the Depositor be obligated to supervise the performance
of the
Servicer under this Agreement or otherwise.
Section 3.04 [Reserved].
Section 3.05 Trustee to Act as Servicer.
If
the Servicer for any reason is no longer the Servicer under
this
Agreement (including because of the occurrence or existence of an
Event of
Default 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; Certificate
Account;
Distribution Account.
(a)
In accordance with and to the extent of the Servicing Standard,
the
Servicer shall make reasonable efforts in accordance with the
customary and
usual standards of practice of prudent mortgage servicers to
collect all
payments called for under the Mortgage Loans to the extent the
procedures are
consistent with this Agreement and any related Required Insurance
Policy.
Consistent with the foregoing, the Servicer may in its discretion
(i) waive
any late payment charge or, subject to Section 3.20, any Prepayment
Charge in
connection with the prepayment of a Mortgage Loan and (ii) extend
the due
dates for payments due on a Delinquent Mortgage Loan for a period
not greater
than 125 days. In connection with a seriously delinquent or
defaulted Mortgage
Loan, the Servicer may, consistent with the Servicing
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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)
[Reserved].
(c)
[Reserved].
(d)
The Servicer shall establish and maintain a Certificate Account
into
which the Servicer shall deposit on a daily basis (1) within two
Business Days
of receipt (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;
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(vi) all Purchase Prices from the Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Servicer pursuant to Section
4.01;
(viii) any other amounts required to be deposited under this
Agreement; and
(ix) all Prepayment Charges collected.
In
addition, with respect to any Mortgage Loan that is subject to
a
buydown agreement, on each Due Date for the Mortgage Loan, in
addition to the
monthly payment remitted by the Mortgagor, the Servicer shall cause
funds to
be deposited into the Certificate Account in an amount required to
cause an
amount of interest to be paid with respect to the Mortgage Loan
equal to the
amount of interest that has accrued on the Mortgage Loan from the
preceding
Due Date at the Mortgage Rate net of the Servicing Fee Rate on that
date.
The
foregoing requirements for remittance by the Servicer shall be
exclusive, it being understood and agreed that, without limiting
the
generality of the foregoing, payments in the nature of late payment
charges or
assumption fees, if collected, need not be remitted by the
Servicer. If the
Servicer remits any amount not required to be remitted, it may at
any time
withdraw that amount from the Certificate Account, any provision in
this
Agreement to the contrary notwithstanding. The withdrawal or
direction may be
accomplished by delivering written notice of it to the Trustee or
any other
institution maintaining the Certificate Account that describes the
amounts
deposited in error in the Certificate Account. The Servicer shall
maintain
adequate records with respect to all withdrawals made pursuant to
this Section
3.06. All funds deposited in the Certificate Account shall be held
in trust
for the Certificateholders until withdrawn in accordance with
Section 3.09.
(e)
The Trustee shall establish and maintain the Distribution Account
on
behalf of the Certificateholders. The Trustee shall, promptly upon
receipt,
deposit in the Distribution Account and retain in the Distribution
Account the
following:
(i) the aggregate amount remitted by the Servicer to the
Trustee
pursuant to Section 3.09(a);
(ii) any amount deposited by the Servicer pursuant to Section
3.06(f) in connection with any losses on Permitted Investments;
and
(iii) any other amounts deposited under this Agreement that are
required to be deposited in the Distribution Account.
If
the Servicer remits any amount not required to be remitted, it may
at
any time direct the Trustee in writing to withdraw that amount from
the
Distribution Account, any provision in this Agreement to the
contrary
notwithstanding. The direction may be accomplished by delivering an
Officer's
Certificate to the Trustee that describes the amounts deposited in
error in
the Distribution Account. All funds deposited in the Distribution
Account
shall be held by the Trustee in trust for the Certificateholders
until
disbursed in accordance with this Agreement or withdrawn in
accordance with
Section 3.09. In no event shall the Trustee incur liability for
withdrawals
from the Distribution Account at the direction of the Servicer.
(f)
Each institution at which the Certificate Account is maintained
shall
invest the funds in such account as directed in writing by the
Servicer in
Permitted Investments, which shall mature not later than
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the second Business Day preceding the related Distribution Account
Deposit
Date (except that if the Permitted Investment is an obligation of
the
institution that maintains the account, then the Permitted
Investment shall
mature not later than the Business Day preceding the Distribution
Account
Deposit Date) and which shall not be sold or disposed of before its
maturity.
The funds in the Distribution Account shall remain uninvested. All
such
Permitted Investments shall be made in the name of the Trustee, for
the
benefit of the Certificateholders. All income realized from any
such
investment of funds on deposit in the Certificate Account shall be
for the
benefit of the Servicer as servicing compensation and shall be
remitted to it
monthly as provided in this Agreement. The amount of any realized
losses on
Permitted Investments in the Certificate Account shall promptly be
deposited
by the Servicer in the Certificate Account. The Trustee shall not
be liable
for the amount of any loss incurred in respect of any investment or
lack of
investment of funds held in the Certificate Account and made in
accordance
with this Section 3.06.
(g)
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.
Section 3.07 Collection of Taxes, Assessments and Similar Items;
Escrow
Accounts.
(a)
To the extent required by the related Mortgage Note and not
violative
of current law, the Servicer shall establish and maintain one or
more accounts
(each, an "Escrow Account") and deposit and retain therein all
collections
from the Mortgagors (or advances) for the payment of taxes,
assessments,
hazard insurance premiums or comparable items for the account of
the
Mortgagors. Nothing herein shall require the Servicer to compel a
Mortgagor to
establish an Escrow Account in violation of applicable law.
(b)
Withdrawals of amounts so collected from the Escrow Accounts may
be
made only to effect timely payment of taxes, assessments, hazard
insurance
premiums, condominium or PUD association dues, or comparable items,
to
reimburse (without duplication) the Servicer out of related
collections for
any payments made pursuant to Section 3.01 (with respect to taxes
and
assessments and insurance premiums) and Section 3.10 (with respect
to hazard
insurance), to refund to any Mortgagors any sums determined to be
overages, to
pay interest, if required by law or the related Mortgage or
Mortgage Note, to
Mortgagors on balances in the Escrow Account or to clear and
terminate the
Escrow Account at the termination of this Agreement in accordance
with Section
9.01. The Escrow Accounts shall not be a part of the Trust
Fund.
(c)
The Servicer shall advance any payments referred to in Section
3.07(a) that are not timely paid by the Mortgagors or advanced by
the Servicer
on the date when the tax, premium or other cost for which such
payment is
intended is due, but the Servicer shall be required so to advance
only to the
extent that such advances, in the good faith judgment of the
Servicer, will be
recoverable by the Servicer out of Insurance Proceeds, Liquidation
Proceeds or
otherwise.
Section 3.08 Access to Certain Documentation and Information
Regarding
the Mortgage Loans.
The Servicer shall
afford the Depositor and the Trustee reasonable access
to all records and documentation regarding the Mortgage Loans and
all
accounts, insurance information and other matters relating to this
Agreement,
such access being afforded without charge, but only upon reasonable
request
and during normal business hours at the office designated by the
Servicer.
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Upon
reasonable advance notice in writing, the Servicer will provide
to
each Certificateholder or Certificate Owner that is a savings and
loan
association, bank, or insurance company certain reports and
reasonable access
to information and documentation regarding the Mortgage Loans
sufficient to
permit the Certificateholder or Certificate Owner to comply with
applicable
regulations of the OTS or other regulatory authorities with respect
to
investment in the Certificates. The Servicer shall be entitled to
be
reimbursed by each such Certificateholder or Certificate Owner for
actual
expenses incurred by the Servicer in providing the reports and
access.
Section 3.09 Permitted Withdrawals from the Certificate Account and
the
Distribution Account.
(a)
The Servicer may (and, in the case of clause (ix) below, shall)
from
time to time make withdrawals from the Certificate Account for the
following
purposes:
(i) to pay to the Servicer (to the extent not previously
retained)
the
servicing compensation to which it is entitled pursuant to
Section
3.15, and to pay to the Servicer, as additional 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 Advances made in respect of a Mortgage
Loan
for
which such Servicing Advances are not recoverable from the
Mortgagor
and
(c) for unpaid Servicing Fees as provided in Section 3.12;
(vi) to pay to
the purchaser, with respect to each Mortgage Loan or
property acquired in respect of such Mortgage Loan that has
been
purchased pursuant to Section 2.02, 2.03, or 3.12, all amounts
received
thereon after the date of such purchase;
(vii) to reimburse the Seller, the Servicer, or the Depositor
for
expenses incurred by any of them and reimbursable pursuant to
Section
6.03;
(viii) to withdraw any amount deposited in the Certificate
Account
and
not required to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
the
Available Funds and the Trustee Fee for the Distribution Date, to
the
extent on deposit, and (2) the Prepayment Charges, and remit such
amount
to
the Trustee for deposit in the Distribution Account; and
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(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.
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
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replacement value of the improvements that are part of the
Mortgaged Property,
and (iii) the maximum amount of flood insurance available for the
related
Mortgaged Property under the national flood insurance program.
If
the Servicer obtains and maintains a blanket policy insuring
against
hazard losses on all of the Mortgage Loans, it shall have satisfied
its
obligations in the first sentence of this Section 3.10. The policy
may contain
a deductible clause on terms substantially equivalent to those
commercially
available and maintained by comparable servicers. If the policy
contains a
deductible clause and a policy complying with the first sentence of
this
Section 3.10 has not been maintained on the related Mortgaged
Property, and if
a loss that would have been covered by the required policy occurs,
the
Servicer shall deposit in the Certificate Account, without any
right of
reimbursement, the amount not otherwise payable under the blanket
policy
because of the deductible clause. In connection with its activities
as
Servicer of the Mortgage Loans, the Servicer agrees to present, on
behalf of
itself, the Depositor, and the Trustee for the benefit of the
Certificateholders, claims under any blanket policy.
(b)
The Servicer shall not take any action that would result in
non-coverage under any applicable Primary Insurance Policy of any
loss that,
but for the actions of the Servicer, would have been 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.
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
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remains liable thereon. The Mortgage Loan must continue to be
covered (if so
covered before the Servicer enters into the agreement) by the
applicable
Required Insurance Policies.
The
Servicer, subject to Section 3.11(b), is also authorized with
the
prior approval of the insurers under any Required Insurance
Policies to enter
into a substitution of liability agreement with the Person,
pursuant to which
the original Mortgagor is released from liability and the Person
is
substituted as Mortgagor and becomes liable under the Mortgage
Note.
Notwithstanding the foregoing, the Servicer shall not be deemed to
be in
default under this Section 3.11 because of any transfer or
assumption that the
Servicer reasonably believes it is restricted by law from
preventing, for any
reason whatsoever.
(b)
Subject to the Servicer's duty to enforce any due-on-sale clause
to
the extent set forth in Section 3.11(a), in any case in which a
Mortgaged
Property has been conveyed to a Person by a Mortgagor, and the
Person is to
enter into an assumption agreement or modification agreement or
supplement to
the Mortgage Note or Mortgage that requires the signature of the
Trustee, or
if an instrument of release signed by the Trustee is required
releasing the
Mortgagor from liability on the Mortgage Loan, the Servicer shall
prepare and
deliver to the Trustee for signature and shall direct the Trustee,
in writing,
to execute the assumption agreement with the Person to whom the
Mortgaged
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
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acquiring in foreclosure or by deed in lieu of foreclosure is
located within a
one mile radius of any site listed in the Expenditure Plan for the
Hazardous
Substance Clean Up Bond Act of 1984 or other site with
environmental or
hazardous waste risks known to the Servicer, the Servicer will,
before
acquiring the Mortgaged Property, consider the risks and only take
action in
accordance with its established environmental review
procedures.
With
respect to any REO Property, the deed or certificate of sale
shall
be taken in the name of the Trustee for the benefit of the
Certificateholders,
or its nominee, on behalf of the Certificateholders. The Trustee's
name shall
be placed on the title to the REO Property solely as the Trustee
hereunder and
not in its individual capacity. The Servicer shall ensure that the
title to
the REO Property references the Pooling and Servicing Agreement and
the
Trustee's capacity hereunder. Pursuant to its efforts to sell the
REO
Property, the Servicer shall either itself or through an agent
selected by the
Servicer protect and conserve the REO Property in accordance with
the
Servicing Standard.
The
Servicer shall perform the tax reporting and withholding required
by
sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by section 6050H of the
Code with
respect to the receipt of mortgage interest from individuals and,
if required
by section 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.
