EXHIBIT 99.1
____________
The Pooling and Servicing Agreement
<PAGE>
================================================================================
INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
________________________________________
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2007
________________________________________
RESIDENTIAL ASSET SECURITIZATION TRUST
Series 2007-A3
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2007-C
================================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S>
<C>
<C>
ARTICLE ONE
DEFINITIONS...........................................................................................................9
Section 1.01
Definitions........................................................................................9
Section 1.02
Rules of
Construction.............................................................................40
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES.........................................................42
Section 2.01
Conveyance of Mortgage
Loans......................................................................42
Section 2.02
Acceptance by the Trustee of the Mortgage
Loans...................................................45
Section 2.03
Representations, Warranties, and Covenants of the Seller and the
Servicer.........................47
Section 2.04
Representations and Warranties of the Depositor as to the Mortgage
Loans..........................49
Section 2.05
Delivery of Opinion of Counsel in Connection with
Substitutions...................................49
Section 2.06
Execution and Delivery of
Certificates............................................................49
Section 2.07
REMIC
Matters.....................................................................................50
ARTICLE THREE ADMINISTRATION AND SERVICING OF MORTGAGE
LOANS.....................................................................51
Section 3.01
Servicer to Service Mortgage
Loans................................................................51
Section 3.02
[Reserved]........................................................................................52
Section 3.03
Rights of the Depositor and the Trustee in Respect of the
Servicer................................52
Section 3.04
[Reserved]........................................................................................52
Section 3.05
Trustee to Act as
Servicer........................................................................52
Section 3.06
Collection of Mortgage Loan Payments; Certificate Account;
Distribution Account...................52
Section 3.07
Collection of Taxes, Assessments and Similar Items; Escrow
Accounts...............................55
Section 3.08
Access to Certain Documentation and Information Regarding the
Mortgage Loans......................56
Section 3.09
Permitted Withdrawals from the Certificate Account and the
Distribution Account...................56
Section 3.10
Maintenance of Hazard Insurance; Maintenance of Primary Insurance
Policies........................57
Section 3.11
Enforcement of Due-On-Sale Clauses; Assumption
Agreements.........................................58
Section 3.12
Realization Upon Defaulted Mortgage
Loans.........................................................59
Section 3.13
Trustee to Cooperate; Release of Mortgage
Files...................................................61
Section 3.14
Documents, Records and Funds in Possession of the Servicer to be
Held for the Trustee.............62
Section 3.15
Servicing
Compensation............................................................................62
Section 3.16
Access to Certain
Documentation...................................................................63
Section 3.17
Annual Statement as to
Compliance.................................................................63
Section 3.18
Errors and Omissions Insurance; Fidelity
Bonds....................................................63
Section 3.19
[Reserved]........................................................................................64
Section 3.20
Prepayment
Charges................................................................................64
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY THE
SERVICER..........................................................................65
i
<PAGE>
Section 4.01
Advances..........................................................................................65
Section 4.02
Priorities of
Distribution........................................................................66
Section 4.03
Cross-Collateralization; Adjustments to Available
Funds...........................................70
Section 4.04
[Reserved]........................................................................................71
Section 4.05
Allocation of Realized
Losses.....................................................................71
Section 4.06
Monthly Statements to
Certificateholders..........................................................72
Section 4.07
[Reserved]........................................................................................75
Section 4.08
[Reserved]........................................................................................75
Section 4.09
Determination of Pass-Through Rates for LIBOR
Certificates........................................75
ARTICLE FIVE THE
CERTIFICATES....................................................................................................77
Section 5.01
The
Certificates..................................................................................77
Section 5.02
Certificate Register; Registration of Transfer and Exchange of
Certificates.......................77
Section 5.03
Mutilated, Destroyed, Lost or Stolen
Certificates.................................................81
Section 5.04
Persons Deemed
Owners.............................................................................81
Section 5.05
Access to List of Certificateholders' Names and
Addresses.........................................81
Section 5.06
Maintenance of Office or
Agency...................................................................82
ARTICLE SIX THE DEPOSITOR AND THE
SERVICER.......................................................................................83
Section 6.01
Respective Liabilities of the Depositor and the
Servicer..........................................83
Section 6.02
Merger or Consolidation of the Depositor or the
Servicer..........................................83
Section 6.03
Limitation on Liability of the Depositor, the Seller, the Servicer,
and Others....................83
Section 6.04
Limitation on Resignation of the
Servicer.........................................................84
ARTICLE SEVEN DEFAULT
...........................................................................................................85
Section 7.01
Events of
Default.................................................................................85
Section 7.02
Trustee to Act; Appointment of
Successor..........................................................86
Section 7.03
Notification to
Certificateholders................................................................87
ARTICLE EIGHT CONCERNING THE
TRUSTEE.............................................................................................89
Section 8.01
Duties of the
Trustee.............................................................................89
Section 8.02
Certain Matters Affecting the
Trustee.............................................................89
Section 8.03
Trustee Not Liable for Certificates or Mortgage
Loans.............................................91
Section 8.04
Trustee May Own
Certificates......................................................................91
Section 8.05
Trustee's Fees and
Expenses.......................................................................91
Section 8.06
Eligibility Requirements for the
Trustee..........................................................92
Section 8.07
Resignation and Removal of the
Trustee............................................................92
Section 8.08
Successor
Trustee.................................................................................93
Section 8.09
Merger or Consolidation of the
Trustee............................................................94
Section 8.10
Appointment of Co-Trustee or Separate
Trustee.....................................................94
Section 8.11
Tax
Matters.......................................................................................95
ARTICLE NINE
TERMINATION.........................................................................................................98
Section 9.01
Termination upon Liquidation or Purchase of the Mortgage
Loans....................................98
ii
<PAGE>
Section 9.02
Final Distribution on the
Certificates............................................................98
Section 9.03
Additional Termination
Requirements...............................................................99
ARTICLE TEN MISCELLANEOUS
PROVISIONS............................................................................................101
Section 10.01
Amendment........................................................................................101
Section 10.02
Recordation of Agreement;
Counterparts...........................................................102
Section 10.03
Governing
Law....................................................................................103
Section 10.04
Intention of
Parties.............................................................................103
Section 10.05
Notices
.........................................................................................103
Section 10.06
Severability of
Provisions.......................................................................104
Section 10.07
Assignment.......................................................................................104
Section 10.08
Limitation on Rights of
Certificateholders.......................................................104
Section 10.09
Inspection and Audit
Rights......................................................................105
Section 10.10
Certificates Nonassessable and Fully
Paid........................................................105
Section 10.11
Official
Record..................................................................................105
Section 10.12
Protection of
Assets.............................................................................106
Section 10.13
Qualifying Special Purpose
Entity................................................................106
ARTICLE ELEVEN EXCHANGE ACT
REPORTING...........................................................................................107
Section 11.01
Filing
Obligations...............................................................................107
Section 11.02 Form
10-D
Filings................................................................................107
Section 11.03 Form
8-K
Filings.................................................................................108
Section 11.04 Form
10-K
Filings................................................................................108
Section 11.05
Sarbanes-Oxley
Certification.....................................................................111
Section 11.06 Form
15
Filing...................................................................................111
Section 11.07
Report on Assessment of Compliance and
Attestation...............................................111
Section 11.08 Use
of
Subcontractors............................................................................112
Section 11.09
Amendments.......................................................................................113
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 (other than the Notional Amount
Certificates)...............................A-1
Exhibit B:
Form of Subordinated
Certificate.......................................................................B-1
Exhibit C:
Form of Class A-R
Certificate..........................................................................C-1
Exhibit D:
Form of Notional Amount
Certificate....................................................................D-1
Exhibit E:
Form of Reverse of
Certificates........................................................................E-1
Exhibit F:
[Reserved].............................................................................................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-1:
Form of Certification to be Provided by the Depositor with Form
10-K.................................O-1-1
Exhibit O-2:
Form of Trustee's Officer's
Certificate..............................................................O-2-1
Exhibit P:
[Reserved].............................................................................................P-1
iv
<PAGE>
Exhibit Q:
Reporting
Responsibility...............................................................................Q-1
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 1119
Parties...................................................................................T-1
Exhibit U:
Form of Sarbanes-Oxley Certification (Replacement of
Servicer).........................................U-1
v
</TABLE>
<PAGE>
THIS
POOLING AND SERVICING AGREEMENT, dated as of February 1, 2007,
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
(in that capacity, the "Trustee"),
W I T N E S S E T H T H A T
In
consideration of the mutual agreements set forth in this Agreement,
the
parties agree as follows:
P R E L I M I N A R Y S T A T E M E N T
The
Depositor is the owner of the Trust Fund that is hereby conveyed
to
the Trustee in return for the Certificates. The Trust Fund for
federal income
tax purposes will consist of four REMICs ("REMIC 1", "REMIC 2",
"REMIC 3" and
the "Master REMIC"). Each Certificate, other than the Class A-R
Certificate,
will represent ownership of one or more regular interests in the
Master REMIC
for purposes of the REMIC Provisions. The Class A-R Certificate
represents
ownership of the sole class of residual interest in each REMIC
created
hereunder. The Master REMIC will hold as assets the REMIC 3 Regular
Interests.
REMIC 3 will hold as assets the REMIC 2 Regular Interests. REMIC 2
will hold as
assets the REMIC 1 Regular Interests. REMIC 1 will hold as assets
all property
of the Trust Fund. For federal income tax purposes, each
Certificate (other than
the Class A-R Certificate) is hereby designated as a regular
interest in the
Master REMIC and each REMIC 1 Regular Interest, REMIC 2 Regular
Interest and
REMIC 3 Regular Interest, as defined below, is designated as a
regular interest
in the REMIC 1, REMIC 2, and REMIC 3, respectively. 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 2-A-2 Certificates
pursuant to Section
3.20(b) hereof will be treated as paid directly by the Servicer to
the Class
2-A-2 Certificates and not as paid by or through any REMIC created
hereunder.
REMIC 1
REMIC 1
will issue a single regular interest corresponding to each
Mortgage Loan having an Adjusted Net Mortgage Rate less than or
equal to 5.75%,
two regular interests (referred to collectively herein as the
"Class 1-A
Interests" and the "Class 1-B Interests") for each Mortgage Loan
having an
Adjusted Net Mortgage Rate greater than 5.75% and less than
7.00%.
Each REMIC
1 Regular Interest corresponding to a Mortgage Loan having an
Adjusted Net Mortgage Rate less than or equal to 5.75% and each
Class 1-A
Interest will have a Pass Through Rate of 5.75% and a principal
balance,
following the allocation of scheduled principal, prepayments of
principal and
Realized Losses, equal to the product of: (i) the Applicable
Fraction in respect
of Collateral Allocation Group 1 and (ii) the principal balance of
the related
Mortgage Loan. For purposes of the calculating the Calculation
Rate, each of the
foregoing REMIC 1 Regular Interests will be treated as part of
Collateral
Allocation Group 1.
Each of
the Class 1-B Interests will have a Pass Through Rate of 7.00%
and
a principal balance, following the allocation of scheduled
principal,
prepayments of principal and Realized Losses, equal to the product
of: (i) the
Applicable Fraction in respect of Collateral Allocation Group 2 and
(ii) the
1
<PAGE>
principal balance of the related Mortgage Loan. For purposes of the
calculating
the Calculation Rate, each Class 1-B Interest will be treated as
part of
Collateral Allocation Group 2.
REMIC 1 also will issue the Class 1-PO, Class 1-$100 Interest
and
Class R-1 Interest. The Class 1-PO Interests will have a principal
balance,
following the allocation of scheduled principal, prepayments of
principal and
Realized Losses, equal to the principal balance of the Class PO
Certificates and
will not be entitled to receive distributions of interest. The
Class 1-$100
Interest will have a principal balance and pass through rate equal
to the Class
A-R Certificates. The Class R-1 Interest is the residual interest
and will not
be entitled to any distributions of interest or principal.
REMIC 2
The REMIC
2 Regular Interests will have the initial principal balance,
Pass-Through Rates and corresponding Collateral Allocation Groups
as set forth
in the following table:
<TABLE>
<CAPTION>
===========================================================
====================
=================
========================
Initial Principal
Corresponding Collateral
REMIC 2 Interests
Balance
Pass-Through
Rate Allocation
Group
___________________________________________________________
____________________
_________________
________________________
<S>
<C>
<C>
<C>
A-1 (0.9% of AB
Collateral Allocation Group 1)
(1)
5.75%
1
___________________________________________________________
____________________
_________________
________________________
B-1 (0.1% of AB
Collateral Allocation Group 1)
(1)
5.75%
1
___________________________________________________________
____________________
_________________
________________________
C-1 (Excess of
Collateral Allocation Group 1)
(1)
5.75%
1
___________________________________________________________
____________________
_________________
________________________
2-PO
(1)
0.00%
N/A
___________________________________________________________
____________________
_________________
________________________
A-2 (0.9% of AB
Collateral Allocation Group 2)
(1)
7.00%
2
___________________________________________________________
____________________
_________________
________________________
B-2 (0.1% of AB
Collateral Allocation Group 2)
(1)
7.00%
2
___________________________________________________________
____________________
_________________
________________________
C-2 (Excess of
Collateral Allocation Group 2)
(1)
7.00%
2
___________________________________________________________
____________________
_________________
________________________
2-$100
$100
5.75%
N/A
___________________________________________________________
____________________
_________________
________________________
R-2
(2)
(2)
N/A
===========================================================
====================
=================
============++==========
</TABLE>
(1) Each Class A
Interest will have a principal balance initially equal to
0.9% of
the Assumed Balance ("AB") of its corresponding Collateral
Allocation
Group. Each Class B Interest will have a principal balance
initially
equal to 0.1% of the AB of its corresponding Collateral
Allocation
Group. The initial principal balance of each Class C Interest
will equal
the excess of the initial aggregate principal balance of its
corresponding Collateral Allocation Group over the initial
aggregate
principal
balances of the Class A and Class B Interests (and the 2-$100
Interest
in the case of the Class C-1 Interest) corresponding to such
Collateral
Allocation Group. On each Distribution Date following the
allocation
of scheduled principal, prepayments and Realized Losses, the
Class 2-PO
and 2-$100 Interests will have the principal balances of the
Class PO
and Class A-R Certificates, respectively.
(2) 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.
On each
Distribution Date, interest and principal collections that are
not
allocated to the Class 2-PO Interests shall be distributed with
respect to the
REMIC 2 Interests in the following manner:
(1) Interest is
to be distributed with respect to each REMIC 2 Interest
according
to the formulas described above;
2
<PAGE>
(2) If a
Cross-Over Situation does not exist with respect to any Class
of
Interests,
then Principal Amounts and Realized Losses arising with respect
to each
Collateral Allocation Group will be allocated: first to cause
the
Collateral
Allocation Group's corresponding Class A and Class B to equal,
respectively, 0.9% of the AB and 0.1% of the AB; and second to
the
Collateral
Allocation Group's corresponding Class C Interest;
(3) If a
Cross-Over Situation exists with respect to the Class A and B
Interests
then:
(a)
if the
Calculation Rate in respect of such Class A and Class B
Interests is less than the Pass Through Rate in respect of the
Subordinate Certificates, Principal Relocation Payments will be
made
proportionately to the outstanding Class A Interests prior to
any
other distributions of principal from each such Collateral
Allocation Group; and
(b)
if the
Calculation Rate in respect of such outstanding Class A and
Class B Interests is greater than the Pass Through Rate in
respect
of the Subordinate Certificates, Principal Relocation Payments
will
be made proportionately to the outstanding Class B Interests
prior
to any other distributions of principal from each such
Collateral
Allocation 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 B
Interests to equal the Pass Through Rate in respect of the
Subordinate Certificates. With respect to each Collateral
Allocation
Group, 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 Collateral Allocation
Group,
are
insufficient to make the necessary reductions of principal on
the
Class A
and B Interests, then interest will be added to the Collateral
Allocation
Group's other REMIC 1 Interests that are not receiving
Principal
Relocation Payments, in proportion to their principal balances.
(c)
Unless required
to achieve the Calculation Rate, the outstanding
aggregate Class A and B Interests will not be reduced below 1%
of
the excess of (i) the aggregate Stated Principal Balance of the
Mortgage Loans as of the end of any Due Period over (ii) the
Certificate Balance Senior Certificates (excluding the Class
A-R
Certificates) 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
Collateral
Allocation Group, and if the Collateral Allocation Group's
Class C
Interest has already been reduced to zero, then the excess
principal
from that Collateral Allocation Group will be paid to the Class
C
Interests of the other Collateral Allocation Group, the aggregate
Class
A and
Class B Interests of which are less than 1% of the AB. If the
Mortgage
Loans in the Collateral Allocation 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 Mortgage
Loans in
the Collateral Allocation Group making the payment, then the
payment
will be treated by the REMIC 2 as a Realized Loss. Conversely,
if
the
Mortgage Loans in the Collateral Allocation Group of the Class
C
Interest
that receives such payment have a weighted average Adjusted Net
Mortgage
Rate above the weighted average Adjusted Net Mortgage Rate of
the
Mortgage
Loans in the Collateral Allocation Group making the payment,
then
the
payment will be treated by the REMIC 2 as a reimbursement for
prior
Realized
Losses.
3
<PAGE>
REMIC 3
The
following table sets forth characteristics of the REMIC 3
Regular
Interests:
<TABLE>
<CAPTION>
================================================================================
Class
Principal
Pass-Through Allocation of
Allocation
Class Designation Balance
Rate
Interest of
Principal
--------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
Class 3-1-A-1
(1)
5.75%
Class 1-A-1, Class 1-A-1,
1-A-2
1-A-2
--------------------------------------------------------------------------------
Class 3-1-A-3
(1)
5.75%
Class 1-A-3 Class 1-A-3
--------------------------------------------------------------------------------
Class 3-1-A-4
(1)
5.75%
Class 1-A-4 Class 1-A-4
--------------------------------------------------------------------------------
Class 3-2-A-1
(1)
7.00%
Class 2-A-1, Class 2-A-1
Class 2-A-2
--------------------------------------------------------------------------------
Class 3-PO
(1)
0.00%
N/A
Class PO
--------------------------------------------------------------------------------
Class 3-$100
(1)
5.75%
Class A-R
Class A-R
--------------------------------------------------------------------------------
Class 3-B-1
(1)
Weighted
Class B-1
Class B-1
Average Rate -
0.3937% (2)
--------------------------------------------------------------------------------
Class 3-B-1IO
(1)
0.3937%
Class B-IO
N/A
--------------------------------------------------------------------------------
Class 3-B-2
(1)
Weighted
Class B-2
Class B-2
Average Rate -
0.1437% (2)
--------------------------------------------------------------------------------
Class 3-B-2IO
(1)
0.1437%
Class B-2IO
N/A
--------------------------------------------------------------------------------
Class 3-B-3
(1)
Weighted
Class B-3
Class B-3
Average Rate
(2)
--------------------------------------------------------------------------------
Class 3-B-4
(1)
Weighted
Class B-4
Class B-4
Average Rate
(2)
--------------------------------------------------------------------------------
Class 3-B-5
(1)
Weighted
Class B-5
Class B-5
Average Rate
(2)
--------------------------------------------------------------------------------
Class 3-B-6
(1)
Weighted
Class B-6
Class B-6
Average Rate
(2)
--------------------------------------------------------------------------------
Class R-3(3)
N/A
N/A
N/A
N/A
================================================================================
</TABLE>
(1) For each
Distribution Date, following the allocation of scheduled
principal,
Principal Prepayments and Realized Losses, the principal
balance
for each such Class will be the principal balance in respect of
the
corresponding Class of Certificates (or the sum of the
principal
balances
if there is more than one corresponding Class) set forth under
the Column
titled "Allocation of Principal".
(2) The Weighted
Average Rate for a Class of Subordinated Certificates for the
Interest
Accrual Period for any Distribution Date will be a per annum
rate
equal to
the sum of (i) 5.75% multiplied by the excess of the sum of the
related
Applicable Fraction for Collateral Allocation Group 1 of the
aggregate Stated
Principal Balance of each Mortgage Loan included in
Collateral
Allocation Group 1 as of the Due Date in the month preceding
the month
of that Distribution Date (after giving effect to Principal
Prepayments received in the Prepayment Period related to that prior
Due
Date) over
the Class Certificate Balance of the Group 1 Senior
Certificates immediately prior to that Distribution Date and (ii)
7.00%
multiplied
by the excess of the sum of the related Applicable Fraction for
Collateral
Allocation Group 2 of the aggregate Stated Principal Balance of
each
Mortgage Loan included in Collateral Allocation Group 2 as of the
Due
Date in
the prior month (after giving effect to Principal Prepayments
received
in the Prepayment Period related to that prior Due Date) over
the
aggregate
Class Certificate Balance of the Group 2 Senior Certificates
immediately prior to that Distribution Date, divided by the
aggregate
Class
Certificate
4
<PAGE>
Balance of
the Subordinated Certificates immediately prior to that
Distribution Date. The Pass-Through Rate for each class of
Subordinated
Certificates for the initial Interest Accrual Period is 6.3938% per
annum.
For
federal income tax purposes, the Pass-Through Rate for each class
of
Subordinated Certificates shall equal the Calculation Rate.
(3) The Class
R-3 Interest is the sole class of residual interest in REMIC 3.
It has no
principal balance and pays no principal or interest.
The Master REMIC
The
following table sets forth characteristics of the Certificates,
together with the minimum denominations and integral multiples in
excess thereof
in which such Classes shall be issuable (except that one
Certificate of each
Class of Certificates may be issued in a different amount):
<TABLE>
<CAPTION>
============================ ===========================
============================== ======================
=====================
Integral
Initial Class
Minimum
Multiples in
Class Designation
Certificate Balance
Pass-Through Rate
Denomination Excess of
Minimum
____________________________ ___________________________
______________________________ ______________________
_____________________
<S>
<C>
<C>
<C>
<C>
Class 1-A-1
$50,000,000
Floating (1)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class 1-A-2
$6,521,739
Floating (2)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class 1-A-3
$93,816,261
5.75%
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class 1-A-4
$16,556,000
5.75%
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class 2-A-1
$176,182,000
Floating (3)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class 2-A-2
$176,182,000 (4)
Floating (5)
$ 100,000
(6)
$1,000 (6)
____________________________ ___________________________
______________________________ ______________________
_____________________
Class PO
$819,861 (7)
N/A
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class A-R
$100.00
5.75%
$
100
N/A
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-1
$9,511,000
(8)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-1IO
$9,511,000 (4)
0.3937%
$ 100,000
(6)
$1,000 (6)
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-2
$4,207,000
(9)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-2IO
$4,207,000 (4)
0.1437%
$ 100,000
(6)
$1,000 (6)
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-3
$3,110,000
(10)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-4
$2,012,000
(10)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-5
$1,646,000
(10)
$ 100,000
$1,000
____________________________ ___________________________
______________________________ ______________________
_____________________
Class B-6
$1,463,629
(10)
$ 100,000
$1,000
============================ ===========================
============================== ======================
=====================
</TABLE>
(1) The Class
1-A-1 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR
plus
0.45% and
(ii) 5.75%. The Pass-Through Rate for the Class 1-A-1
Certificates during the initial Interest Accrual Period is 5.77%
per
annum.
(2) The Class
1-A-2 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate equal to 46.38333317% minus (LIBOR
multiplied
by 7.66666636), subject to a maximum of 46.38333317% and a
minimum of
0%. The Pass Through Rate for the Class 1-A-2 Certificates
during the
initial Interest Accrual Period is 5.5967% per annum.
(3) The Class
2-A-1 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate equal to the lesser of (i) LIBOR
plus
0.31% and
(ii) 7.00%. The Pass-Through Rate for the Class 2-A-1
Certificates during the initial Interest Accrual Period is 5.63%
per
annum.
5
<PAGE>
(4) The Class
2-A-2, Class B-1IO and Class B-2IO Certificates will be
Notional
Amount
Certificates, will have no Class Certificate Balances and will
bear
interest
on their respective Notional Amounts.
(5) The Class
2-A-2 Certificates will bear interest during each Interest
Accrual
Period at a per annum rate equal to 6.69% minus LIBOR, subject
to
a maximum
of 7.00% and a minimum of 0%. The Pass Through Rate for the
Class
2-A-2 Certificates during the initial Interest Accrual Period
is
1.37% per
annum.
(6) Denomination
is based on Notional Amount.
(7) The Class PO
Certificates are Principal Only Certificates and are not
entitled
to receive distributions of interest.
(8) The
Pass-Through Rate for the Class B-1 Certificates for the
Interest
Accrual
Period related to each Distribution Date will be a per annum
rate
equal to
the Weighted Average Rate for that Interest Accrual Period
minus
0.3937%.
The Pass-Through Rate for the Class B-1 Certificates for the
first
Interest Accrual Period is 5.9967% per annum.
(9) The
Pass-Through Rate for the Class B-2 Certificates for the
Interest
Accrual
Period related to each Distribution Date will be a per annum
rate
equal to the
Weighted Average Rate for that Interest Accrual Period minus
0.1437%.
The Pass-Through Rate for the Class B-1 Certificates for the
first
Interest Accrual Period is 6.2467% per annum.
(10) The Pass-Through
Rate for the Class of Subordinated Certificates for the
Interest
Accrual Period for any Distribution Date will be a per annum
rate
equal to
the Weighted Average Rate. The Pass-Through Rate for this Class
of
Subordinated Certificates for the first Interest Accrual Period
is
6.3904%
per annum.
The
foregoing REMIC structure is intended to cause all of the cash
from
the Mortgage Loans to flow through to the Master REMIC as cash flow
on a REMIC
regular interest, without creating any shortfall--actual or
potential (other
than for credit losses) to any REMIC regular interest.
Scheduled
Principal Prepayments and Realized Losses will be allocated to
the same Lower Tier Interests in the same manner as such amounts
are allocated
to the Master REMIC Classes referenced under the column titled
"Allocation of
Principal."
6
<PAGE>
Set forth below are designations of Classes of Certificates to the
categories
used herein:
Accretion Directed Certificates........ None.
Accrual Certificates................... None.
Book-Entry Certificates................ All Classes of Certificates
other
than the Physical Certificates.
COFI Certificates...................... None.
Component Certificates................. Class 2-A-2
Certificates.
Components............................. Class 2-A-2-IO, Class
2-A-2-P1 and
Class 2-A-2-P2 Components.
Delay Certificates..................... All interest-bearing Classes
of
Certificates other than any
Non-Delay Certificates.
ERISA-Restricted Certificates.......... The Residual Certificates
and the
Private Certificates; the Retained
Certificates until they have been
the subject of an ERISA-Qualifying
Underwriting; and Certificates of
any Class that ceases to have a
rating of BBB- (or its equivalent)
or better from at least one Rating
Agency.
Group 1 Senior Certificates............ Class 1-A-1, Class 1-A-2,
Class
1-A-3, Class 1-A-4 and Class A-R
Certificates.
Group 1 Certificates................... Group 1 Senior Certificates
and the
portions of the Subordinated
Certificates related to Collateral
Allocation Group 1.
Group 2 Senior Certificates............ Class 2-A-1 and Class
2-A-2
Certificates.
Group 2 Certificates................... Group 2 Senior Certificates
and the
portions of the Subordinated
Certificates related to Collateral
Allocation Group 2.
LIBOR Certificates..................... Class 1-A-1, Class 1-A-2,
Class
2-A-1 and Class 2-A-2 Certificates.
Non-Delay Certificates................. LIBOR Certificates.
Notional Amount Certificates........... Class 2-A-2, Class B-1IO and
Class
B-2IO Certificates.
Notional Amount Components............. Class 2-A-2-IO
Component.
Offered Certificates................... All Classes of Certificates
other
than the Private
7
<PAGE>
Certificates.
Physical Certificates.................. Class A-R Certificates and
the
Private Certificates.
Planned Principal Classes.............. None.
Principal Only Certificates............ Class PO Certificates.
Private Certificates................... Class B-4, Class B-5 and
Class B-6
Certificates.
Rating Agencies........................ S&P and Fitch.
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,
Class
1-A-3, Class 1-A-4, Class 2-A-1, Class
2-A-2, Class PO and Class A-R
Certificates.
Senior Certificate Group............... The Group 1 Senior
Certificates or
the Group 2 Senior Certificates.
Subordinated Certificates.............. Class B-1, Class B-1IO,
Class B-2,
Class B-2IO, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Targeted Principal Classes............. None.
Targeted Principal Component........... None.
With
respect to any of the foregoing designations as to which the
corresponding reference is "None," all defined terms and provisions
in this
Agreement relating solely to such designations shall be of no force
or effect,
and any calculations in this Agreement incorporating references to
such
designations shall be interpreted without reference to such
designations and
amounts. Defined terms and provisions in this Agreement relating to
statistical
rating agencies not designated above as Rating Agencies shall be of
no force or
effect.
8
<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: Not
applicable.
Advance:
The payment required to be made by the Servicer with respect to
any Distribution Date pursuant to Section 4.01, the amount of any
such payment
being equal to the aggregate of payments of principal and interest
(net of the
Servicing Fee) on the Mortgage Loans that were due during the
related Due Period
and not received as of the close of business on the related
Determination Date,
together with an amount equivalent to interest on each REO
Property, net of any
net income from such REO Property, less the aggregate amount of any
such
delinquent payments that the Servicer has determined would
constitute a
Nonrecoverable Advance if advanced.
Advance
Notice: As defined in Section 4.01(b).
Advance
Deficiency: As defined in Section 4.01(b).
Affiliate:
With respect to any Person, any other Person controlling,
controlled or under common control with such Person. For purposes
of this
definition, "control" means the power to direct the management and
policies of a
Person, directly or indirectly, whether through ownership of voting
securities,
by contract, or otherwise and "controlling" and "controlled" shall
have meanings
correlative to the foregoing. Affiliates also include any entities
consolidated
with the requirements of generally accepted accounting
principles.
Agreement:
This Pooling and
Servicing Agreement and all amendments and
supplements.
9
<PAGE>
Allocable
Share: As to any Distribution Date and the Applicable Fraction
of any Mortgage Loan related to Collateral Allocation Group PO and
with respect
to the Class PO Certificates, zero. As to any Distribution Date and
the related
Applicable Fraction of any Mortgage Loan related to each Collateral
Loan Group
(other than Collateral Allocation Group PO) and with respect to any
related
Class of Certificates, the ratio that the amount calculated with
respect to such
Distribution Date (A) with respect to the related Senior
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 Subordinated Certificates,
pursuant to the
definition of Assumed Interest Amount or after a 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, as applicable.
Amount
Available for Senior Principal: As to any Distribution Date and
any
Collateral Allocation 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)(iii),
Section
4.02(a)(2)(iii) or Section 4.02(a)(3).
Amount
Held for Future Distribution: As to any Distribution Date and
Collateral Allocation Group, the aggregate amount held in the
Certificate
Account at the close of business on the related Determination Date
on account of
the related Applicable Fraction of (i) Principal Prepayments
received after the
last day of the related Prepayment Period and Liquidation Proceeds
and
Subsequent Recoveries received in the month of such Distribution
Date and (ii)
all Scheduled Payments due after the related Due Date.
Applicable
Credit Support Percentage: As defined in Section 4.02(e).
Applicable
Fraction: With respect to any Mortgage Loan and a Collateral
Allocation Group, the percentage for such Mortgage Loan and
Collateral
Allocation Group set forth on the Mortgage Loan Schedule and
calculated as
follows:
<TABLE>
<CAPTION>
Mortgage Loan in the
Collateral Allocation
Collateral Allocation
Collateral Allocation
following subpools:
Group PO
Group 1
Group 2
-----------------------------
-----------------------------
-----------------------------
-----------------------------
<S>
<C>
<C>
<C>
Subpool A-1.................. 5.75% - Adjusted Net
Mortgage
Adjusted Net Mortgage
Rate of the Pool A Loan
Rate of the Pool A Loan
0.00%
-----------------------------
-----------------------------
5.75%
5.75%
10
<PAGE>
7.00% - Adjusted Net
100% - (7.00% - Adjusted
Subpool A-2..................
0.00%
Mortgage Rate of the Pool
Net Mortgage Rate of the
A Loan
Pool A Loan
-----------------------------
-----------------------------
1.25%
1.25%)
Subpool B-1.................. 5.75% - Adjusted Net
Mortgage
Adjusted Net Mortgage
Rate of the Pool B Loan
Rate of the Pool B Loan
0.00%
-----------------------------
-----------------------------
5.75%
5.75%
Subpool B-2..................
0.00%
7.00% - Adjusted Net
100% - (7.00% - Adjusted
Mortgage Rate of the Pool
Net Mortgage Rate of the
B Loan
Pool B Loan
-----------------------------
-----------------------------
1.25%
1.25%)
</TABLE>
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value
of
the related Mortgaged Property shall be: (i) with respect to a
Mortgage Loan
other than a Refinance Loan, the lesser of (a) the value of the
Mortgaged
Property based upon the appraisal made at the time of the
origination of such
Mortgage Loan and (b) the sales price of the Mortgaged Property at
the time of
the origination of such Mortgage Loan; and (ii) with respect to a
Refinance
Loan, the value of the Mortgaged Property based upon the appraisal
made at the
time of the origination of such Refinance Loan.
Assumed
Balance: For a Distribution Date and Collateral Allocation
Group
(other than Collateral Allocation Group PO), is equal to the
Subordinated
Percentage for that Distribution Date and Collateral Allocation
Group of the
related Applicable Fraction of the aggregate Stated Principal
Balance of each
Mortgage Loan as of the Due Date occurring in the month prior to
the month of
that Distribution Date (after giving effect to Principal
Prepayments received in
the Prepayment Period related to such Due Date).
Assumed
Interest Amount: With respect to any Distribution Date and each
Class of Subordinated Certificates, other than any Notional Amount
Certificates,
one month's interest accrued during the related Interest Accrual
Period at the
Pass-Through Rate for such Class on the applicable Assumed Balance
immediately
prior to that Distribution Date.
Available
Funds: As to any Distribution Date and the Mortgage Loans in a
Collateral Allocation Group, the sum of the related Applicable
Fraction of each
of the following (a) the amounts held in the Certificate Account at
the close of
business on the related Determination Date, including any
Subsequent Recoveries,
net of the related Amount Held for Future Distribution, net of
Prepayment
Charges and net of amounts permitted to be withdrawn from the
Certificate
Account pursuant to clauses (i) - (viii), inclusive, of Section
3.09(a) and
amounts permitted to be withdrawn from the Distribution Account
pursuant to
clauses (i) - (ii), inclusive, of Section 3.09(b), in each case
relating to such
Collateral Allocation Group, (b) the amount of the related Advance,
(c) in
connection with Defective Mortgage Loans in such Collateral
Allocation 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, in each case relating to such Collateral Allocation
Group. The
Holders of the Class 2-A-2 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.
11
<PAGE>
Bankruptcy
Code: The United
States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy
Coverage Termination Date: The point in time at which the
Bankruptcy Loss Coverage Amount is reduced to zero.
Bankruptcy
Loss: With respect to any Mortgage Loan, a Deficient Valuation
or Debt Service Reduction; provided, however, that a Bankruptcy
Loss shall not
be deemed a Bankruptcy Loss under this Agreement so long as the
Servicer has
notified the Trustee in writing that the Servicer is diligently
pursuing any
remedies that may exist in connection with the related Mortgage
Loan and either
(A) the related Mortgage Loan is not in default with regard to
payments due
under the Mortgage Loan or (B) delinquent payments of principal and
interest
under the related Mortgage Loan and any related escrow payments in
respect of
such Mortgage Loan are being advanced on a current basis by the
Servicer, in
either case without giving effect to any Debt Service Reduction or
Deficient
Valuation.
Bankruptcy
Loss Coverage Amount: As of any date of determination, the
Bankruptcy Loss Coverage Amount shall equal the Initial Bankruptcy
Loss Coverage
Amount as reduced by (i) the aggregate amount of Bankruptcy Losses
allocated to
the Certificates since the Cut-off Date and (ii) any permissible
reductions in
the Bankruptcy Loss Coverage Amount as evidenced by a letter of
each Rating
Agency to the Trustee to the effect that any such reduction will
not result in a
downgrading, qualification or withdrawal of the then current
ratings assigned to
the Classes of Certificates rated by it.
Blanket
Mortgage: The mortgage
or mortgages encumbering a Cooperative
Property.
Book-Entry
Certificates: As
specified in the Preliminary Statement.
Business
Day: Any day other than (i) a Saturday or a Sunday, or (ii) a
day
on which banking institutions in the City of New York, New York,
the State of
California or the city in which the Corporate Trust Office of the
Trustee is
located are authorized or obligated by law or executive order to be
closed.
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 capped at
zero.
Certificate: Any one of the certificates issued by the Trust Fund
and
executed by the Trustee in substantially the forms attached as
exhibits.
Certificate Account: The separate Eligible Account or Accounts
created and
maintained by the Servicer pursuant to Section 3.06(d) with a
depository
institution in the name of the Servicer for the benefit of the
Trustee on behalf
of Certificateholders and designated "IndyMac Bank, F.S.B., in
trust for the
registered holders of Residential Asset Securitization Trust
2007-A3, Mortgage
Pass-Through Certificates, Series 2007-C."
Certificate Balance: With respect to any Certificate (other than
the
Notional Amount Certificates) at any date of determination, the
maximum dollar
amount of principal to which the Holder thereof is then entitled
under this
Agreement, such amount being equal to the Denomination thereof (A)
plus any
increase in the Certificate Balance of such Certificate pursuant to
Section 4.02
due to the receipt of Subsequent Recoveries, (B) minus the sum of
(i) all
distributions of principal previously made with respect thereto and
(ii) all
Realized Losses allocated to that Certificate and, in the case of
any
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
12
<PAGE>
Accrual Amount added to the Class Certificate Balance of such Class
prior to
such date. The Notional Amount Certificates do not have Certificate
Balances.
Certificate Group: The
Group 1 Certificates or the Group 2
Certificates, as applicable.
Certificate Owner: With respect to a Book-Entry Certificate, the
Person
who is the beneficial owner of the Book-Entry Certificate. For the
purposes of
this Agreement, in order for a Certificate Owner to enforce any of
its rights
under this Agreement, it shall first have to provide evidence of
its beneficial
ownership interest in a Certificate that is reasonably satisfactory
to the
Trustee, the Depositor and/or the Servicer, as applicable.
Certificate Register:
The register maintained pursuant to Section 5.02.
Certificate Registrar:
Deutsche Bank National Trust Company and its
successors and, if a successor trustee is appointed under this
Agreement, the
successor.
Certificateholder or Holder: The person in whose name a Certificate
is
registered in the Certificate Register, except that, solely for the
purpose of
giving any consent pursuant to this Agreement, any Certificate
registered in the
name of the Depositor or any affiliate of the Depositor is not
Outstanding and
the Percentage Interest evidenced thereby shall not be taken into
account in
determining whether the requisite amount of Percentage Interests
necessary to
effect a consent has been obtained, except that if the Depositor or
its
affiliates own 100% of the Percentage Interests evidenced by a
Class of
Certificates, the Certificates shall be Outstanding for purposes of
any
provision of this Agreement requiring the consent of the Holders of
Certificates
of a particular Class as a condition to the taking of any action.
The Trustee is
entitled to rely conclusively on a certification of the Depositor
or any
affiliate of the Depositor in determining which Certificates are
registered in
the name of an affiliate of the Depositor.
Certification Party:
As defined in Section 11.05.
Certifying
Person: As defined in
Section 11.05.
Class:
All Certificates
bearing the same class designation as set
forth in the Preliminary Statement.
Class
Certificate Balance: For any Class as of any date of
determination, the aggregate of the Certificate Balances of all
Certificates
of the Class as of that date.
Class
Interest Shortfall: As to any Distribution Date and Class, the
amount by which the amount described in clause (i) of the
definition of Class
Optimal Interest Distribution Amount for such Class exceeds the
amount of
interest actually distributed on such Class on such Distribution
Date pursuant
to such clause (i).
Class
Optimal Interest Distribution Amount: With respect to any
Distribution Date and interest-bearing Class, the sum of (i) one
month's
interest accrued during the related Interest Accrual Period at the
Pass-Through
Rate for such Class or Component, on the related Class Certificate
Balance,
Notional Amount or Component 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 PO
Deferred Amount: As to any Distribution Date, the related
Applicable Fraction of each Realized Loss, other than any Excess
Loss, on a
Discount Mortgage Loan to be allocated to the Class PO
13
<PAGE>
Certificates on such Distribution Date on or prior to the Senior
Credit Support
Depletion Date or previously allocated to the Class PO Certificates
and not yet
paid to the Holders of the Class PO Certificates.
Class
Subordination Percentage: With respect to any Distribution Date
and
each Class of Subordinated Certificates, the fraction (expressed as
a
percentage) the numerator of which is the Class Certificate Balance
of such
Class of Subordinated Certificates immediately prior to such
Distribution Date
and the denominator of which is the aggregate Class Certificate
Balance of all
Classes of Certificates immediately prior to such Distribution
Date.
Class
Unpaid Interest Amounts: As to any Distribution Date and Class
of
interest-bearing Certificates, the amount by which the aggregate
Class Interest
Shortfalls for such Class on prior Distribution Dates exceeds the
amount
distributed on such Class on prior Distribution Dates pursuant to
clause (ii) of
the definition of Class Optimal Interest Distribution Amount.
Closing
Date: February 27,
2007.
CMT Index:
Not applicable.
Code: The
Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI:
Not applicable.
COFI
Certificates: Not
applicable.
Collateral
Allocation Group:
Collateral Allocation Group PO,
Collateral Allocation Group 1 or Collateral Allocation Group 2, as
applicable.
Collateral
Allocation Group 1: For any Distribution Date, all of the
Mortgage Loans in Subpool A-1, Subpool A-2, Subpool B-1 and Subpool
B-2 or
portions thereof that have been stripped to a rate of 5.75%.
Collateral
Allocation Group 2: For any Distribution Date, all of the
Mortgage Loans in Subpool A-2 and Subpool B-2 or portions thereof
that have been
stripped to a rate of 7.00%.
Collateral
Allocation Group PO: For any Distribution Date, all of the
Discount Mortgage Loans in Subpool A-1 and Subpool B-1 or portions
thereof that
have been stripped to a rate of 0.00%.
Commission: The United
States Securities and Exchange Commission.
Compensating Interest: For any Distribution Date, 0.125% multiplied
by
one-twelfth multiplied by the aggregate Stated Principal Balance of
the Mortgage
Loans as of the first day of the prior month.
Components: As
specified in the Preliminary Statement.
Component
Balance: With respect to any Component and any Distribution
Date, its Initial Component Balance (A) plus any Subsequent
Recoveries added to
the Component Balance of such Component pursuant to Section 4.02,
(B) minus the
sum of all amounts applied in reduction of the principal balance of
such
Component and Realized Losses allocated thereto and increased due
to the receipt
of Subsequent Recoveries.
Component
Certificates: As
specified in the Preliminary Statement.
14
<PAGE>
Component
Notional Amount: For the Class 2-A-2-IO Component for the
Interest Accrual Period related to each Distribution Date, the
Class Certificate
Balance of the Class 2-A-1 Certificates immediately prior to such
Distribution
Date.
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: Mortgage Administration-IN0703 (IndyMac
MBS, Inc.,
Residential Asset Securitization Trust 2007-A3, Mortgage
Pass-Through
Certificates, Series 2007-C), and which is the address to which
notices to and
correspondence with the Trustee should be directed. With respect to
the
Certificate Registrar, the designated office for presentment and
surrender of
Certificates for registration transfer, exchange or final payment
thereof is
located at DB Services Tennessee, 648 Grassmere Park Road,
Nashville, Tennessee,
37211-3658, Attention: Transfer Unit.
Cut-off
Date: February 1,
2007.
Cut-off
Date Pool Principal Balance: $371,388,138.32.
Cut-off
Date Principal Balance: As to any Mortgage Loan, its
Stated
Principal Balance as of the close of business on the Cut-off
Date.
Debt
Service Reduction: For any Mortgage Loan, a reduction by a court
of
competent jurisdiction in a proceeding under the Bankruptcy Code in
the
Scheduled Payment for the Mortgage Loan that became final and
non-appealable,
except a reduction resulting from a Deficient Valuation or a
reduction that
results in a permanent forgiveness of principal.
Defective
Mortgage Loan: Any Mortgage Loan that is required to be
repurchased pursuant to Section 2.02 or 2.03.
Deficient
Valuation: For any Mortgage Loan, a valuation by a court of
competent jurisdiction of the Mortgaged Property in an amount less
than the then
outstanding indebtedness under the Mortgage Loan, or any reduction
in the amount
of principal to be paid in connection with any Scheduled Payment
that results in
a permanent forgiveness of principal, which valuation or reduction
results from
an order of the court that is final and non-appealable in a
proceeding under the
Bankruptcy Code.
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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, not later than the Closing
Date, and
(B) for
the remaining 30% of the Mortgage Loans, not later than five
Business Days following the Closing Date.
To the
extent that the Seller is in possession of any Mortgage File
for
any Delay Delivery Mortgage Loan, until delivery of the Mortgage
File to the
Trustee as provided in Section 2.01, the Seller shall hold the
files as
Servicer, as agent and in trust for the Trustee.
Deleted
Mortgage Loan: As
defined in Section 2.03(c).
Delinquent: A Mortgage Loan is "Delinquent" if any monthly payment
due on
a Due Date is not made by the close of business on the next
scheduled Due Date
for such Mortgage Loan. A Mortgage Loan is "30 days Delinquent" if
such monthly
payment has not been received by the close of business on the
corresponding day
of the month immediately succeeding the month in which such monthly
payment was
due. The determination of whether a Mortgage Loan is "60 days
Delinquent", "90
days Delinquent", etc. shall be made in a like manner.
Denomination: For each Certificate, the amount on the face of
the
Certificate as the "Initial Certificate Balance of this
Certificate" or the
"Initial Notional Amount of this Certificate" or, if neither of the
foregoing,
the Percentage Interest appearing on the face of the
Certificate.
Depositor:
IndyMac MBS, Inc., a
Delaware corporation, or its successor
in interest.
Depository: The
initial Depository shall be The Depository Trust
Company, the nominee of which is CEDE & Co., as the registered
Holder of the
Book-Entry Certificates. The Depository shall at all times
be a "clearing
corporation" as defined in Section 8-102(a)(5) of the UCC.
Depository
Participant: A broker, dealer, bank, or other financial
institution or other Person for whom from time to time a Depository
effects
book-entry transfers and pledges of securities deposited with the
Depository.
Determination Date: As to any Distribution Date, the 18th day of
each
month or if that day is not a Business Day the next Business Day,
except that if
the next Business Day is less than two Business Days before the
related
Distribution Date, then the Determination Date shall be the
Business Day
preceding the 18th day of the month.
Discount
Mortgage Loan: Any Mortgage Loan with an Adjusted Net Mortgage
Rate that is less than 5.75%.
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<PAGE>
Distribution Account: The separate Eligible Account created and
maintained
by the Trustee pursuant to Section 3.06(e) in the name of the
Trustee for the
benefit of the Certificateholders and designated "Deutsche Bank
National Trust
Company in trust for registered holders of Residential Asset
Securitization
Trust 2007-A3, Mortgage Pass-Through Certificates, Series 2007-C."
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 March 2007.
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 two highest short-term ratings of
S&P, if S&P is a
Rating Agency at the time any amounts are held on deposit therein,
or
(ii) an account
or accounts in a depository institution or trust company
in which such accounts are insured by the FDIC (to the limits
established by the
FDIC) and the uninsured deposits in which accounts are otherwise
secured such
that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each
Rating Agency, the Certificateholders have a claim with respect to
the funds in
such account or a perfected first priority security interest
against any
collateral (which shall be limited to Permitted Investments)
securing such funds
that is superior to claims of any other depositors or creditors of
the
depository institution or trust company in which such account is
maintained, or
(iii) a
trust account or accounts maintained with (a) the trust
department
of a federal or state chartered depository institution or (b) a
trust company,
acting in its fiduciary capacity, or
(iv) any
other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and may include, if otherwise
qualified
under this definition, accounts maintained with the Trustee.
ERISA:
The Employee
Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that meets the requirements of
the
Underwriter's Exemption.
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<PAGE>
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 2007-C, 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 10-D
Disclosure Item, and (b) any affiliations or relationships between
such Person
and any Item 1119 Party.
Fraud
Loan: A Liquidated Mortgage Loan as to which a Fraud Loss has
occurred.
Fraud Loss
Coverage Amount: As of the Closing Date, $7,427,763, subject to
reduction from time to time, by the amount of Fraud Losses
allocated to the
Certificates. In addition, on each anniversary of the Cut-off Date,
the Fraud
Loss Coverage Amount will be reduced as follows: (a) on the first,
second, third
and fourth anniversaries of the Cut-off Date, to an amount equal to
the lesser
of (i) 2% of the then current Stated Principal Balance of the
Mortgage Loans in
the case of the first such anniversary and 1% of the then-current
Stated
Principal Balance of the Mortgage Loans in the case of the second,
third and
fourth such anniversaries and (ii) the excess of the Fraud Loss
Coverage Amount
as of the preceding anniversary of the Cut-off Date over the
cumulative amount
of Fraud Losses allocated to the Certificates since such preceding
anniversary;
and (b) on the fifth anniversary of the Cut-off Date, to zero.
Fraud Loss
Coverage Termination Date: The point in time at which the Fraud
Loss Coverage Amount is reduced to zero.
Fraud
Losses: Realized Losses on Mortgage Loans as to which a loss is
sustained by reason of a default arising from fraud, dishonesty
or
misrepresentation in connection with the related Mortgage Loan,
including a loss
by reason of the denial of coverage under any related Primary
Insurance Policy
because of such fraud, dishonesty or misrepresentation.
Gross
Margin: Not
applicable.
Group 1
Certificates: As
specified in the Preliminary Statement.
Group 1
Senior Certificates:
As specified in the Preliminary Statement.
Group 2
Certificates: As
specified in the Preliminary Statement.
Group 2
Senior Certificates:
As specified in the Preliminary Statement.
Index:
Not applicable.
Indirect
Participant: A broker, dealer, bank, or other financial
institution or other Person that clears through or maintains a
custodial
relationship with a Depository Participant.
Initial
Bankruptcy Loss Coverage Amount: $128,013.
Initial
Component Balance: As
specified in the Preliminary Statement.
Initial
LIBOR Rate: 5.32% per
annum.
Insurance
Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and endorsements thereto in
effect,
including any replacement policy or policies for any Insurance
Policies.
19
<PAGE>
Insurance
Proceeds: Proceeds paid by an insurer pursuant to any Insurance
Policy, in each case other than any amount included in such
Insurance Proceeds
in respect of Insured Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the Mortgage Loans.
Interest
Accrual Period: With respect to each Class of Delay
Certificates
and any Distribution Date, the calendar month prior to the month of
such
Distribution Date. With respect to each Class of Non-Delay
Certificates and any
Distribution Date, the one-month period commencing on the 25th day
of the month
preceding the month in which such Distribution Date occurs and
ending on the
24th day of the month in which such Distribution Date occurs. All
Classes of
Certificates will accrue interest on the basis of a 360-day year
consisting of
twelve 30-day months.
Interest
Determination Date: With respect to (a) any Interest Accrual
Period for any LIBOR Certificates and (b) any Interest Accrual
Period for the
COFI Certificates for which the applicable Index is LIBOR, the
second Business
Day prior to the first day of such Interest Accrual Period.
Interest
Settlement Rate: As
defined in Section 4.09.
Item 1119
Party: The Depositor, the Seller, the Servicer, the Trustee and
any other material transaction party, as identified in Exhibit T,
as updated
pursuant to Section 11.04.
Latest
Possible Maturity Date: The Distribution Date following the
third
anniversary of the later of (i) the scheduled maturity date of the
Mortgage Loan
having the latest scheduled maturity date as of the Cut-off Date,
and (ii) the
latest possible maturity of any Substitute Mortgage Loan that may
be substituted
for any Mortgage Loan pursuant to this Agreement.
Lender PMI
Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary mortgage guaranty insurance
and charged
the related borrower an interest premium.
LIBOR: The
London interbank offered rate for one month United States
dollar deposits calculated in the manner described in Section
4.09.
LIBOR
Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the commencement of such Interest
Accrual Period.
Limited
Exchange Act Reporting Obligations: The obligations of the
Servicer under Section 3.17(b), Section 6.02 and Section 6.04 with
respect to
notice and information to be provided to the Depositor and Article
11 (except
Section 11.07(a)(i) and (ii)).
Liquidated
Mortgage Loan: For any Distribution Date, a defaulted Mortgage
Loan (including any REO Property) that was liquidated in the
calendar month
preceding the month of the Distribution Date and as to which the
Servicer has
certified (in accordance with this Agreement) that it has received
all amounts
it expects to receive in connection with the liquidation of the
Mortgage Loan,
including the final disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds
regardless of
when received, received in connection with the partial or complete
liquidation
of defaulted Mortgage Loans, whether
20
<PAGE>
through trustee's sale, foreclosure sale, or otherwise or amounts
received in
connection with any condemnation or partial release of a Mortgaged
Property, and
any other proceeds received in connection with an REO Property,
less the sum of
related unreimbursed Servicing Fees, Servicing Advances, and
Advances.
Loan-to-Value Ratio: For any Mortgage Loan and as of any date
of
determination, is the fraction whose numerator is the original
principal balance
of the related Mortgage Loan at that date of determination and
whose denominator
is the Appraised Value of the related Mortgaged Property.
London
Business Day: Any day on which dealings in deposits of United
States dollars are transacted in the London interbank market.
Lost
Mortgage Note: Any Mortgage Note the original of which was
permanently lost or destroyed and has not been replaced.
Maintenance: For any Cooperative Unit, the rent paid by the
Mortgagor to
the Cooperative Corporation pursuant to the Proprietary Lease.
MERS:
Mortgage Electronic
Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or
any
successor thereto.
MERS
Mortgage Loan: Any
Mortgage Loan registered with MERS on the
MERS(R) System.
MERS(R)
System: The system of recording transfers of mortgages
electronically maintained by MERS.
MIN:
The mortgage
identification number for any MERS Mortgage Loan.
MOM Loan:
Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its
successors
and assigns.
Moneyline
Telerate Page 3750: The display page currently so designated on
the Moneyline Telerate Information Services, Inc. (or any page
replacing that
page on that service for the purpose of displaying London
inter-bank offered
rates of major banks).
Monthly
Statement: The
statement delivered to the Certificateholders
pursuant to Section 4.06.
Moody's:
Moody's Investors
Service, Inc., or any successor thereto.
If Moody's is designated as a Rating Agency in the Preliminary
Statement, for
purposes of Section 10.05(b) the address for notices to Moody's
shall be
Moody's Investors Service, Inc., 99 Church Street, New York, New
York 10007,
Attention: Residential Loan Monitoring Group, or any other address
that
Moody's furnishes to the Depositor and the Servicer.
Mortgage:
The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or leasehold interest in real
property
securing a Mortgage Note.
Mortgage
File: The mortgage documents listed in Section 2.01 pertaining
to
a particular Mortgage Loan and any additional documents delivered
to the Trustee
to be added to the Mortgage File pursuant to this Agreement.
21
<PAGE>
Mortgage
Loans: Such of the mortgage loans transferred and assigned to
the
Trustee pursuant to this Agreement, as from time to time are held
as a part of
the Trust Fund (including any REO Property), the Mortgage Loans so
held being
identified on the Mortgage Loan Schedule, notwithstanding
foreclosure or other
acquisition of title of the related Mortgaged Property.
Mortgage
Loan Schedule: As of any date, the list set forth in Schedule I
of Mortgage Loans included in the Trust Fund on that date. The
Mortgage Loan
Schedule shall be prepared by the Seller and shall set forth the
following
information with respect to each Mortgage Loan:
(i) the
loan number;
(ii) the street
address of the Mortgaged Property, including the
zip code;
(iii) the maturity
date;
(iv) the
original principal balance;
(v) the
Cut-off Date Principal Balance;
(vi) the first
payment date of the Mortgage Loan;
(vii) the Scheduled
Payment in effect as of the Cut-off Date;
(viii) the Loan-to-Value Ratio at origination;
(ix) a code
indicating whether the residential dwelling at the
time of origination was represented to be owner-occupied;
(x) a code
indicating whether the residential dwelling is
either (a) a detached single family dwelling, (b) a
dwelling in a PUD, (c) a condominium unit, (d) a two- to
four-unit residential property, or (e) a Cooperative Unit;
(xi) the
Mortgage Rate;
(xii) the purpose for
the Mortgage Loan;
(xiii) the type of documentation program pursuant to which the
Mortgage Loan was originated;
(xiv) a code
indicating whether the Mortgage Loan is a
borrower-paid mortgage insurance loan;
(xv) the
Servicing Fee Rate;
(xvi) a code
indicating whether the Mortgage Loan is a Lender PMI
Loan;
(xvii) the coverage amount of any mortgage insurance;
(xviii) with respect to the Lender PMI Loans, the interest
premium
charged by the lender;
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<PAGE>
(xix) a code
indicating whether the Mortgage Loan is a Delay
Delivery Mortgage Loan; and
(xx) a code
indicating whether the Mortgage Loan is a MERS
Mortgage Loan.
Mortgage
Note: The original
executed note or other evidence of the
indebtedness of a Mortgagor under a Mortgage Loan.
Mortgage
Rate: The annual rate of interest borne by a Mortgage Note from
time to time (net of the interest premium for any Lender PMI
Loan).
Mortgage
Pool: Mortgage Pool A
or Mortgage Pool B.
Mortgage
Pool A: Pool A
Loans.
Mortgage
Pool B: Pool B
Loans.
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
Collateral Allocation Group, the amount by which the aggregate of
Prepayment
Interest Shortfalls for such Collateral Allocation Group exceeds an
amount equal
to the sum of (a) the Compensating Interest allocable to such
Collateral
Allocation Group for such Distribution Date and (b) the excess, if
any, of the
Compensating Interest allocable to each other Collateral Allocation
Group for
such Distribution Date over Prepayment Interest Shortfalls for such
other
Collateral Allocation Group and Distribution Date.
Non-Delay
Certificates: As specified in the Preliminary Statement.
Non-Discount Mortgage Loan: Each Mortgage Loan with an Adjusted
Net
Mortgage Rate that is greater than or equal to 5.75%.
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 Certificates and any
Distribution Date the Component Notional Amount of the Class
2-A-2IO Component
immediately prior to that Distribution Date. With respect to the
Class B-1IO
Certificates and any Distribution Date, the Class Certificate
Balance of the
Class B-1 Certificates immediately prior to that Distribution Date.
With respect
to the Class B-2IO Certificates and any Distribution Date, the
Class Certificate
Balance of the Class B-2 Certificates immediately prior to that
Distribution
Date.
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<PAGE>
Notional
Amount Certificates:
As specified in the Preliminary
Statement.
Offered
Certificates: As
specified in the Preliminary Statement.
Officer's
Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the President, a Managing
Director, a
Vice President (however denominated), an Assistant Vice President,
the
Treasurer, the Secretary, or one of the Assistant Treasurers or
Assistant
Secretaries of the Depositor or the Servicer, or (ii) if provided
for in this
Agreement, signed by a Servicing Officer, as the case may be, and
delivered to
the Depositor and the Trustee as required by this Agreement.
Opinion of
Counsel: For the interpretation or application of the REMIC
Provisions, a written opinion of counsel who (i) is in fact
independent of the
Depositor and the Servicer, (ii) does not have any direct financial
interest in
the Depositor or the Servicer or in any affiliate of either, and
(iii) is not
connected with the Depositor or the Servicer as an officer,
employee, promoter,
underwriter, trustee, partner, director, or person performing
similar functions.
Otherwise, a written opinion of counsel who may be counsel for the
Depositor or
the Servicer, including in-house counsel, reasonably acceptable to
the Trustee.
Original
Applicable Credit Support Percentage: With respect to each of
the
following Classes of Subordinated Certificates, the corresponding
percentage
described below:
Class B-1...................... 5.99%
Class B-2...................... 3.40%
Class B-3...................... 2.25%
Class B-4...................... 1.40%
Class B-5...................... 0.85%
Class B-6...................... 0.40%
Original
Mortgage Loan: The
Mortgage Loan refinanced in connection
with the origination of a Refinance Loan.
Original
Subordinated Principal Balance: On or prior to a Senior
Termination Date, the sum of the Subordinated Percentage for each
Collateral
Allocation Group, other than Collateral Allocation Group PO, the
related
Applicable Fraction of the aggregate Stated Principal Balance of
the Mortgage
Loans as of the Cut-off Date; or if such date is after the Senior
Termination
Date, the aggregate Class Certificate Balance of the Subordinated
Certificates
as of the Closing Date.
OTS:
The Office of Thrift
Supervision.
Outside
Reference Date: Not
applicable.
Outstanding: For the Certificates as of any date of determination,
all
Certificates theretofore executed and authenticated under this
Agreement
except:
(i) Certificates
theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in
exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
24
<PAGE>
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.
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;
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<PAGE>
(vi)
guaranteed reinvestment agreements issued by any bank,
insurance
company, or other corporation acceptable to the Rating Agencies at
the time of
the issuance of the agreements, as evidenced by a signed writing
delivered by
each Rating Agency;
(vii)
repurchase obligations with respect to any security described
in
clauses (i) and (ii) above, in either case entered into with a
depository
institution or trust company (acting as principal) described in
clause (iv)
above; provided that such repurchase obligation would be accounted
for as a
financing arrangement under generally accepted accounting
principles;
(viii)
securities (other than stripped bonds, stripped coupons, or
instruments sold at a purchase price in excess of 115% of their
face amount)
bearing interest or sold at a discount issued by any corporation
incorporated
under the laws of the United States or any state thereof that, at
the time of
the investment, have one of the two highest ratings of each Rating
Agency
(except if the Rating Agency is Moody's the rating shall be the
highest
commercial paper rating of Moody's for the securities), or any
lower rating that
will not result in the downgrading, qualification or withdrawal of
the ratings
then assigned to the Certificates by the Rating Agencies, as
evidenced by a
signed writing delivered by each Rating Agency and that have a
maturity date
occurring no more than 365 days from their date of issuance;
(ix) units
of a taxable money-market portfolio having the highest rating
assigned by each Rating Agency (except (i) if Fitch is a Rating
Agency and has
not rated the portfolio, the highest rating assigned by Moody's and
(ii) if S&P
is a Rating Agency, "AAAm" or "AAAM-N" 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,
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(iv) a
rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code,
(v) an
"electing large partnership" as defined in section 775 of the
Code,
(vi) a
Person that is not a U.S. Person, and
(vii) any
other Person so designated by the Depositor based on an Opinion
of Counsel that the Transfer of an Ownership Interest in a Residual
Certificate
to the Person may cause any REMIC created hereunder to fail to
qualify as a
REMIC at any time that the Certificates are outstanding.
Person:
Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company,
trust,
unincorporated organization, or government, or any agency or
political
subdivision thereof.
Physical
Certificates: As
specified in the Preliminary Statement.
Planned
Balance: Not
applicable.
Planned
Principal Classes: As
specified in the Preliminary Statement.
Pool A
Loans: The Mortgage Loans with soft Prepayment Charges or no
Prepayment Charge as listed on the Mortgage Loan Schedule as being
in Mortgage
Pool A.
Pool B
Loans: The Mortgage Loans with hard Prepayment Charges or no
Prepayment Charge listed on the Mortgage Loan Schedule as being in
Mortgage Pool
B.
Pool
Stated Principal Balance: The aggregate Stated Principal
Balance
of the Mortgage Loans.
Prepayment
Assumption: The
prepayment model used in the Prospectus
Supplement.
Prepayment
Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain partial prepayments and all
prepayments in
full made within the related Prepayment Charge Period, the
Prepayment Charges
with respect to each applicable Mortgage Loan so held by the Trust
Fund being
identified in the Mortgage Loan Schedule.
Prepayment
Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be imposed.
Prepayment
Interest Excess: As to any Principal Prepayment received by the
Servicer on a Mortgage Loan from the first day through the
fifteenth day of any
calendar month other than the month of the Cut-off Date, all
amounts paid by the
related Mortgagor in respect of interest on such Principal
Prepayment. All
Prepayment Interest Excess shall be retained by the Servicer as
additional
servicing compensation.
Prepayment
Interest Shortfall: As to any Distribution Date, Mortgage Loan
and Principal Prepayment received on or after the sixteenth day of
the month
preceding the month of such Distribution Date (or, in the case of
the first
Distribution Date, on or after the Cut-off Date) and on or before
the last day
of the month preceding the month of such Distribution Date, the
amount, if any,
by which one month's interest at the related Mortgage Rate, net of
the Servicing
Fee Rate, on such Principal Prepayment exceeds the amount of
interest paid in
connection with such Principal Prepayment.
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<PAGE>
Prepayment
Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of the month immediately
prior to the
month of such Distribution Date (or, in the case of the first
Distribution Date,
from the Cut-off Date) and to and including the 15th day of the
month of such
Distribution Date.
Primary
Insurance Policy: Each policy of primary mortgage guaranty
insurance or any replacement policy therefor with respect to any
Mortgage Loan.
Principal
Amount: As to any Distribution Date and any Collateral
Allocation Group, the sum of (a) the related Applicable Fraction of
all monthly
payments of principal due on each Mortgage Loan in the that
Collateral
Allocation Group on the related Due Date, (b) the related
Applicable Fraction of
the principal portion of the Purchase Price of each Mortgage Loan
in the that
Collateral Allocation Group that was repurchased by the Seller
pursuant to this
Agreement as of such Distribution Date, excluding any Mortgage Loan
in the that
Collateral Allocation Group that was repurchased due to a
modification of the
Mortgage Loan in lieu of refinancing, (c) the related Applicable
Fraction of the
Substitution Adjustment Amount in connection with any Deleted
Mortgage Loan in
the that Collateral Allocation Group received with respect to the
Distribution
Date, (d) the related Applicable Fraction of any Insurance Proceeds
or
Liquidation Proceeds allocable to recoveries of principal of
Mortgage Loans in
the that Collateral Allocation Group that are not yet Liquidated
Mortgage Loans
received during the calendar month preceding the month of such
Distribution
Date, (e) the related Applicable Fraction with respect to each
Mortgage Loan in
the that Collateral Allocation 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) the related Applicable Fraction of all
partial and full
Principal Prepayments on the Mortgage Loans in the that Collateral
Allocation
Group received during the related Prepayment Period and the
principal portion of
the Purchase Price of any Mortgage Loan in the that Collateral
Allocation Group
repurchased by the Seller pursuant to Section 3.12 and (g) the
related
Applicable Fraction of any Subsequent Recoveries with respect to
the Mortgage
Loans in the that Collateral Allocation Group received during the
calendar month
preceding the month of such Distribution Date.
Principal
Balance Schedule: Not
applicable.
Principal
Only Certificates: As
specified in the Preliminary Statement.
Principal
Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including the principal portion of the Purchase
Price of any
Mortgage Loan purchased pursuant to Section 3.12) that is received
in advance of
its scheduled Due Date and is not accompanied by an amount
representing
scheduled interest due on any date in any month after the month of
prepayment.
The Servicer shall apply partial Principal Prepayments in
accordance with the
related Mortgage Note.
Principal
Prepayment in Full: Any Principal Prepayment made by a
Mortgagor
of the entire principal balance of a Mortgage Loan.
Priority
Amount: For any Distribution Date and Collateral Allocation
Group
1, the sum of (i) the product of (A) 66.5540158563563% of the
Scheduled
Principal Distribution Amount, (B) the Senior Percentage, (C) the
Shift
Percentage and (D) the Priority Percentage and (ii) the product of
(A)
66.5540158563563% of the Unscheduled Principal Distribution Amount,
(B) the
Senior Prepayment Percentage, (C) the Shift Percentage and (D) the
Priority
Percentage.
Priority
Percentage: For any Distribution Date and Collateral Allocation
Group 1, the percentage equivalent of a fraction, the numerator of
which is the
Class Certificate Balance of the Class 1-
28
<PAGE>
A-4 Certificates immediately prior to such Distribution Date, and
the
denominator of which is the aggregate Class Certificate Balance of
the Class
1-A-3 and Class 1-A-4 Certificates immediately prior to such
Distribution Date.
Private
Certificates: As
specified in the Preliminary Statement.
Pro Rata
Share: As to any Distribution Date and any Class of
Subordinated
Certificates, the portion of the Subordinated Principal
Distribution Amount
allocable to such Class, equal to the product of the Subordinated
Principal
Distribution Amount on such Distribution Date and a fraction, the
numerator of
which is the related Class Certificate Balance thereof and the
denominator of
which is the aggregate Class Certificate Balance of the
Subordinated
Certificates, in each case immediately prior to such Distribution
Date.
Proprietary Lease: For any Cooperative Unit, a lease or
occupancy
agreement between a Cooperative Corporation and a holder of related
Co-op
Shares.
Prospectus
Supplement: The Prospectus Supplement dated February 27, 2007,
relating to the Offered Certificates, and any supplement
thereto.
PUD:
Planned Unit
Development.
Purchase
Price: For any
Mortgage Loan required to be purchased by the
Seller pursuant to Section 2.02 or 2.03 or purchased by the
Servicer pursuant
to Section 3.12, the sum of
(i) 100%
of the unpaid principal balance of the Mortgage Loan on the
date
of the purchase,
(ii)
accrued and unpaid interest on the Mortgage Loan at the
applicable
Mortgage Rate (or at the applicable Adjusted Mortgage Rate if (x)
the purchaser
is the Servicer or (y) if the purchaser is the Seller and the
Seller is the
Servicer) from the date through which interest was last paid by the
Mortgagor to
the Due Date in the month in which the Purchase Price is to be
distributed to
Certificateholders, net of any unreimbursed Advances made by the
Servicer on the
Mortgage Loan, and
(iii) any
costs and damages incurred by the Trust Fund in connection with
any violation by the Mortgage Loan of any predatory or abusive
lending law.
If the
Mortgage Loan is purchased pursuant to Section 3.12, the
interest
component of the Purchase Price shall be computed (i) on the basis
of the
applicable Adjusted Mortgage Rate before giving effect to the
related
modification and (ii) from the date to which interest was last paid
to the date
on which the Mortgage Loan is assigned to the Servicer pursuant to
Section 3.12.
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
29
<PAGE>
statistical rating organization, or other comparable Person,
designated by the
Depositor and identified as a "Rating Agency" in the Underwriters'
Exemption,
notice of which designation shall be given to the Trustee.
References to a given
rating or rating category of a Rating Agency means the rating
category without
giving effect to any modifiers.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
(not less than zero or more than the Stated Principal Balance of
the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated
Principal
Balance of the Liquidated Mortgage Loan as of the date of such
liquidation, plus
(ii) interest at the Adjusted Net Mortgage Rate from the Due Date
as to which
interest was last paid or advanced (and not reimbursed) to
Certificateholders up
to the Due Date in the month in which Liquidation Proceeds are
required to be
distributed on the Stated Principal Balance of such Liquidated
Mortgage Loan
from time to time, minus (iii) the Liquidation Proceeds, if any,
received during
the month in which such liquidation occurred, to the extent applied
as
recoveries of interest at the Adjusted Net Mortgage Rate and to
principal of the
Liquidated Mortgage Loan. With respect to each Mortgage Loan that
has become the
subject of a Deficient Valuation, if the principal amount due under
the related
Mortgage Note has been reduced, the difference between the
principal balance of
the Mortgage Loan outstanding immediately prior to such Deficient
Valuation and
the principal balance of the Mortgage Loan as reduced by the
Deficient
Valuation. With respect to each Mortgage Loan that has become the
subject of a
Debt Service Reduction and any Distribution Date, the amount, if
any, by which
the principal portion of the related Scheduled Payment has been
reduced.
To the
extent the Servicer receives Subsequent Recoveries with respect
to
any Mortgage Loan, the amount of the Realized Loss with respect to
that Mortgage
Loan will be reduced by such Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement
between the
Cooperative Corporation and the originator of the Mortgage Loan
that establishes
the rights of the originator in the Cooperative Property.
Record
Date: With respect to any Distribution Date and any Definitive
Certificate and the Delay Certificates, the close of business on
the last
Business Day of the month preceding the month of that Distribution
Date (or in
the case of the first Distribution Date, the Closing Date). With
respect to any
Distribution Date and the Non-Delay Certificates as long as they
are Book-Entry
Certificates, the Business Day immediately prior to such
Distribution Date.
Reference
Bank: As defined in
Section 4.09.
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.
30
<PAGE>
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 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
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<PAGE>
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.
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.
Scheduled
Principal Distribution Amount: For any Distribution Date, an
amount equal to the related Senior Percentage of all amounts
described in
clauses (a) through (d) of the definition of Principal Amount for
Collateral
Allocation Group 1 for such Distribution Date; provided, however,
that if a
Bankruptcy Loss that is an Excess Loss is sustained with respect to
a Mortgage
Loan that is not a
32
<PAGE>
Liquidated Mortgage Loan, the Scheduled Principal Distribution
Amount will be
reduced on the related Distribution Date by the related Applicable
Fraction of
the principal portion of such Bankruptcy Loss.
Securities
Act: The Securities
Act of 1933, as amended.
Security
Agreement: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the originator of the related
Mortgage
Note that defines the security interest in the Co-op Shares and the
related
Proprietary Lease.
Seller:
IndyMac Bank, F.S.B.,
a federal savings bank, and its
successors and assigns, in its capacity as seller of the Mortgage
Loans to
the Depositor.
Senior
Certificate Group: As
specified in the Preliminary Statement.
Senior
Certificates: As
specified in the Preliminary Statement.
Senior
Credit Support Depletion Date: The date on which the Class
Certificate Balance of each Class of Subordinated Certificates has
been reduced
to zero.
Senior
Percentage: As to any Collateral Allocation Group (other than
Collateral Allocation Group PO) and Distribution Date, the
percentage equivalent
of a fraction the numerator of which is the aggregate Class
Certificate Balance
of the Senior Certificates (other than the Notional Amount
Certificates) related
to that Collateral Allocation Group immediately before the
Distribution Date and
the denominator of which is the sum of the Applicable Fraction of
the Stated
Principal Balance of each Mortgage Loan as of the Due Date
occurring in the
month prior to the month of that Distribution Date (after giving
effect to
Principal Prepayments received in the Prepayment Period related to
such prior
Due Date); provided, however, that on any Distribution Date after a
Senior
Termination Date, the Senior Percentage for the Senior Certificates
of the
remaining Senior Certificate Group is the percentage equivalent of
a fraction,
the numerator of which is the aggregate Class Certificate Balance
of the Senior
Certificates (other than the Class PO Certificates and the Notional
Amount
Certificates) of such remaining Senior Certificate Group
immediately prior to
such Distribution Date and the denominator of which is the
aggregate Class
Certificate Balance of all Classes of Certificates (other than the
Class PO
Certificates), immediately prior to such Distribution Date.
Senior
Prepayment Percentage: As to any Collateral Allocation Group
(other
than Collateral Allocation Group PO) and Distribution Date during
the five years
beginning on the first Distribution Date, 100%. The Senior
Prepayment Percentage
for any Distribution Date occurring on or after the fifth
anniversary of the
first Distribution Date will, except as provided in this Agreement,
be as
follows: for any Distribution Date in the first year thereafter,
the 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 Certificate Group, in which
case the
Senior Prepayment Percentage for each Senior Certificate Group and
such
Distribution Date will once again equal 100%). Notwithstanding the
foregoing, no
decrease in the Senior Prepayment Percentage will occur unless both
Senior Step
Down Conditions are satisfied with respect to both Loan Groups.
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<PAGE>
Senior
Principal Distribution Amount: As to any Distribution Date and
Collateral Allocation Group (other than Collateral Allocation Group
PO), 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
Collateral Allocation
Group for that Distribution Date, (ii) with respect to any Mortgage
Loan in that
Collateral Allocation Group 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 related Applicable Fraction 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 related
Applicable
Fraction of the amount of the Liquidation Proceeds allocable to
principal
received on the Mortgage Loan or (B) if an Excess Loss were
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
clauses (f) and (g)
of the definition of Principal Amount for that Collateral
Allocation Group for
that Distribution Date; provided, however, that if a Bankruptcy
Loss that is an
Excess Loss is sustained with respect to a Mortgage Loan that is
not a
Liquidated Mortgage Loan, the Senior Principal Distribution Amount
for that
Collateral Allocation Group will be reduced on the related
Distribution Date by
the Senior Percentage of the related Applicable Fraction of the
applicable
principal portion of such Bankruptcy Loss; provided further,
however, on any
Distribution Date after a Senior Termination Date, the Senior
Principal
Distribution Amount for the remaining Senior Certificate Group will
be
calculated pursuant to the above formula based on all the Mortgage
Loans, as
opposed to the Mortgage Loans in the applicable Collateral
Allocation Group. As
to any Distribution Date and Collateral Allocation Group PO, the
Principal
Amount for Collateral Allocation Group PO.
Senior
Step Down Conditions: With respect to a Collateral Allocation
Group
(other than Collateral Allocation Group PO): (i) the related
Applicable Fraction
of the Stated Principal Balance of each Mortgage Loan in that
Collateral
Allocation Group delinquent 60 days or more (including Mortgage
Loans in
foreclosure proceedings, REO Property and Mortgage Loans the
mortgagors of which
are in bankruptcy) (averaged over the preceding six month period),
as a
percentage of (a) if such date is on or prior to a Senior
Termination Date, the
Subordinated Percentage for that Collateral Allocation Group of the
related
Applicable Fraction of the Stated Principal Balance of each
Mortgage Loan or (b)
if such date is after a Senior Termination Date, the aggregate
Class Certificate
Balance of the Subordinated Certificates, does not equal or exceed
50%, and (ii)
cumulative Realized Losses on the related Applicable Fraction of
each Mortgage
Loan for a Collateral Allocation Group do not exceed: (a)
commencing with the
Distribution Date on the fifth anniversary of the first
Distribution Date, 30%
of the Original Subordinated Principal Balance, (b) commencing with
the
Distribution Date on the sixth anniversary of the first
Distribution Date, 35%
of the Original Subordinated Principal Balance, (c) commencing with
the
Distribution Date on the seventh anniversary of the first
Distribution Date, 40%
of the Original Subordinated Principal Balance, (d) commencing with
the
Distribution Date on the eighth anniversary of the first
Distribution Date, 45%
of the Original Subordinated Principal Balance, and (e) commencing
with the
Distribution Date on the ninth anniversary of the first
Distribution Date, 50%
of the Original Subordinated Principal Balance.
Senior
Termination Date: For each Senior Certificate Group, the
Distribution Date on which the aggregate Class Certificate Balance
of the
related Classes of 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.
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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
duties
shall be
treated as Servicing Advances.
Servicing
Criteria: The
"servicing criteria" set forth in Item 1122(d)
of Regulation AB.
Servicing
Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable Servicing Fee Rate on the Stated
Principal
Balance of the Mortgage Loan 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), or, whenever a
payment of
interest accompanies a Principal Prepayment in Full made by the
Mortgagor,
interest at the Servicing Fee Rate on the Stated Principal Balance
of the
Mortgage Loan for the period covered by the payment of interest,
subject to
reduction as provided in Section 3.15.
Servicing
Fee Rate: For each Mortgage Loan, the per annum rate specified
on the Mortgage Loan Schedule.
Servicing
Officer: Any officer of the Servicer involved in, or
responsible
for, the administration and servicing of the Mortgage Loans whose
name and
facsimile signature appear on a list of servicing officers
furnished to the
Trustee by the Servicer on the Closing Date pursuant to this
Agreement, as the
list may from time to time be amended.
Servicing
Standard: That degree of skill and care exercised by the
Servicer with respect to mortgage loans comparable to the Mortgage
Loans
serviced by the Servicer for itself or others.
Shift
Percentage: For any Distribution Date occurring during the five
years beginning on the first Distribution Date, 0%. For any
Distribution Date
occurring on or after the fifth anniversary of the first
Distribution Date as
follows: for any Distribution Date in the first year thereafter,
30%; for any
Distribution Date in the second year thereafter, 40%; for any
Distribution Date
in the third year thereafter, 60%; for any Distribution Date in the
fourth year
thereafter, 80%; and for any Distribution Date thereafter,
100%.
Special
Hazard Coverage Termination Date: The point in time at which
the
Special Hazard Loss Coverage Amount is reduced to zero.
Special
Hazard Loss: Any Realized Loss suffered by a Mortgaged Property
on
account of direct physical loss, but not including (i) any loss of
a type
covered by a hazard insurance policy or a flood
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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, proximate or remote or be in
whole or
in part caused by, contributed to or aggravated by a peril
covered by
the definition of the term "Special Hazard Loss";
(e) hostile or warlike action in time of peace and war,
including
action in
hindering, combating or defending against an actual, impending
or
expected attack:
1. by any government or sovereign power, de jure or de facto,
or by any authority maintaining or using military, naval or air
forces; or
2. by military, naval or air forces; or
3. by an agent of any such government, power, authority or
forces;
(f) any weapon of war employing nuclear fission, fusion or
other
radioactive force, whether in time of peace or war; or
(g) insurrection, rebellion, revolution, civil war, usurped power
or
action
taken by governmental authority in hindering, combating or
defending
against such an occurrence, seizure or destruction under
quarantine
or customs regulations, confiscation by order of any government
or public
authority, or risks of contraband or illegal transportation or
trade.
Special
Hazard Loss Coverage Amount: With respect to the first
Distribution Date, $3,713,881. With respect to any Distribution
Date after the
first Distribution Date, the lesser of (a) the greatest of (i) 1%
of the
aggregate of the principal balances of the Mortgage Loans, (ii)
twice the
principal balance of the largest Mortgage Loan and (iii) the
aggregate of the
principal balances of all Mortgage Loans secured by Mortgaged
Properties located
in the single California postal zip code area having the highest
aggregate
principal balance of any such zip code area and (b) the Special
Hazard Loss
Coverage Amount as of the Closing Date less the amount, if any, of
Special
Hazard Losses allocated to the Certificates since the Closing Date.
All
principal balances for the purpose of this definition will be
calculated as of
the first day of the calendar month preceding the month of such
Distribution
Date after giving effect to Scheduled Payments on the Mortgage
Loans then due,
whether or not paid.
Special
Hazard Mortgage Loan: A Liquidated Mortgage Loan as to which a
Special Hazard Loss has occurred.
Startup
Day: The Closing
Date.
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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 Certificates: As specified in the Preliminary
Statement.
Subordinated Percentage: As to any Collateral Allocation Group
(other than
Collateral Allocation Group PO) and Distribution Date on or prior
to a Senior
Termination Date, 100% minus the Senior Percentage for the Senior
Certificate
Group relating to such Collateral Allocation Group for such
Distribution Date.
As to any Distribution Date after a Senior Termination Date, 100%
minus the
Senior Percentage for such Distribution Date.
Subordinated Prepayment Percentage: As to any Distribution Date
and
Collateral Allocation Group (other than the Collateral Allocation
Group PO),
100% minus the Senior Prepayment Percentage for such Distribution
Date.
Subordinated Principal Distribution Amount: As to any Distribution
Date
and Collateral Allocation Group (other than Collateral Allocation
Group PO), the
sum of: (i) the related Subordinated Percentage of all amounts
described in
subclauses (a) through (d) of clause (i) of the definition of
Principal Amount
for that Collateral Allocation Group with respect to 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
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
Collateral
Allocation Group, up to the Subordinated Percentage of the related
Applicable
Fraction of the Stated Principal Balance of the Mortgage Loans, as
of the Due
Date in the month preceding the month of that Distribution Date,
(iii) the
Subordinated Prepayment Percentage of the amounts described in
subclauses (f)
and (g) of clause of the definition of Principal Amount for that
Collateral
Allocation Group for such Distribution Date, and (iv) the
Subordinated
Prepayment Percentage of any Subsequent Recoveries described in
clause (ii) of
the definition of Principal Amount and that Distribution Date,
reduced by the
amount of any payments in respect of Class PO Deferred Amounts on
the
Distribution Date; provided, however, that on any Distribution Date
after the
Senior Termination Date, the Subordinated Principal Distribution
Amount will not
be calculated by Collateral Allocation Group but will equal the
amount
calculated pursuant to the applicable formula set forth above based
on the
applicable Subordinated Percentage and Subordinated Prepayment
Percentage for
the Subordinated Certificates for such Distribution Date with
respect to all of
the Mortgage Loans as opposed to the Mortgage Loans only in the
related
Collateral Allocation 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
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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 Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan;
(iv) have
a remaining term to maturity not more than one year greater
than
(and not more than one year less than) that of the Deleted Mortgage
Loan,
provided that Substitute Mortgage Loan with a remaining term to
maturity greater
than that of the Deleted Mortgage Loan may not exceed 5% of the
Cut-off Date
Pool Principal Balance;
(v) not be
a Cooperative Loan unless the Deleted Mortgage Loan was a
Cooperative Loan; and
(vi) comply with
each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
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;
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<PAGE>
(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; and
(v) all
proceeds of the conversion, voluntary or involuntary, of any of
the foregoing.
Trustee:
Deutsche Bank National Trust Company and its successors and, if
a
successor trustee is appointed under this Agreement, the
successor.
Trustee
Fee: The fee payable to the Trustee on each Distribution Date
for
its services as Trustee hereunder, in an amount equal to
one-twelfth of the
Trustee Fee Rate multiplied by the aggregate Stated Principal
Balance of the
Mortgage Loans as of the Due Date in the month preceding the month
of such
Distribution Date (after giving effect to Principal Prepayments in
the
Prepayment Period related to that prior Due Date).
Trustee
Fee Rate: 0.0000% per
annum.
The terms
"United States," "State," and "International Organization" have
the meanings in section 7701 of the Code or successor provisions. A
corporation
will not be treated as an instrumentality of the United States or
of any State
or political subdivision thereof for these purposes if all of its
activities are
subject to tax and, with the exception of the Federal Home Loan
Mortgage
Corporation, a majority of its board of directors is not selected
by such
government unit.
UCC:
The Uniform Commercial
Code for the State of New York.
Undercollateralized Group: 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
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<PAGE>
(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.
Unscheduled Principal Distribution Amount: For any Distribution
Date and
Collateral Allocation Group 1, the sum of the amounts described in
clauses (e)
through (g) of the definition of Principal Amount for Collateral
Allocation
Group 1 for that Distribution Date.
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 Rate: For the Interest Accrual Period for each
Distribution Date a per annum rate equal to the sum of (i) 5.75%
multiplied by
the excess of the sum of the related Applicable Fraction for
Collateral
Allocation Group 1 of the aggregate Stated Principal Balance of
each Mortgage
Loan included in Collateral Allocation Group 1 as of the Due Date
in the month
preceding the month of that Distribution Date (after giving effect
to Principal
Prepayments received in the Prepayment Period related to that Due
Date) over the
aggregate Class Certificate Balance of the Group 1 Senior
Certificates
immediately prior to that Distribution Date and (ii) 7.00%
multiplied by the
excess of the sum of the related Applicable Fraction for Collateral
Allocation
Group 2 of the aggregate Stated Principal Balance of each Mortgage
Loan included
in Collateral Allocation Group 2 as of the Due Date in the month
preceding the
month of that Distribution Date (after giving effect to Principal
Prepayments
received in the Prepayment Period related to that Due Date) over
the aggregate
Class Certificate Balance of the Group 2 Senior Certificates
immediately prior
to that Distribution Date and divided by the aggregate Class
Certificate Balance
of the Subordinated Certificates immediately prior to that
Distribution Date.
Withdrawal
Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business Day.
Section
1.02 Rules of Construction.
Except as
otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a) References to designated articles, sections, subsections,
exhibits,
and other
subdivisions of this Agreement, such as "Section 6.12 (a),"
refer
to the
designated article, section, subsection, exhibit, or other
subdivision
of this
Agreement as a whole and to all subdivisions of the designated
article,
section, subsection, exhibit, or other subdivision. The words
"herein,"
"hereof," "hereto," "hereunder," and other words of similar
import
refer to this
Agreement as a whole and not to any particular article,
section,
exhibit, or other subdivision of this Agreement.
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<PAGE>
(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.
(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.
(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 Loan and either language indicating that the Mortgage
Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage
Loan was
not a MOM Loan at origination, the original Mortgage and the
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<PAGE>
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).
In addition, in connection with the assignment of any MERS
Mortgage
Loan, the Seller agrees that it will cause, at the Seller's
expense, the MERS(R)
System to indicate that the Mortgage Loans sold by the Seller to
the Depositor
have been assigned by the Seller to the Trustee in accordance with
this
Agreement for the benefit of the Certificateholders by including
(or deleting,
in the case of Mortgage Loans that are repurchased in accordance
with this
Agreement) in such computer files the information required by the
MERS(R) System
to identify the series of the Certificates issued in connection
with such
Mortgage Loans. The Seller further agrees that it will not, and
will not permit
the Servicer to, and the Servicer agrees that it will not, alter
the information
referenced in this paragraph with respect to any Mortgage Loan sold
by the
Seller to the Depositor during the term of this Agreement unless
and until such
Mortgage Loan is repurchased in accordance with the terms of this
Agreement.
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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.
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
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(y) (A) repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section
2.03 (treating each such Delay Delivery Mortgage Loan as a
Deleted
Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails to deliver a Mortgage
File for any
Delay Delivery Mortgage Loan within the period specified herein,
the Seller
shall use its best reasonable efforts to effect a substitution,
rather than a
repurchase of, such Deleted Mortgage Loan and provided further that
the cure
period provided for in Section 2.02 or in Section 2.03 shall not
apply to the
initial delivery of the Mortgage File for such Delay Delivery
Mortgage Loan, but
rather the Seller shall have five (5) Business Days to cure such
failure to
deliver. At the end of such period, the Trustee shall send a Delay
Delivery
Certification for the Delay Delivery Mortgage Loans delivered
during such period
in accordance with the provisions of Section 2.02.
(d) The Seller agrees to treat the transfer of the Mortgage Loans
to
the Depositor as
a sale for all tax, accounting, and regulatory purposes.
(e) The Trust Fund does not intend to acquire or hold any Mortgage
Loan
that would
violate the representations made by the Seller set forth in
clause
(28) of Schedule
III.
(f) Notwithstanding the foregoing, however, for administrative
convenience and
facilitation of servicing and to reduce closing costs, the
assignments of
Mortgage shall not be required to be submitted for recording
(except with
respect to any Mortgage Loan located in Maryland) unless such
failure to
record would, as certified to the Trustee in writing by the
Servicer, result
in a withdrawal or a downgrading by any Rating Agency of
the rating on
any Class of Certificates; provided, however, that each
assignment of
Mortgage shall be submitted for recording by the Seller
(at the
direction of the Servicer) in the manner described above, at no
expense to the
Trust Fund or the Trustee, upon the earliest to occur of: (i)
reasonable
direction by the Holders of Certificates entitled to at least
25%
of the Voting
Rights, (ii) [reserved], (iii) the occurrence of a bankruptcy,
insolvency or
foreclosure relating to the Seller, (iv) the occurrence of a
servicing
transfer as described in Section 7.02 hereof and (v) if the
Seller
is not the
Servicer and with respect to any one assignment or Mortgage,
the
occurrence of a
bankruptcy, insolvency or foreclosure relating to the
Mortgagor under
the related Mortgage. Notwithstanding the foregoing, if the
Servicer is
unable to pay the cost of recording the assignments of
Mortgage,
such expense
shall be paid by the Trustee and shall be reimbursable out of
the Distribution
Account.
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
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examine said documents, instruments, certificates or other papers
to determine
that the same are genuine, enforceable or appropriate for the
represented
purpose or that they have actually been recorded in the real estate
records or
that they are other than what they purport to be on their face.
By the
thirtieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall
deliver to the
Depositor, the Servicer, and the Seller a Delay Delivery
Certification with
respect to the Mortgage Loans substantially in the form of Exhibit
G-2, with any
applicable exceptions noted thereon.
By the
ninetieth day after the Closing Date (or if that day is not a
Business Day, the succeeding Business Day), the Trustee shall
deliver to the
Depositor, the Servicer and the Seller a Final Certification with
respect to the
Mortgage Loans in the form of Exhibit H, with any applicable
exceptions noted
thereon.
If, in the
course of its review, the Trustee finds any document
constituting a part of a Mortgage File that does not meet the
requirements of
Section 2.01, the Trustee shall list such as an exception in the
Final
Certification. The Trustee shall not make any determination as to
whether (i)
any endorsement is sufficient to transfer all interest of the party
so
endorsing, as noteholder or assignee thereof, in that Mortgage Note
or (ii) any
assignment is in recordable form or is sufficient to effect the
assignment of
and transfer to the assignee thereof under the mortgage to which
the assignment
relates. The Seller shall promptly correct any defect that
materially and
adversely affects the interests of the Certificateholders within 90
days from
the date it was so notified of the defect and, if the Seller does
not correct
the defect within that period, the Seller shall either (a)
substitute for the
related Mortgage Loan a Substitute Mortgage Loan, which
substitution shall be
accomplished in the pursuant Section 2.03, or (b) purchase the
Mortgage Loan at
its Purchase Price from the Trustee within 90 days from the date
the Seller was
notified of the defect in writing.
If a
substitution or purchase of a Mortgage Loan pursuant to this
provision is required because of a delay in delivery of any
documents by the
appropriate recording office, or there is a dispute between either
the Servicer
or the Seller and the Trustee over the location or status of the
recorded
document, then the substitution or purchase shall occur within 720
days from the
Closing Date. In no other case may a substitution or purchase occur
more than
540 days from the Closing Date. 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
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,
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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 the representations or warranties made
pursuant to
clauses (28) and (33) of Schedule III will be deemed to
materially and
adversely affect the interests of the Certificateholder in the
related Mortgage
Loan. The Seller covenants that within 90 days of the
earlier of its
discovery or its receipt of written notice from any party of a
breach of any
representation or warranty made pursuant to Section 2.03(b)
which materially
and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach
in all
material
respects, and if such breach is not so cured, shall, (i) if the
90-day period
expires before the second anniversary of the Closing Date,
remove the
Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund
and
substitute in
its place a Substitute Mortgage Loan, in accordance with this
Section 2.03; or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans
from the Trustee
at the Purchase Price in the manner set forth below. Any
substitution
pursuant to (i) above shall not be effected before the delivery
to the Trustee
of the Opinion of Counsel required by Section 2.05, and a
Request for
Release substantially in the form of Exhibit N, and the
Mortgage
File for any
Substitute Mortgage Loan. The Seller shall promptly reimburse
the Servicer and
the Trustee for any expenses reasonably incurred by the
Servicer or the
Trustee in respect of enforcing the remedies for the breach.
With
respect to any Substitute Mortgage Loan or Loans, the Seller
shall
deliver to the Trustee for the benefit of the Certificateholders
the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and
such other
documents and agreements as are required by Section 2.01, with the
Mortgage Note
endorsed and the Mortgage assigned as required by Section 2.01. No
substitution
is permitted to be made in any calendar month after the
Determination Date for
such month. Scheduled Payments due with respect to Substitute
Mortgage Loans in
the month of substitution shall not be part of the Trust Fund and
will be
retained by the Seller on the next succeeding Distribution Date.
For the month
of substitution, distributions to Certificateholders will include
the monthly
payment due on any Deleted Mortgage Loan for such month and
thereafter the
Seller shall be entitled to retain all amounts received in respect
of such
Deleted Mortgage Loan.
The
Servicer shall amend the Mortgage Loan Schedule for the benefit of
the
Certificateholders to reflect the removal of the Deleted Mortgage
Loan and the
substitution of the Substitute Mortgage Loans and the Servicer
shall deliver the
amended Mortgage Loan Schedule to the Trustee. Upon the
substitution, the
Substitute Mortgage Loans shall be subject to this Agreement in all
respects,
and the
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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 and shall not be waived by the
Depositor.
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 the
Servicer shall
have previously received the 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
to a Mortgage Loan in excess of the Purchase Price shall be
retained by the
Servicer as additional servicing compensation. The Trustee, upon
receipt of
certification from the Servicer of the deposit of the Purchase
Price in
connection with a repurchase of a Mortgage Loan and a Request for
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
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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 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.
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Section
2.07 REMIC Matters.
The
Preliminary Statement sets forth the designations and "latest
possible
maturity date" for federal income tax purposes of all interests
created under
this Agreement. The "Startup Day" for purposes of the REMIC
Provisions shall be
the Closing Date. Each REMIC's fiscal year shall be the calendar
year.
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ARTICLE THREE
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section
3.01 Servicer to Service Mortgage Loans.
For and on
behalf of the Certificateholders, the Servicer shall service
and administer the Mortgage Loans in accordance with this Agreement
and the
Servicing Standard.
The
Servicer shall not make or permit any modification, waiver, or
amendment of any term of any Mortgage Loan that would cause any
REMIC created
under this Agreement to fail to qualify as a REMIC or result in the
imposition
of any tax under section 860F(a) or section 860G(d) of the
Code.
Without
limiting the generality of the foregoing, the Servicer, in its
own
name or in the name of the Depositor and the Trustee, is hereby
authorized and
empowered by the Depositor and the Trustee, when the Servicer
believes it
appropriate in its reasonable judgment, to execute and deliver, on
behalf of the
Trustee, the Depositor, the Certificateholders, or any of them, any
instruments
of satisfaction or cancellation, or of partial or full release or
discharge, and
all other comparable instruments, with respect to the Mortgage
Loans, and with
respect to the Mortgaged Properties held for the benefit of the
Certificateholders. The Servicer shall prepare and deliver to the
Depositor or
the Trustee any documents requiring execution and delivery by
either or both of
them appropriate to enable the Servicer to service and administer
the Mortgage
Loans to the extent that the Servicer is not permitted to execute
and deliver
such documents pursuant to the preceding sentence. Upon receipt of
the
documents, the Depositor or the Trustee shall execute the documents
and deliver
them to the Servicer.
The
Servicer further is authorized and empowered by the Trustee, on
behalf
of the Certificateholders and the Trustee, in its own name, when
the Servicer
believes it appropriate in its best judgment to register any
Mortgage Loan on
the MERS(R) System, or cause the removal from the registration of
any Mortgage
Loan on the MERS(R) System, to execute and deliver, on behalf of
the Trustee and
the Certificateholders or any of them, any and all instruments of
assignment and
other comparable instruments with respect to such assignment or
re-recording of
a Mortgage in the name of MERS, solely as nominee for the Trustee
and its
successors and assigns.
In
accordance with and to the extent of the Servicing Standard,
the
Servicer shall advance funds necessary to effect the payment of
taxes and
assessments on the Mortgaged Properties, which advances shall be
reimbursable in
the first instance from related collections from the Mortgagors
pursuant to
Section 3.07, and further as provided in Section 3.09. The costs
incurred by the
Servicer in effecting the timely payments of taxes and assessments
on the
Mortgaged Properties and related insurance premiums shall not, for
the purpose
of calculating monthly distributions to the Certificateholders, be
added to the
Stated Principal Balances of the related Mortgage Loans,
notwithstanding that
the Mortgage Loans so permit.
Nothing in
this Agreement to the contrary shall limit the Servicer from
undertaking any legal action that it may deem appropriate with
respect to the
Mortgage Loans including, without limitation, any rights or causes
of action
arising out of the origination of the Mortgage Loans.
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Section
3.02 [Reserved].
Section
3.03 Rights of the Depositor and the Trustee in Respect of the
Servicer.
The
Depositor may, but is not obligated to, enforce the obligations of
the
Servicer under this Agreement and may, but is not obligated to,
perform, or
cause a designee to perform, any defaulted obligation of the
Servicer under this
Agreement and in connection with any such defaulted obligation to
exercise the
related rights of the Servicer under this Agreement; provided that
the Servicer
shall not be relieved of any of its obligations under this
Agreement by virtue
of such performance by the Depositor or its designee. Neither the
Trustee nor
the Depositor shall have any responsibility or liability for any
action or
failure to act by the Servicer nor shall the Trustee or the
Depositor be
obligated to supervise the performance of the Servicer under this
Agreement or
otherwise.
Section
3.04 [Reserved].
Section
3.05 Trustee to Act as Servicer.
If the
Servicer for any reason is no longer the Servicer under this
Agreement (including because of the occurrence or existence of an
Event of
Default 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,
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consistent with
the Servicing Standard, waive, modify or vary any term
of that Mortgage
Loan (including modifications that change the Mortgage
Rate, forgive
the payment of principal or interest or extend the final
maturity date of
that Mortgage Loan ), accept payment from the related
Mortgagor of an
amount less than the Stated Principal Balance in final
satisfaction of
that Mortgage Loan, or consent to the postponement of
strict
compliance with any such term or otherwise grant indulgence to
any
Mortgagor if in
the Servicer's determination such waiver, modification,
postponement or
indulgence is not materially adverse to the interests of
the
Certificateholders (taking into account any estimated loss that
might
result absent
such action) and is expected to minimize the loss on such
Mortgage Loan;
provided, however, the Servicer shall not initiate new
lending to such
Mortgagor through the Trust and cannot, except as provided
in the
immediately succeeding sentence, extend the maturity of any
Mortgage
Loan past the
date on which the final payment is due on the latest maturing
Mortgage Loan as
of the Cut-off Date. With respect to no more than 5% of
the Mortgage
Loans (measured by aggregate Cut-off Date Principal Balance of
the Mortgage
Loans), the Servicer may extend the maturity of a Mortgage
Loan past the
date on which the final payment is due on the latest maturing
Mortgage Loan as
of the Cut-off Date, but in no event more than one year
past such date.
In the event of any such arrangement, the Servicer shall
make Advances on
the related Mortgage Loan in accordance with Section 4.01
during the
scheduled period in accordance with the amortization schedule
of
the Mortgage
Loan without modification thereof because of the arrangements.
The Servicer
shall not be required to institute or join in litigation with
respect to
collection of any payment (whether under a Mortgage, Mortgage
Note, or
otherwise or against any public or governmental authority with
respect to a
taking or condemnation) if it reasonably believes that
enforcing the
provision of the Mortgage or other instrument pursuant to
which the
payment is required is prohibited by applicable law. The
Servicer
shall not have
the discretion to sell any Delinquent or defaulted Mortgage
Loan.
(b)
[Reserved].
(c) [Reserved].
(d) The Servicer shall establish and maintain a Certificate
Account
into which the
Servicer shall deposit on a daily basis (i) 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
54
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later than the
second Business Day preceding the related Distribution
Account Deposit
Date (except that if the Permitted Investment is an
obligation of
the institution that maintains the account, then the
Permitted
Investment shall mature not later than the Business Day
preceding the
Distribution Account Deposit Date) and which shall not be
sold or disposed
of before its maturity. The funds in the Distribution
Account shall
remain uninvested. All such Permitted Investments shall be
made in the name
of the Trustee, for the benefit of the
Certificateholders. All income realized from any such investment
of
funds on deposit
in the Certificate Account shall be for the benefit of
the Servicer as
servicing compensation and shall be remitted to it
monthly as
provided in this Agreement. The amount of any realized losses
on Permitted
Investments in the Certificate Account shall promptly be
deposited by the
Servicer in the Certificate Account. The Trustee shall
not be liable
for the amount of any loss incurred in respect of any
investment or
lack of investment of funds held in the Certificate
Account and made
in accordance with this Section 3.06.
(g) [Reserved].
(h) The Servicer shall give notice to the Trustee, the Seller,
each
Rating Agency
and the Depositor of any proposed change of the location of
the Certificate
Account not later than 30 days and not more than 45 days
prior to any
change of this Agreement. The Trustee shall give notice to the
Servicer, the
Seller, each Rating Agency and the Depositor of any proposed
change of the
location of the Distribution Account not later than 30 days
and not more
than 45 days prior to any change of this Agreement.
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.
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<PAGE>
Section
3.08 Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The
Servicer shall afford the Depositor and the Trustee reasonable
access
to all records and documentation regarding the Mortgage Loans and
all accounts,
insurance information and other matters relating to this Agreement,
such access
being afforded without charge, but only upon reasonable request and
during
normal business hours at the office designated by the Servicer.
Upon
reasonable advance notice in writing, the Servicer will provide
to
each Certificateholder or Certificate Owner that is a savings and
loan
association, bank, or insurance company certain reports and
reasonable access to
information and documentation regarding the Mortgage Loans
sufficient to permit
the Certificateholder or Certificate Owner to comply with
applicable regulations
of the OTS or other regulatory authorities with respect to
investment in the
Certificates. The Servicer shall be entitled to be reimbursed by
each such
Certificateholder or Certificate Owner for actual expenses incurred
by the
Servicer in providing the reports and access.
Section
3.09 Permitted Withdrawals from the Certificate Account and the
Distribution Account.
(a) The Servicer may (and, in the case of clause (ix) below,
shall)
from time to
time make withdrawals from the Certificate Account for the
following
purposes:
(i) to pay to the Servicer (to the extent not previously
retained)
the
servicing compensation to which it is entitled pursuant to
Section
3.15, and
to pay to the Servicer, as additional 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;
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(viii) to withdraw any amount deposited in the Certificate
Account
and not required
to be deposited in the Certificate Account;
(ix) by the Distribution Account Deposit Date, to withdraw (1)
the
Available
Funds and the Trustee Fee for the Distribution Date, to the
extent on
deposit, and (2) the Prepayment Charges on deposit, and remit
such
amount to the Trustee for deposit in the Distribution Account;
and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
The Servicer
shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, to justify any withdrawal from the
Certificate
Account pursuant to subclauses (i), (ii), (iv), (v), and (vi).
Before making any
withdrawal from the Certificate Account pursuant to subclause
(iii), the
Servicer shall deliver to the Trustee an Officer's Certificate of a
Servicing
Officer indicating the amount of any previous Advance determined by
the Servicer
to be a Nonrecoverable Advance and identifying the related Mortgage
Loans and
their respective portions of the Nonrecoverable Advance.
(b) The Trustee shall withdraw funds from the Distribution
Account
for
distributions to Certificateholders in the manner specified in
this
Agreement (and
to withhold from the amounts so withdrawn the amount of any
taxes that it is
authorized to withhold pursuant to the last paragraph of
Section 8.11).
In addition, the Trustee may from time to time make
withdrawals from
the Distribution Account for the following purposes:
(i) to pay to itself the Trustee Fee for the related
Distribution
Date;
(ii) to withdraw and return to the Servicer any amount
deposited
in the
Distribution Account and not required to be deposited therein;
and
(iii) to clear and terminate the Distribution Account upon
termination of the Agreement pursuant to Section 9.01.
(c) [Reserved].
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
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calculating monthly distributions to the Certificateholders or
remittances to
the Trustee for their benefit, be added to the principal balance of
the
Mortgage Loan, notwithstanding that the Mortgage Loan so permits.
Such costs
shall be recoverable by the Servicer out of late payments by the
related
Mortgagor or out of Liquidation Proceeds to the extent permitted by
Section
3.09. No earthquake or other additional insurance is to be required
of any
Mortgagor or maintained on property acquired in respect of a
Mortgage other
than pursuant to any applicable laws and regulations in force that
require
additional insurance. If the Mortgaged Property is located at the
time of
origination of the Mortgage Loan in a federally designated special
flood
hazard area and the area is participating in the national flood
insurance
program, the Servicer shall maintain flood insurance for the
Mortgage Loan.
The flood insurance shall be in an amount equal to the least of (i)
the
original principal balance of the related Mortgage Loan, (ii) the
replacement
value of the improvements that are part of the Mortgaged Property,
and (iii)
the maximum amount of flood insurance available for the related
Mortgaged
Property under the national flood insurance program.
If the
Servicer obtains and maintains a blanket policy insuring
against
hazard losses on all of the Mortgage Loans, it shall have satisfied
its
obligations in the first sentence of this Section 3.10. The policy
may contain a
deductible clause on terms substantially equivalent to those
commercially
available and maintained by comparable servicers. If the policy
contains a
deductible clause and a policy complying with the first sentence of
this Section
3.10 has not been maintained on the related Mortgaged Property, and
if a loss
that would have been covered by the required policy occurs, the
Servicer shall
deposit in the Certificate Account, without any right of
reimbursement, the
amount not otherwise payable under the blanket policy because of
the deductible
clause. In connection with its activities as Servicer of the
Mortgage Loans, the
Servicer agrees to present, on behalf of itself, the Depositor, and
the Trustee
for the benefit of the Certificateholders, claims under any blanket
policy.
(b) The Servicer shall not take any action that would result in
non-coverage
under any applicable Primary Insurance Policy of any loss
that, but for
the actions of the Servicer, would have been 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
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Servicer is not
required to exercise these rights with respect to a
Mortgage Loan if
the Person to whom the related Mortgaged Property has
been conveyed or
is proposed to be conveyed satisfies the conditions
contained in the
Mortgage Note and Mortgage related thereto and the
consent of the
mortgagee under the Mortgage Note or Mortgage is not
otherwise so
required under the Mortgage Note or Mortgage as a condition
to the
transfer.
If (i) the
Servicer is prohibited by law from enforcing any due-on-sale
clause, (ii) coverage under any Required Insurance Policy would be
adversely
affected, (iii) the Mortgage Note does not include a due-on-sale
clause, or (iv)
nonenforcement is otherwise permitted hereunder, the Servicer is
authorized,
subject to Section 3.11(b), to take or enter into an assumption and
modification
agreement from or with the person to whom the property has been or
is about to
be conveyed, pursuant to which the person becomes liable under the
Mortgage Note
and, unless prohibited by applicable state law, the Mortgagor
remains liable
thereon. The Mortgage Loan must continue to be covered (if so
covered before the
Servicer enters into the agreement) by the applicable Required
Insurance
Policies.
The
Servicer, subject to Section 3.11(b), is also authorized with
the
prior approval of the insurers under any Required Insurance
Policies to enter
into a substitution of liability agreement with the Person,
pursuant to which
the original Mortgagor is released from liability and the Person is
substituted
as Mortgagor and becomes liable under the Mortgage Note.
Notwithstanding the
foregoing, the Servicer shall not be deemed to be in default under
this Section
3.11 because of any transfer or assumption that the Servicer
reasonably believes
it is restricted by law from preventing, for any reason
whatsoever.
(b) Subject to the Servicer's duty to enforce any due-on-sale
clause
to the extent
set forth in Section 3.11(a), in any case in which a
Mortgaged
Property has been conveyed to a Person by a Mortgagor, and the
Person is to
enter into an assumption agreement or modification agreement
or supplement to
the Mortgage Note or Mortgage that requires the signature
of the Trustee,
or if an instrument of release signed by the Trustee is
required
releasing the Mortgagor from liability on the Mortgage Loan,
the
Servicer shall
prepare and deliver to the Trustee for signature and shall
direct the
Trustee, in writing, to execute the assumption agreement with
the Person to
whom the Mortgaged 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
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come into and continue in default and as to which no satisfactory
arrangements
can be made for collection of delinquent payments. In connection
with the
foreclosure or other conversion, the Servicer shall follow the
Servicing
Standard and shall follow the requirements of the insurer under any
Required
Insurance Policy. The Servicer shall not be required to expend its
own funds
in connection with any foreclosure or towards the restoration of
any property
unless it determines (i) that the restoration or foreclosure will
increase the
proceeds of liquidation of the Mortgage Loan after reimbursement to
itself of
restoration expenses and (ii) that restoration expenses will be
recoverable to
it through Liquidation Proceeds (respecting which it shall have
priority for
purposes of withdrawals from the Certificate Account). The Servicer
shall be
responsible for all other costs and expenses incurred by it in any
foreclosure
proceedings. The Servicer is entitled to reimbursement of such
costs and
expenses from the liquidation proceeds with respect to the related
Mortgaged
Property, as provided in the definition of Liquidation Proceeds. If
the
Servicer has knowledge that a Mortgaged Property that the Servicer
is
contemplating acquiring in foreclosure or by deed in lieu of
foreclosure is
located within a one mile radius of any site listed in the
Expenditure Plan
for the Hazardous Substance Clean Up Bond Act of 1984 or other site
with
environmental or hazardous waste risks known to the Servicer, the
Servicer
will, before acquiring the Mortgaged Property, consider the risks
and only
take action in accordance with its established environmental
review
procedures.
With
respect to any REO Property, the deed or certificate of sale shall
be
taken in the name of the Trustee for the benefit of the
Certificateholders, or
its nominee, on behalf of the Certificateholders. The Trustee's
name shall be
placed on the title to the REO Property solely as the Trustee
hereunder and not
in its individual capacity. The Servicer shall ensure that the
title to the REO
Property references the Pooling and Servicing Agreement and the
Trustee's
capacity hereunder. Pursuant to its efforts to sell the REO
Property, the
Servicer shall either itself or through an agent selected by the
Servicer
protect and conserve the REO Property in accordance with the
Servicing Standard.
The
Servicer shall perform the tax reporting and withholding required
by
sections 1445 and 6050J of the Code with respect to foreclosures
and
abandonments, the tax reporting required by section 6050H of the
Code with
respect to the receipt of mortgage interest from individuals and,
if required by
section 6050P of the Code with respect to the cancellation of
indebtedness by
certain financial entities, by preparing any required tax and
information
returns, in the form required.
If the
Trust Fund acquires any Mortgaged Property as aforesaid or
otherwise in connection with a default or imminent default on a
Mortgage Loan,
the REO Property shall only be held temporarily, shall be actively
marketed for
sale, and the Servicer shall dispose of the Mortgaged Property as
soon as
practicable, and in any case before the end of the third calendar
year following
the calendar year in which the Trust Fund acquires the property.
Notwithstanding
any other provision of this Agreement, no Mortgaged Property
acquired by the
Trust Fund shall be rented (or allowed to continue to be rented) or
otherwise
used for the production of income by or on behalf of the Trust
Fund.
The
decision of the Servicer to foreclose on a defaulted Mortgage
Loan
shall be subject to a determination by the Servicer that the
proceeds of the
foreclosure would exceed the costs and expenses of bringing a
foreclosure
proceeding. The proceeds received from the maintenance of any REO
Properties,
net of reimbursement to the Servicer for costs incurred (including
any property
or other taxes) in connection with maintenance of the REO
Properties and net of
unreimbursed Servicing Fees, Advances, and Servicing Advances,
shall be applied
to the payment of principal of and interest on the related
defaulted Mortgage
Loans (with interest accruing as though the Mortgage Loans were
still current
and adjustments, if applicable, to the Mortgage Rate were being
made in
accordance with the Mortgage Note) and all such proceeds shall be
deemed, for
all purposes in this Agreement, to be payments on account of
principal and
interest on the related Mortgage Notes and shall be deposited into
the
Certificate Account. To the extent the net proceeds received during
any calendar
month exceeds the amount attributable to
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amortizing principal and accrued interest at the related Mortgage
Rate on the
related Mortgage Loan for the calendar month, the excess shall be
considered
to be a partial prepayment of principal of the related Mortgage
Loan.
The
proceeds from any liquidation of a Mortgage Loan, as well as
any
proceeds from an REO Property, will be applied in the following
order of
priority: first, to reimburse the Servicer for any related
unreimbursed
Servicing Advances or Servicing Fees or for any related
unreimbursed Advances,
as applicable; second, to reimburse the Servicer, as applicable,
and to
reimburse the Certificate Account for any Nonrecoverable Advances
(or portions
thereof) that were previously withdrawn by the Servicer pursuant to
Section
3.09(a)(iii) that related to the Mortgage Loan; third, to accrued
and unpaid
interest (to the extent no Advance has been made for such amount or
any such
Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at
the Adjusted Net Mortgage Rate to the Due Date occurring in the
month in which
such amounts are required to be distributed; and fourth, as a
recovery of
principal of the Mortgage Loan. The Servicer will retain any Excess
Proceeds
from the liquidation of a Liquidated Mortgage Loan as additional
servicing
compensation pursuant to Section 3.15.
The
Servicer may agree to a modification of any Mortgage Loan at
the
request of the related Mortgagor if (i) the modification is in lieu
of a
refinancing and (ii) the Servicer purchases that Mortgage Loan from
the Trust
Fund as described below. Upon the agreement of the Servicer to
modify a Mortgage
Loan in accordance with the preceding sentence, the Servicer shall
purchase that
Mortgage Loan and all interest of the Trustee in that Mortgage Loan
shall
automatically be deemed transferred and assigned to the Servicer
and all
benefits and burdens of ownership thereof, including the right to
accrued
interest thereon from the date of purchase and the risk of default
thereon,
shall pass to the Servicer. The Servicer shall promptly deliver to
the Trustee a
certification of a Servicing Officer to the effect that all
requirements of this
paragraph have been satisfied with respect to a Mortgage Loan to be
repurchased
pursuant to this paragraph.
The
Servicer shall deposit the Purchase Price for any Mortgage Loan
repurchased pursuant to Section 3.12 in the Certificate Account
pursuant to
Section 3.06 within one Business Day after the purchase of the
Mortgage Loan.
Upon receipt by the Trustee of written notification of any such
deposit signed
by a Servicing Officer, the Trustee shall release to the Servicer
the related
Mortgage File and shall execute and deliver such instruments of
transfer or
assignment, in each case without recourse, as shall be necessary to
vest in the
Servicer any Mortgage Loan previously transferred and assigned
pursuant hereto.
The Servicer covenants and agrees to indemnify the Trust Fund
against any
liability for any "prohibited transaction" taxes and any related
interest,
additions, and penalties imposed on the Trust Fund established
hereunder as a
result of any modification of a Mortgage Loan effected pursuant to
this Section,
or any purchase of a Mortgage Loan by the Servicer in connection
with a
modification (but such obligation shall not prevent the Servicer or
any other
appropriate Person from contesting any such tax in appropriate
proceedings and
shall not prevent the Servicer from withholding payment of such
tax, if
permitted by law, pending the outcome of such proceedings). The
Servicer shall
have no right of reimbursement for any amount paid pursuant to the
foregoing
indemnification, except to the extent that the amount of any tax,
interest, and
penalties, together with interest thereon, is refunded to the Trust
Fund.
Section
3.13 Trustee to Cooperate; Release of Mortgage Files.
Upon the
payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full will be escrowed in
a manner
customary for such purposes, the Servicer will immediately notify
the Trustee by
delivering a Request for Release substantially in the form of
Exhibit N. Upon
receipt of the request, the Trustee shall promptly release the
related Mortgage
File to the Servicer, and the Trustee shall at the Servicer's
direction execute
and deliver to the Servicer the request for reconveyance, deed of
reconveyance,
or release or satisfaction of mortgage or such instrument
releasing
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the lien of the Mortgage in each case provided by the Servicer,
together with
the Mortgage Note with written evidence of cancellation thereon.
The Servicer
is authorized to cause the removal from the registration on the
MERS System of
such Mortgage and to execute and deliver, on behalf of the Trustee
and the
Certificateholders or any of them, any and all instruments of
satisfaction or
cancellation or of partial or full release. Expenses incurred in
connection
with any instrument of satisfaction or deed of reconveyance shall
be
chargeable to the related Mortgagor.
From time
to time and as shall be appropriate for the servicing or
foreclosure of any Mortgage Loan, including for such purpose
collection under
any policy of flood insurance, any fidelity bond or errors or
omissions policy,
or for the purposes of effecting a partial release of any Mortgaged
Property
from the lien of the Mortgage or the making of any corrections to
the Mortgage
Note or the Mortgage or any of the other documents included in the
Mortgage
File, the Trustee shall, upon delivery to the Trustee of a Request
for Release
in the form of Exhibit M signed by a Servicing Officer, release the
Mortgage
File to the Servicer or its designee. Subject to the further
limitations set
forth below, the Servicer shall cause the Mortgage File or
documents so released
to be returned to the Trustee when the need therefor by the
Servicer no longer
exists, unless the Mortgage Loan is liquidated and the proceeds
thereof are
deposited in the Certificate Account, in which case the Servicer
shall deliver
to the Trustee a Request for Release in the form of Exhibit N,
signed by a
Servicing Officer.
If the
Servicer at any time seeks to initiate a foreclosure proceeding
in
respect of any Mortgaged Property as authorized by this Agreement,
the Servicer
shall deliver to the Trustee, for signature, as appropriate, any
court
pleadings, requests for trustee's sale, or other documents
necessary to
effectuate such foreclosure or any legal action brought to obtain
judgment
against the Mortgagor on the Mortgage Note or the Mortgage or to
obtain a
deficiency judgment or to enforce any other remedies or rights
provided by the
Mortgage Note or the Mortgage or otherwise available at law or in
equity.
Section
3.14 Documents, Records and Funds in Possession of the Servicer
to be Held for the Trustee.
The
Servicer shall account fully to the Trustee for any funds it
receives
or otherwise collects as Liquidation Proceeds or Insurance Proceeds
in respect
of any Mortgage Loan. All Mortgage Files and funds collected or
held by, or
under the control of, the Servicer in respect of any Mortgage
Loans, whether
from the collection of principal and interest payments or from
Liquidation
Proceeds, including any funds on deposit in the Certificate
Account, shall be
held by the Servicer for and on behalf of the Trustee and shall be
and remain
the sole and exclusive property of the Trustee, subject to the
applicable
provisions of this Agreement. The Servicer also agrees that it
shall not create,
incur or subject any Mortgage File or any funds that are deposited
in the
Certificate Account, Distribution Account, or any Escrow Account,
or any funds
that otherwise are or may become due or payable to the Trustee for
the benefit
of the Certificateholders, to any claim, lien, security interest,
judgment,
levy, writ of attachment, or other encumbrance, or assert by legal
action or
otherwise any claim or right of setoff against any Mortgage File or
any funds
collected on, or in connection with, a Mortgage Loan, except,
however, that the
Servicer shall be entitled to set off against and deduct from any
such funds any
amounts that are properly due and payable to the Servicer under
this Agreement.
Section
3.15 Servicing Compensation.
As
compensation for its activities hereunder, the Servicer may retain
or
withdraw from the Certificate Accoun
