INDYMAC MBS, INC.
Depositor
INDYMAC BANK, F.S.B.
Seller and Master Servicer
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
----------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2004
----------------------------------------
INDYMAC INDX MORTGAGE LOAN TRUST
2004-AR12
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2004-AR12
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS.....................................................................................................8
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Section 1.01
Definitions......................................................................................8
Section 1.02 Rules of
Construction...........................................................................36
ARTICLE TWO CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND
WARRANTIES...................................................38
Section 2.01 Conveyance of Mortgage
Loans....................................................................38
Section 2.02 Acceptance by the
Trustee of the Mortgage
Loans.................................................42
Section 2.03 Representations,
Warranties, and Covenants of the Seller and the Master
Servicer................43
Section 2.04 Representations and
Warranties of the Depositor as to the Mortgage
Loans........................45
Section 2.05 Delivery of Opinion of
Counsel in Connection with Substitutions and
Repurchases.................45
Section 2.06 Execution and Delivery
of
Certificates..........................................................45
Section 2.07 REMIC
Matters...................................................................................46
ARTICLE THREE ADMINISTRATION AND SERVICING
OF MORTGAGE
LOANS...............................................................47
Section 3.01 Master Servicer to
Service Mortgage
Loans.......................................................47
Section 3.02
Subservicing; Enforcement of the Obligations of
Subservicers....................................47
Section 3.03 Rights of the
Depositor and the Trustee in Respect of the Master
Servicer.......................48
Section 3.04 No Contractual
Relationship Between Subservicers and the
Trustee................................48
Section 3.05 Trustee to Act as
Master
Servicer...............................................................48
Section 3.06 Collection of Mortgage
Loan Payments; Servicing Accounts; Collection Account;
Certificate
Account; Distribution Account; Yield Maintenance Reserve
Fund...................................49
Section 3.07 Collection of Taxes,
Assessments and Similar Items; Escrow
Accounts.............................53
Section 3.08 Access to Certain
Documentation and Information Regarding the Mortgage
Loans....................53
Section 3.09 Permitted Withdrawals
from the Certificate Account, the Distribution Account and the
Yield
Maintenance Reserve
Fund........................................................................54
Section 3.10 Maintenance of Hazard
Insurance; Maintenance of Primary Insurance
Policies......................55
Section 3.11 Enforcement of
Due-On-Sale Clauses; Assumption
Agreements.......................................56
Section 3.12 Realization Upon
Defaulted Mortgage
Loans.......................................................57
Section 3.13 Trustee to Cooperate;
Release of Mortgage
Files.................................................59
Section 3.14 Documents, Records and
Funds in Possession of the Master Servicer to be Held for the
Trustee.........................................................................................60
Section 3.15 Servicing
Compensation..........................................................................61
Section 3.16 Access to Certain
Documentation.................................................................61
Section 3.17 Annual Statement as to
Compliance...............................................................61
Section 3.18 Annual Independent
Public Accountants' Servicing Statement; Financial
Statements................62
i
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Section 3.19 Errors and Omissions
Insurance; Fidelity
Bonds..................................................62
Section 3.20 Notification of
Adjustments.....................................................................62
Section
3.21
Prepayment
Charges..............................................................................63
ARTICLE FOUR DISTRIBUTIONS AND ADVANCES BY
THE MASTER
SERVICER.............................................................64
Section 4.01
Advances........................................................................................64
Section 4.02 Priorities of
Distribution......................................................................65
Section 4.03
[Reserved]......................................................................................67
Section 4.04 Allocation of Net
Deferred
Interest.............................................................67
Section 4.05 Allocation of Realized
Losses...................................................................68
Section 4.06 Monthly Statements to
Certificateholders........................................................69
Section 4.07 Carryover Shortfall
Reserve
Fund................................................................71
Section 4.08 Determination of
Pass-Through Rates for LIBOR
Certificates......................................71
ARTICLE FIVE THE
CERTIFICATES..............................................................................................74
Section 5.01 The
Certificates................................................................................74
Section 5.02 Certificate Register;
Registration of Transfer and Exchange of
Certificates.....................74
Section 5.03 Mutilated, Destroyed,
Lost or Stolen
Certificates...............................................78
Section 5.04 Persons Deemed
Owners...........................................................................78
Section 5.05 Access to List of
Certificateholders' Names and
Addresses.......................................78
Section 5.06 Maintenance of Office
or
Agency.................................................................79
ARTICLE SIX THE DEPOSITOR AND THE MASTER
SERVICER..........................................................................80
Section 6.01 Respective Liabilities
of the Depositor and the Master
Servicer.................................80
Section 6.02 Merger or
Consolidation of the Depositor or the Master
Servicer.................................80
Section 6.03 Limitation on
Liability of the Depositor, the Seller, the Master Servicer, and
Others...........80
Section 6.04 Limitation on
Resignation of the Master
Servicer................................................81
ARTICLE SEVEN
DEFAULT......................................................................................................82
Section 7.01 Events of
Default...............................................................................82
Section 7.02 Trustee to Act;
Appointment of
Successor........................................................83
Section 7.03 Notification to
Certificateholders..............................................................84
ARTICLE EIGHT CONCERNING THE
TRUSTEE.......................................................................................85
Section 8.01 Duties of the
Trustee...........................................................................85
Section 8.02 Certain Matters
Affecting the
Trustee...........................................................85
Section 8.03 Trustee Not Liable for
Certificates or Mortgage
Loans...........................................87
Section 8.04 Trustee May Own
Certificates....................................................................87
Section 8.05 Trustee's Fees and
Expenses.....................................................................87
Section 8.06 Eligibility
Requirements for the
Trustee........................................................88
Section 8.07 Resignation and
Removal of the
Trustee..........................................................88
Section 8.08 Successor
Trustee...............................................................................89
Section 8.09 Merger or
Consolidation of the
Trustee..........................................................89
Section 8.10 Appointment of
Co-Trustee or Separate
Trustee...................................................89
ii
<PAGE>
Section 8.11 Tax
Matters.....................................................................................91
Section 8.12 Periodic
Filings................................................................................93
ARTICLE NINE
TERMINATION...................................................................................................95
Section 9.01 Termination upon
Liquidation or Purchase of the Mortgage
Loans..................................95
Section 9.02 Final Distribution on
the
Certificates..........................................................95
Section 9.03 Additional Termination
Requirements.............................................................97
ARTICLE TEN MISCELLANEOUS
PROVISIONS.......................................................................................98
Section
10.01
Amendment.......................................................................................98
Section 10.02
Recordation of Agreement;
Counterparts..........................................................99
Section 10.03
Governing
Law..................................................................................100
Section 10.04
Intention of
Parties...........................................................................100
Section 10.05
Notices........................................................................................100
Section 10.06
Severability of
Provisions.....................................................................101
Section 10.07
Assignment.....................................................................................101
Section 10.08
Limitation on Rights of
Certificateholders.....................................................101
Section 10.09
Inspection and Audit
Rights....................................................................102
Section 10.10
Certificates Nonassessable and Fully
Paid......................................................102
Section 10.11
Official
Record................................................................................102
Section 10.12
Protection of
Assets...........................................................................102
Section 10.13
Qualifying Special Purpose
Entity..............................................................103
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SCHEDULES
Schedule I:
Mortgage Loan
Schedule...............................................................................S-I-1
Schedule II:
Representations and Warranties of the Seller/Master
Servicer........................................S-II-1
Schedule III:
Representations and Warranties as to the Mortgage
Loans............................................S-III-1
Schedule IV: Form
of Monthly Report
EXHIBITS
Exhibit A:
Form of Senior Certificate (other than Notional Amount
Certificate)....................................A-1
Exhibit B:
Form of Subordinated
Certificate.......................................................................B-1
Exhibit C:
Form of Class A-R
Certificate..........................................................................C-1
Exhibit D:
Form of Notional Amount
Certificate....................................................................D-1
Exhibit E
Form of Reverse of
Certificates........................................................................E-1
Exhibit F:
Form of Class P
Certificates...........................................................................F-1
Exhibit G-1: Form
of Initial Certification of Trustee
............................................................G-1-1
Exhibit G-2: Form
of Delay Delivery
Certification.................................................................G-2-1
Exhibit H:
Form of Final Certification of
Trustee.................................................................H-1
Exhibit I:
Form of Transfer
Affidavit.............................................................................I-1
Exhibit J:
Form of Transferor
Certificate.........................................................................J-1
Exhibit K:
Form of Investment Letter (Non-Rule
144A)..............................................................K-1
Exhibit L:
Form of Rule 144A
Letter...............................................................................L-1
Exhibit M:
Form of Request for Release (for
Trustee)..............................................................M-1
Exhibit N:
Request for Release of
Documents.......................................................................N-1
Exhibit O:
Form of Trustee
Certification..........................................................................O-1
</TABLE>
iv
<PAGE>
THIS
POOLING AND SERVICING AGREEMENT, dated as of November 1, 2004,
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 master servicer (in that
capacity, the "Master Servicer"), and
Deutsche Bank National Trust Company, a
national banking association, as trustee
(the "Trustee"),
W I T N E S S E T H T H A T
In
consideration of the mutual agreements set forth in this
Agreement,
the parties agree as follows:
PRELIMINARY STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed
to
the Trustee in return for the Certificates.
As provided in this Agreement, the
Trustee shall elect that the Trust Fund
(exclusive of the Yield Maintenance
Agreement, the Yield Maintenance Reserve
Fund and the Carryover Shortfall
Reserve Fund) be treated for federal income
tax purposes as comprising three
real estate mortgage investment conduits
(each, a "REMIC" or, in the
alternative, "REMIC 1," "REMIC 2" and the
"Master REMIC"). Each Certificate,
other than the Class A-R Certificate, will
represent ownership of one or more
regular interests in the Master REMIC for
purposes of the REMIC Provisions.
The Class A-R represents ownership of the
sole class of residual interest in
each REMIC created under this Agreement.
The Master REMIC will hold as assets
the several classes of uncertificated REMIC
2 Interests (other than the Class
R-2 Interest). REMIC 2 will hold as assets
the several classes of
uncertificated REMIC 1 Interests (other
than the Class R-1 Interest). REMIC 1
will hold as assets all property of the
Trust Fund other than the Yield
Maintenance Agreement, the Yield
Maintenance Reserve Fund and the Carryover
Shortfall Reserve Fund. Each REMIC 2
Interest (other than the Class R-2
Interest) is hereby designated as a regular
interest in REMIC 2. Each REMIC 1
Interest (other than the Class R-1
Interest) is hereby designated as a regular
interest in REMIC 1. The latest possible
maturity date of all REMIC regular
interests created in this Agreement shall
be the Latest Possible Maturity
Date.
REMIC 1
The REMIC
1 Interests will have the initial Class Certificate Balances,
Pass-Through Rates and corresponding
Certificate Classes as set forth in the
following table:
REMIC 1 Interests
Initial Principal Amount
Pass-Through Rate
-----------------
------------------------
-----------------
1-A-1
$23,114,447.70
(1)
1-A-2
$21,727,827.13
(1)
1-A-3
$20,484,890.22
(1)
1-A-4
$19,312,833.78
(1)
1-A-5
$18,207,620.46
(1)
1-A-6
$17,165,442.61
(1)
1-A-7
$16,182,709.24
(1)
1-A-8
$15,256,033.69
(1)
1-A-9
$14,382,222.00
(1)
1-A-10
$13,559,636.89
(1)
1-A-11
$12,806,838.41
(1)
1-A-12
$12,071,008.37
(1)
1-A-13
$10,596,987.03
(1)
1-A-14
$9,966,871.88
(1)
1
<PAGE>
REMIC 1 Interests
Initial Principal Amount
Pass-Through Rate
-----------------
------------------------
-----------------
1-A-15
$9,373,466.14
(1)
1-A-16
$8,814,654.10
(1)
1-A-17
$8,288,441.29
(1)
1-A-18
$7,792,947.51
(1)
1-A-19
$7,326,400.32
(1)
1-A-20
$6,887,128.90
(1)
1-A-21
$6,473,558.21
(1)
1-A-22
$6,084,203.55
(1)
1-A-23
$5,717,665.39
(1)
1-A-24
$5,372,624.54
(1)
1-A-25
$5,047,837.48
(1)
1-A-26
$4,742,132.09
(1)
1-A-27
$4,454,403.59
(1)
1-A-28
$4,183,610.61
(1)
1-A-29
$3,928,771.67
(1)
1-A-30
$3,688,961.66
(1)
1-A-31
$3,463,308.66
(1)
1-A-32
$3,250,990.91
(1)
1-A-33
$3,051,233.90
(1)
1-A-34
$2,863,307.71
(1)
1-A-35
$2,686,524.41
(1)
1-A-36
$2,520,235.71
(1)
1-A-37
$1,983,218.99
(1)
1-A-38
$1,869,291.50
(1)
1-A-39
$30,592,711.75
(1)
1-Support
(2)
(1)
1-P
$100
(3)
1-$100
$100
(1)
R-1
(4)
(4)
-------------
(1) The Weighted Average
Adjusted Net Mortgage Rate of the Mortgage Loans.
(2) The excess of the principal
balance of the Mortgage Loans over the sum
of the
principal balances of the Class 1-A Interests.
(3) The Class 1-P will not bear
interest and will be entitled to all
Prepayment
Charges collected in respect of the Mortgage Loans.
(4) The Class R-1 Interest is
the sole class of residual interest in REMIC
1. It has
no principal balance and pays no principal or interest.
REMIC 2
The REMIC
2 Interests will have the initial Principal Balance and
Pass-Through Rates and corresponding
Certificate Classes as set forth in the
following table:
2
<PAGE>
Corresponding
Initial Principal Pass-Through
Certificate
REMIC 2 Interests
Balance(1)
Rate
Classes
-----------------
----------
----
-------
2-A-1
(1)
(2)
A-1
2-A-2
(1)
(2)
A-2
2-B-1
(1)
(3)
B-1
2-B-2
(1)
(3)
B-2
2-B-3
(1)
(3)
B-3
2-B-4
(1)
(3)
B-4
2-B-5
(1)
(3)
B-5
2-B-6
(1)
(3)
B-6
2-Accrual
(1)
(3)
N/A
2-A-X-1
(4)
.80%
N/A
2-P
$100
(5)
N/A
2-$100
$100
(3)
A-R
R-2
(6)
(6)
N/A
---------------
(1) On the Closing Date and on
each Distribution Date, Principal Amounts,
Net
Deferred Interest and Realized Losses will be allocated to the
REMIC
2
Interests in such a manner that, following such allocations: (i)
their
principal
balances will equal 50% of the Certificate Balance of their
Corresponding Certificates (except for the Class 2-$100 and Class
2-P
Interest,
whose principal balances will equal 100% of the Class
Certificate Balances of their Corresponding Certificates) for
such
Distribution Date, and (ii) the Class 2-Accrual Interest will have
a
principal
balance equal to 50% of the aggregate of the Stated Principal
Balances
of the Mortgage Loans (excluding any Net Deferred Interest)
plus 100%
of all Net Deferred Interest in respect of the Mortgage Loans.
(2) The Senior Net WAC Cap. For
federal income tax purposes, the weighted
average of
the Class 1-A Interests subtracting 80% from each REMIC 1
Interest designated
"1-A", whose cardinal number following such
designation (e.g. -1, -2, -3) is not exceeded by the ordinal number
of
the
Distribution Date following the Closing Date (e.g., first,
second,
third) for
such Distribution Date.
(3) The Weighted Average
Adjusted Net Mortgage Rate of the Mortgage Loans.
(4) For federal income tax
purposes, on each Distribution Date, the notional
amount of
the Class 2-A-X-1 Interests will equal the sum of the
principal
balances of each REMIC 1 Interest designated "1-A-", whose
cardinal
number following such designation (e.g. -1, -2, -3,..) is not
exceeded
by the ordinal number of the Distribution Date following the
Closing
Date (e.g. first, second, third,...) for such Distribution
Date.
(5) The Class 2-P will not bear
interest and will be entitled to all
Prepayment
Charges collected in respect of the Mortgage Loans.
(6) 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.
3
<PAGE>
The Master REMIC
The
following table sets forth the Certificates' Class Designation,
Initial Class Certificate Balance,
Pass-Through Rate, Minimum Denominations
and Integral Multiples in excess thereof in
respect of the Certificates, each
of which (other than the Class A-R
Certificates) is hereby designated a
regular interest in the Master REMIC, in
which such Classes shall be issuable
(except that one Certificate of each Class
of Certificates may be issued in a
different amount):
=============================================================================
Initial Class
Integral
Class
Certificate Pass-Through
Minimum Multiples
in
Designation Balance
Rate
Denomination Excess of
Minimum
-----------------------------------------------------------------------------
Class A-1 $338,000,000 Variable(1)
$
25,000
$1,000
-----------------------------------------------------------------------------
Class A-2 $37,293,000
Variable(1) $ 25,000
$1,000
-----------------------------------------------------------------------------
Class A-X-1
Notional(2)
Variable(3)
$
25,000(6) $1,000(6)
-----------------------------------------------------------------------------
Class A-X-2
Notional(4)
Variable(5)
$
25,000(6) $1,000(6)
-----------------------------------------------------------------------------
Class A-R
$100
Variable(7) $ 100
N/A
-----------------------------------------------------------------------------
Class B-1 $9,080,000
Variable(8) $ 25,000
$1,000
-----------------------------------------------------------------------------
Class B-2 $7,062,000
Variable(8) $ 25,000
$1,000
-----------------------------------------------------------------------------
Class B-3 $4,843,000
Variable(8) $ 25,000
$1,000
-----------------------------------------------------------------------------
Class B-4 $3,834,000
Variable(8) $ 100,000 $1,000
-----------------------------------------------------------------------------
Class B-5 $2,018,000
Variable(8) $ 100,000
$1,000
-----------------------------------------------------------------------------
Class B-6 $1,411,628 Variable(8)
$
100,000
$1,000
-----------------------------------------------------------------------------
Class P
$100
0%(9) $100
N/A
=============================================================================
(1) The Pass-Through Rate for the
Class A-1 and Class A-2 Certificates for
any Interest
Accrual Period related to any Distribution Date will be the
lesser of (i)
LIBOR plus the applicable Certificate Margin and (ii) the
Senior Net WAC
Cap for that Distribution Date. The Pass-Through Rate for
the Class A-1
and Class A-2 Certificates for the Interest Accrual Period
related to the
first Distribution Date will be 2.8075% and 2.8675%,
respectively,
per annum.
(2) The Class A-X-1 Certificates will
be Notional Amount Certificates, will
have no Class
Certificate Balance and will bear interest on their
Notional Amount,
which will be approximately $375,293,000 for the initial
Interest Accrual
Period. For federal income tax purposes, on each
Distribution
Date, the notional amount of the Class A-X-1 Certificates
will equal the
notional amount of the Class 2-A-X-1 Interests.
(3) The Pass-Through Rate for the
Class A-X-1 Certificates will be for any
Interest Accrual
Period related to any Distribution Date (x) on or before
the Distribution
Date in February 2008, 0.80% per annum and (y) any other
Distribution
Date, 0% per annum.
(4) The Class A-X-2 Certificates will
be Notional Amount Certificates, will
have no Class
Certificate Balance and will bear interest on their
Notional Amount,
which will be $403,541,728 for the initial Interest
Accrual Period.
The Class A-X-2 Certificates will also consist of a
principal-only
component with a Component Principal Balance initially
equal to
zero.
(5) The Pass-Through Rate for the
Class A-X-2 Certificates for any Interest
Accrual Period
for any Distribution Date will be the excess, if any, of
(i) the Weighted
Average Adjusted Net Mortgage Rate of the Mortgage Loans
over (ii) the
product of (a) the weighted average Pass-Through Rate on
4
<PAGE>
the
interest-bearing Classes of Certificates (other than the Class
A-X-1
and Class A-X-2
Certificates) (with the Pass-Through Rate of the Class
A-1 and Class
A-2 Certificates for the initial Interest Accrual Period
multiplied by a
fraction, the numerator of which is the actual number of
days elapsed in
the related Interest Accrual Period and the denominator
of which is 30)
and (b) a fraction, the numerator of which is the
aggregate Class
Certificate Balance of the Certificates (other than the
Class P and
Class A-X-2 Certificates) immediately prior to such
Distribution
Date and the denominator of which is the aggregate Stated
Principal
Balance of the Mortgage Loans as of the Due Date in the prior
month (after
giving effect to Principal Prepayments in the Prepayment
Period related
to that prior Due Date). For federal income tax purposes,
the excess of
the Senior WAC Cap over the product of two and the weighted
average of the
pass-through rates in respect of the REMIC 2 Interests
(excluding the
Class 2-A-X-1, 2-P, 2-$100 and R-2 Interests) capping the
2-Accrual
Interest at zero and the other such classes as the pass-through
rate in respect
of their Corresponding Certificate Classes.
(6) Minimum denomination is based on
the Notional Amount of such Class.
(7) The Pass-Through Rate for this
Class of Certificates for any Interest
Accrual Period
for any Distribution Date will be the Weighted Average
Adjusted Net
Mortgage Rate of the Mortgage Loans for that Distribution
Date. The Class
A-R Certificates shall represent the sole class of
residual
interest in each REMIC created hereunder.
(8) The Pass-Through Rate for each
Class of Subordinated Certificates for any
Interest Accrual
Period related to any Distribution Date will be the
lesser of (i)
LIBOR plus the applicable Certificate Margin and (ii) the
Subordinate Net
WAC Cap for that Distribution Date.
(9) The Class P Certificate will not
be entitled to any interest, but will be
entitled to 100%
of any Prepayment Charges paid on the Mortgage Loans.
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. It is not intended that
the Class A-R Certificates be entitled to
any cash flow pursuant to this
Agreement except as provided in Section
4.02(a)(1)(i) and (iii)(B) hereunder.
For any
purpose for which the Pass-Through Rates are calculated, the
interest rate on the Mortgage Loans shall
be appropriately adjusted to account
for the difference between the monthly day
count convention of the Mortgage
Loans and the monthly day count convention
of the regular interests issued by
each of the REMICs. For purposes of
calculating the Pass-Through Rates for
each of the interests issued by each REMIC
(other than the Master REMIC)
created hereunder such rates shall be
adjusted to equal a monthly day count
convention based on a 30 day month for each
Due Period and a 360-day year so
that the Mortgage Loans and all regular
interests will be using the same
monthly day count convention.
Set forth below are designations of Classes
of Certificates to the categories
used herein:
Accretion Directed Certificates........
None.
Accrual Certificates...................
None.
Book-Entry Certificates................
All Classes of
Certificates other
than the Physical
Certificates.
5
<PAGE>
COFI Certificates......................
None.
Components.............................
Class A-X-2 IO
and Class A-X-2 PO
Components
Component Certificates.................
Class A-X-2
Certificates.
Delay Certificates.....................
The Class A-R,
Class A-X-1 and Class
A-X-2 Certificates.
ERISA-Restricted Certificates,.........
The Residual
Certificates and the
Private Certificates; and
Certificates of any Class that
ceases to satisfy the rating
requirements of the Underwriter's
Exemption.
LIBOR Certificates.....................
Class A-1, Class
A-2, Class B-1,
Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
Non-Delay Certificates.................
Class A-1 and
Class A-2 Certificates
and the Subordinated Certificates.
Notional Amount Certificates...........
Class A-X-1 and
Class A-X-2
Certificates.
Notional Amount Components.............
Class A-X-2 IO
Component.
Offered Certificates...................
All Classes of
Certificates other
than the Private Certificates.
Physical Certificates..................
Class A-R
Certificates and the
Private Certificates.
Planned Principal Classes..............
None.
Principal Only Certificates............
None.
Principal Only Components..............
Class A-X-2 PO
Component.
Private Certificates...................
Class P, Class
B-4, Class B-5 and
Class B-6
Certificates.
Rating Agencies........................
Moody's and
S&P.
Regular Certificates...................
All Classes of
Certificates other
than the Class A-R Certificates.
Residual Certificate...................
Class A-R
Certificates.
Retained Certificates..................
Class P
Certificates.
6
<PAGE>
Senior Certificates....................
Class A-1, Class
A-2, Class A-X-1,
Class A-X-2 and Class A-R
Certificates.
Subordinated Certificates..............
Class B-1, Class
B-2, Class B-3,
Class B-4, Class B-5 and Class B-6
Certificates.
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.
7
<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: With respect to any Accrual Certificates and any
Distribution Date prior to the Accrual
Termination Date, the amount allocable
to interest on such Class of Accrual
Certificates with respect to such
Distribution Date pursuant to Section
4.02(a)(i).
Accrual
Certificates: As
specified in the Preliminary Statement.
Accrual
Termination Date: Not
applicable.
Adjusted Cap Rate:
The Class A-X-2
Adjusted Cap Rate, Senior Adjusted
Cap Rate and Subordinated Adjusted Cap
Rate, as applicable.
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 less the Expense Fee Rate for
that Mortgage Loan.
Adjustment
Date: A date specified in each Mortgage Note as a date on
which the Mortgage Rate on the related
Mortgage Loan is subject to adjustment.
Advance:
The payment required to be made by the Master 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 Mortgage Loan as to which the
Mortgaged Property has been acquired by the
Trust Fund (through foreclosure or
deed-in-lieu of foreclosure), net of any
net income from each REO Property, less the
aggregate amount of any such
delinquent payments that the Master
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
8
<PAGE>
the foregoing. Affiliates also include any
entities consolidated with the
requirements of generally accepted
accounting principles.
Aggregate
Subordinated Percentage: With respect to any Distribution
Date, the fraction, expressed as a
percentage, the numerator of which is equal
to the aggregate Class Certificate Balance
of the Subordinated Certificates
immediately prior to such Distribution Date
and the denominator of which is
the aggregate Stated Principal Balance of
all 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).
Agreement:
This Pooling and
Servicing Agreement and all amendments and
supplements.
Amount
Held for Future Distribution: As to any Distribution Date, the
aggregate amount held in the Certificate
Account at the close of business on
the related Determination Date on account
of (i) Principal Prepayments
received after the last day of the related
Prepayment Period and Liquidation
Proceeds and Subsequent Recoveries received
in the month of such Distribution
Date and (ii) all Scheduled Payments due
after the related Due Date.
Applicable
Credit Support Percentage: As defined in Section 4.02(e).
Appraised
Value: With respect to any Mortgage Loan, the Appraised Value
of the related Mortgaged Property shall be:
(i) with respect to a Mortgage
Loan other than a Refinance Loan, the
lesser of (a) the value of the Mortgaged
Property based upon the appraisal made at
the time of the origination of such
Mortgage Loan and (b) the sales price of
the Mortgaged Property at the time of
the origination of such Mortgage Loan; (ii)
with respect to a Refinance Loan,
the value of the Mortgaged Property based
upon the appraisal made at the time
of the origination of such Refinance
Loan.
Available
Funds: As to any Distribution Date and the Mortgage Loans, the
sum of (a) the aggregate amount held in the
Certificate Account at the close
of business on the related Determination
Date, including any Subsequent
Recoveries, net of the Amount Held for
Future Distribution, net of Prepayment
Charges and net of amounts permitted to be
withdrawn from the Certificate
Account pursuant to clauses (i) - (viii),
inclusive, of Section 3.09(a),
Prepayment Charges and amounts permitted to
be withdrawn from the Distribution
Account pursuant to clauses (i) - (ii),
inclusive, of Section 3.09(b), (b) the
amount of the related Advance, (c) in
connection with Defective Mortgage
Loans, the aggregate of the Purchase Prices
and Substitution Adjustment
Amounts deposited on the related
Distribution Account Deposit Date, and (d)
any amount deposited on the related
Distribution Account Deposit Date pursuant
to Section 3.10. The Holders of the Class P
Certificates will be entitled to
all Prepayment Charges received on the
Mortgage Loans and such amounts will
not be available for distribution to the
Holders of any other Class of
Certificates.
Bankruptcy
Code: The United
States Bankruptcy Reform Act of 1978, as
amended.
Bankruptcy
Coverage Termination Date: Not applicable.
Bankruptcy
Loss: Not
applicable.
Bankruptcy
Loss Coverage Amount:
Not applicable.
Blanket
Mortgage: The mortgage
or mortgages encumbering a Cooperative
Property.
Book-Entry
Certificates: As
specified in the Preliminary Statement.
9
<PAGE>
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 rate of the
outstanding Class A-1, Class A-2, Class
B-1 and Class B-2 Interests, treating each
of the Class A-1 and Class A-2
Interests as capped at zero or reduced by a
fixed percentage of 100% of the
interest accruing on such Class.
Cap
Counterparty: Bear
Stearns Financial Products Inc.
Carryover
Shortfall Amount: For
the LIBOR Certificates and any
Distribution Date, the sum of:
(i) the excess, if any, of the amount
of interest to which such Class
would have been entitled to if the Pass-Through Rate for such
Class
were calculated without regard to the related Net WAC Cap, over
the
actual amount of interest to which such Class is entitled for
such
Distribution Date (in each case prior to any reduction for Net
Deferred Interest);
(ii) any excess
described in clause (i) above remaining unpaid from prior
Distribution Dates; and
(iii) interest
for the applicable Interest Accrual Period on the amount
described in clause (ii) above based on the Pass-Through Rate
for
the applicable Class of Certificates, determined without regard
to
the related Net WAC Cap.
Carryover
Shortfall Reserve Fund: A fund created as part of the Trust
Fund pursuant to Section 4.07 of this
Agreement but which is not an asset of
any of the REMICs.
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 Master Servicer
pursuant to Section 3.06(d) with a
depository institution in the name of the
Master Servicer for the benefit of
the Trustee on behalf of Certificateholders
and designated "IndyMac Bank,
F.S.B., in trust for the registered holders
of IndyMac INDX Mortgage Loan
Trust 2004-AR12, Mortgage Pass-Through
Certificates, Series 2004-AR12."
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
increases 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, (C) plus
the amount of Net Deferred Interest
allocated to such Class of Certificates
pursuant to Section 4.04 prior to the date
of determination and (D) in the
case of any Class of Accrual Certificates,
plus the Accrual Amount added to
the Class Certificate Balance of such Class
prior to such date. With respect
to the Class A-X-2 Certificates at any
date, the Component Principal Balance
of the Class A-X-2 PO Component.
Certificate Margin:
For each Class of LIBOR Certificates, as follows:
10
<PAGE>
(1)
(2)
--------
---------
Class
A-1.................. 0.390%
0.780%
Class
A-2.................. 0.450%
0.900%
Class
B-1.................. 0.650%
0.975%
Class
B-2.................. 1.100%
1.650%
Class
B-3.................. 2.100%
3.150%
Class B-4,
Class B-5 and
Class
B-6.................. 2.250%
3.375%
---------------
(1) For
the Interest Accrual Period for each Distribution Date
occurring
on or prior to the first possible Optional Termination Date.
(2) For
each other Interest Accrual Period.
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
Master Servicer, as applicable.
Certificate Register:
The register maintained pursuant to Section 5.02.
Certificateholder or Holder: The person in whose name a Certificate
is
registered in the Certificate Register,
except that, solely for the purpose of
giving any consent pursuant to this
Agreement, any Certificate registered in
the name of the Depositor or any affiliate
of the Depositor 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.
Class: All
Certificates bearing the same class designation as set forth
in the Preliminary Statement.
Class
A-X-2 Adjusted Cap Rate: For the Class A-X-2 IO Component for
any
Distribution Date, the excess, if any, of
(i) the Weighted Average Adjusted
Net Mortgage Rate of the Mortgage Loans
minus (1) the product of (a) the Net
Deferred Interest for the Mortgage Loans
for such Distribution Date, and (b)
12, divided by (2) the aggregate Stated
Principal Balance of the Mortgage
Loans as of the Due Date in the prior month
(after giving effect to Principal
Prepayments in the Prepayment Period
related to such prior Due Date) over (ii)
the product of (1) the weighted average
rate at which interest would have
accrued on the interest-bearing Classes of
Certificates (other than the Class
A-X-2 Certificates) if the Pass-Through
Rates for such Classes were limited by
the applicable Adjusted Cap Rate rather
than the applicable Net WAC Cap,
adjusted for the related Interest Accrual
Period, and (2) a fraction, the
numerator of which is the aggregate Class
Certificate Balance of the
Certificates (other than the Class P and
Class A-X-2 Certificates) immediately
prior to such Distribution Date and the
denominator of which is the aggregate
Stated Principal Balance of the Mortgage
Loans as of the Due Date in the prior
month (after giving effect to Principal
Prepayments in the Prepayment Period
related to that prior Due Date).
Class
A-X-2 IO Component: The interest-only component of the Class
A-X-2
Certificates.
11
<PAGE>
Class
A-X-2 PO Component: The principal-only component of the Class
A-X-2 Certificates.
Class
Certificate Balance: For any Class (other than the Class A-X-1
Certificates) 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) interest accrued
during the related Interest Accrual Period
at the Pass-Through Rate for such
Class, on the related Class Certificate
Balance or Notional Amount, as
applicable, immediately prior to such
Distribution Date, subject to reduction
pursuant to Section 4.02(d), and (ii) any
Class Unpaid Interest Amounts for
such Class, reduced by any Net Deferred
Interest on the Mortgage Loans
allocated to such Class of Certificates, as
described in Section 4.04.
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 of the Class Certificate
Balances of all Classes of Certificates
immediately prior to such Distribution
Date.
Class
Unpaid Interest Amounts: As to any Distribution Date and Class
of
interest-bearing Certificates, the amount
by which the aggregate Class
Interest Shortfalls for such Class on prior
Distribution Dates exceeds the
amount distributed on such Class on prior
Distribution Dates pursuant to
clause (ii) of the definition of Class
Optimal Interest Distribution Amount.
Closing
Date: November 5,
2004.
CMT Index:
Not applicable.
Code: The
Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COFI:
Not applicable.
COFI
Certificates: Not
applicable.
Collection
Account: As defined in Section 3.06(c).
Compensating Interest: For any Distribution Date, 0.125% multiplied
by
one-twelfth multiplied by the aggregate
Stated Principal Balance of the
Mortgage Loans as of the first day of the
prior month.
Component:
As specified in the
Preliminary Statement.
Component
Principal Balance: As of any date of determination and with
respect to the Class A-X-2 PO Component, an
amount (initially, zero) equal to
(i) the aggregate Net Deferred Interest
allocated to the Class A-X-2 IO
Component prior to the date of
determination pursuant to Section 4.04 minus
(ii) the sum of (x) all amounts actually
distributed in respect of principal
of such Component on all prior Distribution
Dates and (y) all Realized Losses
allocated to such Component prior to such
date of
12
<PAGE>
determination, plus, any increases in the
Component Principal Balance of such
Certificate pursuant to Section 4.02 due to
the receipt of Subsequent
Recoveries.
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-IN04AC
(IndyMac MBS, Inc., IndyMac INDX Mortgage
Loan Trust 2004-AR12, Mortgage
Pass-Through Certificates, Series
2004-AR12), and which is the address to
which notices to and correspondence with
the Trustee should be directed.
Cut-off
Date: November 1,
2004.
Cut-off
Date Pool Principal Balance: $403,541,728.
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.
Deferred
Interest: With respect to each Mortgage Loan and each related
Due Date, the excess, if any, of the amount
of interest accrued on such
Mortgage Loan from the preceding Due Date
to such Due Date over the Scheduled
Payment due for such Due Date.
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.
13
<PAGE>
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 Master
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.
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
14
<PAGE>
designated "Deutsche Bank National Trust
Company in trust for registered
holders of IndyMac INDX Mortgage Loan Trust
2004-AR12, Mortgage Pass-Through
Certificates, Series 2004-AR12." Funds in
the Distribution Account shall be
held in trust for the Certificateholders
for the uses and purposes set forth
in this Agreement.
Distribution Account Deposit Date: As to any Distribution Date,
12:30
P.M. Pacific time on the Business Day
preceding the Distribution Date.
Distribution Date: The 25th day of each calendar month after the
initial
issuance of the Certificates, or if that
day is not a Business Day, the next
Business Day, commencing in December
2004.
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.
Eligible
Account: Any of
(i) an account 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 the holding company,
but
only if Moody's is not a Rating Agency) have the highest
short-term ratings of each Rating Agency at the time any
amounts
are held on deposit therein, or
(ii) [reserved], or
(iii) a trust account or accounts maintained with the trust
department of a federal or state chartered depository
institution
or trust company, acting in its fiduciary capacity, or
(iv) any other account acceptable to each Rating Agency.
Eligible Accounts may bear interest, and
may include, if otherwise qualified
under this definition, accounts maintained
with the Trustee.
ERISA:
The Employee
Retirement Income Security Act of 1974, as amended.
ERISA-Qualifying Underwriting: A best efforts or firm
commitment
underwriting or private placement that
meets the requirements of the
Underwriter's Exemption.
ERISA-Restricted Certificate: As specified in the Preliminary
Statement.
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: Not
applicable.
Excess
Proceeds: For any
Liquidated Mortgage Loan, the excess of
15
<PAGE>
(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 Master 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.
Expense
Fee Rate: As to each Mortgage Loan, the sum of the related
Servicing Fee Rate and 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 2004-AR12, or any
other address Fitch furnishes to the
Depositor and the Master 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.
Fraud
Loan: Not
applicable.
Fraud
Losses: Not
applicable.
Fraud Loss
Coverage Amount: Not
applicable.
Fraud Loss
Coverage Termination Date: Not applicable.
Gross
Margin: With respect to each Mortgage Loan, the fixed
percentage
set forth in the related Mortgage Note that
is added to the MTA Index on each
Adjustment Date in accordance with the
terms of the Mortgage Note used to
determine the Mortgage Rate for such
Mortgage Loan.
Index:
LIBOR.
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: Not applicable.
Initial
LIBOR Rate: 2.016% per annum.
16
<PAGE>
Insurance
Policy: For any Mortgage Loan included in the Trust Fund, any
insurance policy, including all riders and
endorsements thereto in effect,
including any replacement policy or
policies for any Insurance Policies.
Insurance
Proceeds: Proceeds paid by an insurer pursuant to any
Insurance Policy, in each case other than
any amount included in such
Insurance Proceeds in respect of Insured
Expenses.
Insured
Expenses: Expenses covered by an Insurance Policy or any other
insurance policy with respect to the
Mortgage Loans.
Interest
Accrual Period: With respect to each Class of Delay
Certificates and any Distribution Date, the
calendar month prior to the month
of such Distribution Date. With respect to
each Class of Subordinated
Certificates and any Distribution Date, the
period commencing on the 25th day
of the month preceding the month in which
such Distribution Date occurs (or,
in the case of the first Distribution Date,
the Closing Date) and ending on
the 24th day of the month in which such
Distribution Date occurs. The Delay
Certificates and the Subordinated
Certificates will accrue interest on the
basis of a 360-day year consisting of
twelve 30-day months. With respect to
the Class A-1 and Class A-2 Certificates
and any Distribution Date, the period
commencing on the immediately preceding
Distribution Date (or, in the case of
the first Distribution Date, the Closing
Date) and ending on the day
immediately preceding that Distribution
Date. The Class A-1 and Class A-2
Certificates will accrue interest on the
basis of a 360-day year and the
actual number of days elapsed during the
related Interest Accrual Period.
Interest
Determination Date: With respect to (a) any Interest Accrual
Period for any Class of LIBOR Certificates
and (b) any Interest Accrual Period
for the COFI Certificates for which the
applicable Index is LIBOR, the second
Business Day prior to the first day of such
Interest Accrual Period.
Interest
Rate: With respect to each REMIC 1 Interest or REMIC 2
Interest, the applicable rate set forth or
calculated in the manner described
in the Preliminary Statement.
Interest
Settlement Rate: As
defined in Section 4.08.
Last
Scheduled Distribution Date: The Distribution Date in the
month
immediately following the month of the
latest scheduled maturity date for any
of the Mortgage Loans.
Latest
Possible Maturity Date: The Distribution Date following the
third
anniversary of the scheduled maturity date
of the Mortgage Loan having the
latest scheduled maturity date as of the
Cut-off Date.
Lender PMI
Loans: Mortgage Loans with respect to which the lender rather
than the borrower acquired the primary
mortgage guaranty insurance and charged
the related borrower an interest
premium.
LIBOR: The
London interbank offered rate for one month United States
dollar deposits calculated in the manner
described in Section 4.08.
LIBOR
Determination Date: For any Interest Accrual Period, the second
London Business Day prior to the
commencement of such Interest Accrual Period.
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 Master
Servicer has certified (in accordance with
this Agreement) that it has
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<PAGE>
received all amounts it expects to receive
in connection with the liquidation
of the Mortgage Loan, including the final
disposition of an REO Property.
Liquidation Proceeds: Amounts, including Insurance Proceeds
regardless
of when received, received in connection
with the partial or complete
liquidation of defaulted Mortgage Loans,
whether through trustee's sale,
foreclosure sale, or otherwise or amounts
received in connection with any
condemnation or partial release of a
Mortgaged Property, and any other
proceeds received in connection with an REO
Property, less the sum of related
unreimbursed Servicing Fees, Servicing
Advances, and Advances.
Loan-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.
Master
Servicer: IndyMac Bank, F.S.B., a federal savings bank, and its
successors and assigns, in its capacity as
master servicer under this
Agreement.
Master
Servicer Advance Date:
As to any Distribution Date, 12:30 P.M.
Pacific time on the Business Day preceding
the Distribution Date.
Maximum
Mortgage Rate: For each Mortgage Loan, the percentage set forth
in the related Mortgage Note as the
lifetime maximum Mortgage Rate to which
such Mortgage Rate may be adjusted.
MERS:
Mortgage Electronic
Registration Systems, Inc., a corporation
organized and existing under the laws of
the State of Delaware, or any
successor thereto.
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.
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<PAGE>
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
Master Servicer.
Mortgage:
The mortgage, deed of trust, or other instrument creating a
first lien on an estate in fee simple or
leasehold interest in real property
securing a Mortgage Note.
Mortgage
File: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any
additional documents delivered to the
Trustee to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Loans: Such of the mortgage loans transferred and assigned to
the Trustee pursuant 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 Gross Margin in effect as of the Cut-off Date;
(ix) the Maximum Mortgage Rate in effect as of the Cut-off
Date;
(x) the first Payment Adjustment Date after the Cut-off Date;
(xi) a code indicating when the index for such Mortgage Loan is
determined;
(xii) the Loan-to-Value Ratio at origination;
(xiii) a code indicating whether the residential dwelling at
the
time of
origination was represented to be owner-occupied;
(xiv) a code indicating whether the residential dwelling is
either
(a) a detached
single family dwelling, (b) a dwelling in a PUD, (c) a
condominium
unit, (d) a two- to four-unit residential property, or (e) a
Cooperative
Unit;
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<PAGE>
(xv) the Mortgage Rate in effect as of the Cut-off Date;
(xvi) the purpose for the Mortgage Loan;
(xvii) the type of documentation program pursuant to which the
Mortgage Loan
was originated;
(xviii) a code indicating whether the Mortgage Loan is a
borrower-paid
mortgage insurance loan;
(xix) the Servicing Fee Rate;
(xx) a code indicating whether the Mortgage Loan is a Lender
PMI
Loan;
(xxi) the coverage amount of any mortgage insurance;
(xxii) with respect to the Lender PMI Loans, the interest
premium
charged by the
lender;
(xxiii) a code indicating whether the Mortgage Loan is a Delay
Delivery
Mortgage Loan;
(xxiv) a code indicating whether the Mortgage Loan is a MERS
Mortgage Loan;
and
(xxv) the Prepayment Cap in effect for the Mortgage Loan.
The
Schedule shall also set forth the total of the amounts
described
under (v) above for all of the Mortgage
Loans.
Mortgage
Note: The original executed note or other evidence of the
indebtedness of a Mortgagor under a
Mortgage Loan.
Mortgage
Rate: The annual rate of interest borne by a Mortgage Note from
time to time.
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.
MTA Index:
The twelve-month average of the monthly yields on U.S.
Treasury Securities adjusted to a constant
maturity of one year as published
by the Federal Reserve Board in Statistical
Release H. 15(519).
National
Cost of Funds Index:
The National Monthly Median Cost of
Funds Ratio to SAIF-Insured Institutions
published by the OTS.
Net
Deferred Interest: With respect to each Distribution Date, the
excess, if any, of the amount of Deferred
Interest that accrued on the
Mortgage Loans from the preceding Due Date
to the Due Date in the month of
such Distribution Date, over any Principal
Prepayment Amount for those
Mortgage Loans during the related
Prepayment Period.
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<PAGE>
Net
Interest Shortfall: With respect to any Distribution Date, an
amount
equal to any Net Prepayment Interest
Shortfalls for that Distribution Date and
the amount of interest that would otherwise
have been received with respect to
any Mortgage Loan that was the subject of a
Relief Act Reduction.
Net
Prepayment Interest Shortfall: As to any Distribution Date, the
amount, if any, by which the aggregate of
Prepayment Interest Shortfalls
exceeds an amount equal to the Compensating
Interest for such Distribution
Date.
Net
Prepayments: As to any Distribution Date, the amount equal to
the
excess, if any, of the (i) Principal
Prepayment Amount over (ii) the aggregate
amount of Deferred Interest accrued on the
Mortgage Loans from the preceding
Due Date to the Due Date related to that
Distribution Date.
Net WAC
Cap: Either the Senior
Net WAC Cap or Subordinate Net WAC Cap
Non-Delay
Certificates: As
specified in the Preliminary Statement.
Nonrecoverable Advance: Any portion of an Advance previously made
or
proposed to be made by the Master Servicer,
that, in the good faith judgment
of the Master Servicer, will not be
ultimately recoverable by the Master
Servicer from the related Mortgagor,
related Liquidation Proceeds or
otherwise.
Notice of
Final Distribution: The notice to be provided pursuant to
Section 9.02 to the effect that final
distribution on any of the Certificates
shall be made only upon presentation and
surrender thereof.
Notional
Amount: With respect to the Class A-X-1 Certificates and
immediately prior to any Distribution Date,
the lesser of (i) the amount
specified for that Distribution Date on the
Class A-X-1 Certificates Notional
Balance Schedule set forth on Schedule 1 to
the Prospectus Supplement and (ii)
the aggregate Class Certificate Balance of
the Class A-1 and Class A-2
Certificates immediately prior to that
Distribution Date. The Notional Amount
of the Class A-X-1 Certificates for any
Distribution Date after the
Distribution Date in February 2008 will be
$0. With respect to the Class A-X-2
Certificates and immediately prior to any
Distribution Date, the aggregate of
the Stated Principal Balances of the
Mortgage Loans as of the Due Date in the
prior month after giving effect to
Principal Prepayments in the Prepayment
Period related to that prior Due Date.
Notional
Amount Certificates:
As specified in the Preliminary
Statement.
Notional
Amount Components: As
specified in the Preliminary Statement.
Offered
Certificates: As
specified in the Preliminary Statement.
Officer's
Certificate: A certificate (i) signed by the Chairman of the
Board, the Vice Chairman of the Board, the
President, a Managing Director, a
Vice President (however denominated), an
Assistant Vice President, the
Treasurer, the Secretary, or one of the
Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master
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 Master Servicer, (ii)
does not have any direct financial
interest in the Depositor or the Master
Servicer or in any affiliate of
either, and (iii) is not connected with the
Depositor or the Master Servicer
as an officer, employee, promoter,
21
<PAGE>
underwriter, trustee, partner, director, or
person performing similar
functions. Otherwise, a written opinion of
counsel who may be counsel for the
Depositor or the Master Servicer, including
in-house counsel, reasonably
acceptable to the Trustee.
Optional
Termination Date: As
defined in Section 9.01.
Original
Applicable Credit Support Percentage: With respect to each of
the following Classes of Subordinated
Certificates, the corresponding
percentage described below, as of the
Closing Date:
Class B-1...................... 7.00%
Class B-2...................... 4.75%
Class B-3...................... 3.00%
Class B-4...................... 1.80%
Class B-5...................... 0.85%
Class B-6...................... 0.35%
Original
Mortgage Loan: The
Mortgage Loan refinanced in connection
with the origination of a Refinance
Loan.
Original
Subordinated Principal Balance: The aggregate of the Class
Certificate Balances of the Subordinated
Certificates as of the Closing Date.
OTS:
The Office of Thrift
Supervision.
Outside
Reference Date: Not
applicable.
Outstanding: For the Certificates as of any date of determination,
all
Certificates theretofore executed and
authenticated under this Agreement
except:
(i) Certificates
theretofore canceled by the Trustee or
delivered to the Trustee for cancellation; and
(ii) Certificates in
exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Outstanding Mortgage Loan: As of any Due Date, a Mortgage Loan with
a
Stated Principal Balance greater than zero
that was not the subject of a
Principal Prepayment in Full before the Due
Date or during the related
Prepayment Period and that did not become a
Liquidated Mortgage Loan before
the Due Date.
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.
Payment
Adjustment Date: A date specified in each Mortgage Note as a
date on which the Scheduled Payment for the
related Mortgage Loan is subject
to adjustment.
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<PAGE>
Payment
Cap: For each Mortgage Loan, the percentage limit set forth in
the related Mortgage Note concerning the
maximum permitted increase in a
monthly payment.
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.
Permitted
Investments: At any
time, any of the following:
(i) obligations of the United States or any agency thereof
backed
by the full faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by any
state
of the United States or the District of Columbia receiving the
highest long-term debt rating of each Rating Agency, or any
lower
rating that will not result in the downgrading, qualification
or
withdrawal of the ratings then assigned to the Certificates by
the
Rating Agencies, as evidenced by a signed writing delivered by
each Rating Agency;
(iii) commercial or finance company paper that is then
receiving
the highest commercial or finance company paper rating of each
Rating Agency, or any lower rating that will not result in the
downgrading, qualification or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies , as
evidenced
by a signed writing delivered by each Rating Agency;
(iv) certificates of deposit, demand or time deposits, or
bankers'
acceptances issued by any depository institution or trust
company
incorporated under the laws of the United States or of any
state
thereof and subject to supervision and examination by federal
or
state banking authorities, provided that the commercial paper
or
long-term unsecured debt obligations of the depository
institution
or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper
or
long-term unsecured debt obligations of the holding company,
but
only if Moody's is not a Rating Agency) are then rated one of
the
two highest long-term and the highest short-term ratings of
each
Rating Agency for the securities, or any lower rating that will
not result in the downgrading, qualification or withdrawal of
the
ratings then assigned to the Certificates by the Rating
Agencies,
as evidenced by a signed writing delivered by each Rating
Agency;
(v) demand or time deposits or certificates of deposit issued
by
any bank or trust company or savings institution to the extent
that the deposits are fully insured by the FDIC;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company, or other corporation acceptable to the
Rating
Agencies at the time of the issuance of the agreements, as
evidenced by a signed writing delivered by each Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered
into with a depository institution or trust company (acting as
principal) described in clause (iv) above; provided that such
repurchase obligation would be accounted for as a financing
arrangement under generally accepted accounting principles;
23
<PAGE>
(viii) securities (other than stripped bonds, stripped coupons,
or
instruments sold at a purchase price in excess of 115% of their
face amount) bearing interest or sold at a discount issued by
any
corporation incorporated under the laws of the United States or
any state thereof that, at the time of the investment, have one
of
the two highest ratings of each Rating Agency (except if the
Rating Agency is Moody's the rating shall be the highest
commercial paper rating of Moody's for the securities), or any
lower rating that will not result in the downgrading,
qualification or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency and that have a
maturity
date occurring no more than 365 days from their date of
issuance;
(ix) units of a taxable money-market portfolio having the
highest
rating assigned by each Rating Agency (except (i) if Fitch is a
Rating Agency and has not rated the portfolio, the highest
rating
assigned by Moody's and (ii) if S&P is a Rating Agency, "AAAm"
or
"AAAM-G" by S&P) and restricted to obligations issued or
guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the
United
States of America and repurchase agreements collateralized by
such
obligations; and
(x) any other investments bearing interest or sold at a
discount
acceptable to each Rating Agency that will not result in the
downgrading, qualification or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as
evidenced
by a signed writing delivered by each Rating Agency.
No
Permitted Investment may (i) evidence the right to receive
interest-only payments with respect to the
obligations underlying the
instrument, (ii) be sold or disposed of
before its maturity or (iii) be any
obligation of the Seller or any of its
Affiliates. Any Permitted Investment
shall be relatively risk free and no
options or voting rights shall be
exercised with respect to any Permitted
Investment. Any Permitted Investment
shall be sold or disposed of in accordance
with Financial Accounting Standard
140, paragraph 35c(6) in effect as of the
Closing Date.
Permitted
Transferee: Any person
other than
(i) the United States, any State or political subdivision
thereof,
or any agency or instrumentality of any of the foregoing,
(ii) a foreign government, International Organization, or any
agency or instrumentality of either of the foregoing,
(iii) an organization (except certain farmers' cooperatives
described in section 521 of the Code) that is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by
section 511 of the Code on unrelated business taxable income)
on
any excess inclusions (as defined in section 860E(c)(1) of the
Code) with respect to any Residual Certificate,
(iv) a rural electric and telephone cooperatives described in
section 1381(a)(2)(C) of the Code,
(v) an "electing large partnership" as defined in section 775
of
the Code,
(vi) a Person that is not a U.S. Person, and
24
<PAGE>
(vii) any other Person so designated by the Depositor based on
an
Opinion of Counsel that the Transfer of an Ownership Interest in
a
Residual Certificate to the Person may cause any REMIC to fail
to
qualify as a REMIC at any time that the Certificates are
outstanding.
Person:
Any individual, corporation, partnership, joint venture,
association, limited liability company,
joint-stock company, trust,
unincorporated organization, or government,
or any agency or political
subdivision thereof.
Physical
Certificates: As
specified in the Preliminary Statement.
Planned
Balance: With respect to the Planned Principal Classes in the
aggregate and any Distribution Date
appearing in the aggregate Principal
Balance Schedule, the amount appearing
opposite such Distribution Date for
such Planned Principal Classes.
Planned
Principal Classes: As
specified in the Preliminary Statement.
Pool
Stated Principal Balance: The aggregate of the Stated
Principal
Balances of the Mortgage Loans.
Prepayment
Charge: As to a Mortgage Loan, any charge payable by a
Mortgagor in connection with certain
partial prepayments and all prepayments
in full made within the related Prepayment
Charge Period, the Prepayment
Charges with respect to each applicable
Mortgage Loan so held by the Trust
Fund being identified in the Prepayment
Charge Schedule.
Prepayment
Charge Period: As to any Mortgage Loan, the period of time
during which a Prepayment Charge may be
imposed.
Prepayment
Charge Schedule: As of any date, the list of Prepayment
Charges included in the Trust Fund on that
date (including the prepayment
charge summary attached thereto). The
Prepayment Charge Schedule shall set
forth the following information with
respect to each Prepayment Charge:
o the Mortgage
Loan account number;
o a code
indicating the type of Prepayment Charge;
o the state of
origination in which the related Mortgage Property is
located;
o the first date
on which a monthly payment is or was due under the
related Mortgage Note;
o the term of
the Prepayment Charge;
o the original
principal amount of the related Mortgage Loan; and
o the Cut-off
Date Principal Balance of the related Mortgage Loan.
The
Prepayment Charge Schedule shall be amended from time to time by
the
Master Servicer in accordance with this
Agreement.
Prepayment
Interest Excess: As to any Principal Prepayment received by
the Master Servicer on a Mortgage Loan from
the first day through the
fifteenth day of any calendar month other
than the month
25
<PAGE>
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 Master Servicer as
additional master servicing compensation.
Prepayment
Interest Shortfall: As to any Distribution Date, Mortgage
Loan and Principal Prepayment received on
or after the sixteenth day of the
month preceding the month of such
Distribution Date (or, in the case of the
first Distribution Date, on or after the
Cut-off Date) and on or before the
last day of the month preceding the month
of such Distribution Date, the
amount, if any, by which one month's
interest at the related Mortgage Rate,
net of the Servicing Fee Rate, on such
Principal Prepayment exceeds the amount
of interest paid in connection with such
Principal Prepayment.
Prepayment
Period: As to any Distribution Date and related Due Date, the
period from and including the 16th day of
the month immediately prior to the
month of such Distribution Date (or, in the
case of the first Distribution
Date, from the Cut-off Date) and to and
including the 15th day of the month of
such Distribution Date.
Prepayment
Shift Percentage: Not
applicable.
Primary
Insurance Policy: Each
policy of primary mortgage guaranty
insurance or any replacement policy
therefor with respect to any Mortgage
Loan.
Principal
Amount: As to any Distribution Date, the sum of (a) all
monthly payments of principal due on each
Mortgage Loan on the related Due
Date, (b) the principal portion of the
Purchase Price of each Mortgage Loan
that was repurchased by the Seller pursuant
to this Agreement as of such
Distribution Date, excluding any Mortgage
Loan that was repurchased due to a
modification of the Mortgage Rate, (c) the
Substitution Adjustment Amount in
connection with any Deleted Mortgage Loan
received with respect to such
Distribution Date, (d) any Insurance
Proceeds or Liquidation Proceeds
allocable to recoveries of principal of
Mortgage Loans that are not yet
Liquidated Mortgage Loans received during
the calendar month preceding the
month of such Distribution Date, (e) with
respect to each Mortgage Loan that
became a Liquidated Mortgage Loan during
the calendar month preceding the
month of such Distribution Date, the amount
of Liquidation Proceeds allocable
to principal received with respect to such
Mortgage Loan, (f) all Net
Prepayments on the Mortgage Loans received
during the related Prepayment
Period and (g) any Subsequent Recoveries
with respect to the Mortgage Loans
received during the calendar month
preceding the month of such Distribution
Date.
Principal
Balance Schedules: Not
applicable.
Principal
Only Certificates: As
specified in the Preliminary Statement.
Principal Only
Component: The Class
A-X-2 PO Component.
Principal
Prepayment: Any payment of principal by a Mortgagor on a
Mortgage Loan (including 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 Master Servicer
shall apply partial Principal Prepayments
in accordance with the related
Mortgage Note.
Principal
Prepayment Amount: As to any Distribution Date, an amount
equal to the sum of all voluntary Principal
Prepayments on the Mortgage Loans
received during the related Prepayment
Period.
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<PAGE>
Principal
Prepayment in Full:
Any Principal Prepayment made by a
Mortgagor of the entire principal balance
of a Mortgage Loan.
Principal
Reductions: As defined in the Preliminary Statement.
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 of the Class Certificate
Balances of the Subordinated Certificates,
in each case immediately prior to
such Distribution Date.
Proprietary Lease: For any Cooperative Unit, a lease or
occupancy
agreement between a Cooperative Corporation
and a holder of related Co-op
Shares.
Prospectus
Supplement: The Prospectus Supplement dated November 3, 2004,
relating to the Offered Certificates.
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 Master 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 Master Servicer or (y) if the
purchaser is the Seller and the Seller is the Master 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 Master 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 a Mortgage Loan to be repurchased 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 Master 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.
27
<PAGE>
Rating
Agency: Each of the Rating Agencies specified in the
Preliminary
Statement. If any of them or a successor is
no longer in existence, "Rating
Agency" shall be the nationally recognized
statistical rating organization, or
other comparable Person, designated by the
Depositor, 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 Master Servicer receives Subsequent Recoveries with
respect to any Mortgage Loan, the amount of
the Realized Loss with respect to
that Mortgage Loan will be reduced by such
Subsequent Recoveries.
Recognition Agreement: For any Cooperative Loan, an agreement
between
the Cooperative Corporation and the
originator of the Mortgage Loan that
establishes the rights of the originator in
the Cooperative Property.
Record
Date: With respect to any Distribution Date and any Definitive
Certificate and the Delay Certificates, the
close of business on the last
Business Day of the month preceding the
month of that Distribution Date. With
respect to any Distribution Date and the
Non-Delay Certificates as long as
they are Book-Entry Certificates, the
Business Day immediately prior to such
Distribution Date.
Reference
Bank: As defined in
Section 4.08.
Refinance
Loan: Any Mortgage
Loan the proceeds of which are used to
refinance an Original Mortgage Loan.
Regular
Certificates: As
specified in the Preliminary Statement.
Relief
Act: The
Servicemembers Civil Relief Act.
Relief Act
Reductions: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a
reduction in the amount of interest
collectible thereon for the most recently
ended calendar month as a result of
the application of the Relief Act, 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.
28
<PAGE>
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.
Request
for Release: The Request for Release submitted by the Master
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.
Required
Reserve Fund Deposit: With respect to the Class A-X-2 IO
Component and any Distribution Date, an
amount equal to the lesser of (i) the
amount calculated pursuant to clause (i) of
the definition of Class Optimal
Interest Distribution Amount for the Class
A-X-2 IO Component for such
Distribution Date (after reductions due to
such Component's share of any Net
Deferred Interest and after any reduction
due to Net Interest Shortfalls on
such Distribution Date) and (ii) the
amount, if any, required to bring the
balance on deposit in the Carryover
Shortfall Reserve Fund up to an amount
equal to the greater of (a) the aggregate
remaining Carryover Shortfall Amount
for such Distribution Date with respect to
the LIBOR Certificates (after
distributing amounts in the Yield
Maintenance Reserve Fund to the Class A-1
and Class A-2 Certificates) and (b)
$1,000.
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.
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 Master Servicer.
Scheduled
Balance: Not
applicable.
Scheduled
Classes: As specified
in the Preliminary Statement.
29
<PAGE>
Scheduled
Payment: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal
and/or interest on such Mortgage Loan
which, unless otherwise specified herein,
shall give effect to any related
Debt Service Reduction and any Deficient
Valuation that affects the amount of
the monthly payment due on such Mortgage
Loan.
Securities
Act: The Securities
Act of 1933, as amended.
Security
Agreement: For any Cooperative Loan, the agreement between the
owner of the related Co-op Shares and the
originator of the related Mortgage
Note that defines the security interest in
the Co-op Shares and the related
Proprietary Lease.
Seller:
IndyMac Bank, F.S.B.,
a federal savings bank, and its
successors and assigns, in its capacity as
seller of the Mortgage Loans to
the Depositor.
Senior
Adjusted Cap Rate: For the Class A-1 and Class A-2 Certificates
and any Distribution Date, the Weighted
Average Adjusted Net Mortgage Rate of
the Mortgage Loans for that Distribution
Date, minus (A) (1) the product of
(a) the Net Deferred Interest for the
Mortgage Loans for such Distribution
Date, and (b) 12, divided by (2) the
aggregate Stated Principal Balance of the
Mortgage Loans as of the Due Date in the
prior month (after giving effect to
Principal Prepayments in the Prepayment
Period related to such prior Due
Date), and minus (B) the product of (1) the
Pass-Through Rate of the Class
A-X-1 Certificates for the Interest Accrual
Period for that Distribution Date
and (2) a fraction, the numerator of which
is the Notional Amount of the Class
A-X-1 Certificates immediately prior to
that Distribution Date, and the
denominator of which is the aggregate Class
Certificate Balance of the Class
A-1 and Class A-2 Certificates immediately
prior to that Distribution Date,
such result multiplied by a fraction, the
numerator of which is 30 and the
denominator of which is the actual number
of days in the related Interest
Accrual Period.
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 Net
WAC Cap: For any Distribution Date, the Weighted Average
Adjusted Net Mortgage Rate of the Mortgage
Loans for that Distribution Date,
minus the product of (x) the Pass-Through
Rate of the Class A-X-1 Certificates
for the Interest Accrual Period for that
Distribution Date and (y) a fraction,
the numerator of which is the Notional
Amount of the Class A-X-1 Certificates
immediately prior to that Distribution
Date, and the denominator of which is
the aggregate Class Certificate Balance of
the Class A-1 and Class A-2
Certificates immediately prior to that
Distribution Date, such result
multiplied by a fraction, the numerator of
which is 30 and the denominator of
which is the actual number of days in the
related Interest Accrual Period.
Senior
Percentage: As to any Distribution Date, the percentage
equivalent of a fraction the numerator of
which is the aggregate of the Class
Certificate Balance and Component Principal
Balance of each Class and
Component of Senior Certificates (other
than the Class A-X-1 Certificates and
the Class A-X-2 IO Component) immediately
before the Distribution Date and the
denominator of which is the aggregate
Stated Principal Balance of the Mortgage
Loans as of the Due Date occurring in the
month prior to the month of that
Distribution Date (after giving effect to
Principal Prepayments received on
the Mortgage Loans in the Prepayment Period
related to that Due Date).
Senior
Prepayment Percentage: As to any Distribution Date during the
ten
years beginning on the first Distribution
Date, 100%. The Senior Prepayment
Percentage for any Distribution Date
occurring
30
<PAGE>
on or after the tenth anniversary of the
first Distribution Date will, except
as provided in this Agreement, be as
follows: for any Distribution Date in the
first year thereafter, the Senior
Percentage plus 70% of the Subordinated
Percentage for such Distribution Date; for
any Distribution Date in the second
year thereafter, the Senior Percentage plus
60% of the Subordinated Percentage
for such Distribution Date; for any
Distribution Date in the third year
thereafter, the Senior Percentage plus 40%
of the Subordinated Percentage for
such Distribution Date; for any
Distribution Date in the fourth year
thereafter, the Senior Percentage plus 20%
of the Subordinated Percentage for
such Distribution Date; and for any
Distribution Date thereafter, the Senior
Percentage for such Distribution Date
(unless on any Distribution Date the
Senior Percentage exceeds the initial
Senior Percentage in which case the
Senior Prepayment Percentage for such
Distribution Date will once again equal
100%). Notwithstanding the foregoing, no
decrease in the Senior Prepayment
Percentage will occur unless both Senior
Step Down Conditions are satisfied
with respect to the Mortgage Loans.
Notwithstanding the foregoing, if (x) on
or before the Distribution Date in November
2007, the Aggregate Subordinated
Percentage is at least 200% of the
Aggregate Subordinated Percentage as of the
Closing Date, the delinquency test set
forth in clause (i) of the definition
of Senior Step Down Conditions is satisfied
and cumulative Realized Losses do
not exceed 20% of the Original Subordinated
Principal Balance, the Senior
Prepayment Percentage will equal the Senior
Percentage for that Distribution
Date plus 50% of the Subordinated
Percentage for that Distribution Date and
(y) after the Distribution Date in November
2007, the Aggregate Subordinated
Percentage is at least 200% of the
Aggregate Subordinated Percentage as of the
Closing Date, the delinquency test set
forth in clause (i) of the definition
of Senior Step Down Conditions is satisfied
and cumulative Realized Losses do
not exceed 30% of the Original Subordinate
Principal Balance, the Senior
Prepayment Percentage will equal the Senior
Percentage for that Distribution
Date.
Senior
Principal Distribution Amount: As to any Distribution Date, the
sum of (i) the Senior Percentage of all
amounts described in clauses (a)
through (d) of the definition of Principal
Amount and such Distribution Date,
(ii) with respect to any Mortgage Loan that
became a Liquidated Mortgage Loan
during the calendar month preceding the
month of such Distribution Date, the
lesser of (x) the related Senior Percentage
of the Stated Principal Balance of
such Mortgage Loan and (y) the related
Senior Prepayment Percentage of the
amount of the Liquidation Proceeds
allocable to principal received on the
Mortgage Loan and (iii) the Senior
Prepayment Percentage of the amounts
described in clauses (f) and (g) of the
definition of Principal Amount for
such Distribution Date.
Senior
Step Down Conditions: As to any Distribution Date: (i) the
outstanding principal balance of all the
Mortgage Loans 60 days or more
Delinquent (averaged over the preceding six
month period) (including any
Mortgage Loans subject to foreclosure
proceedings, REO Property (regardless of
whether that Mortgage Loan is 60 days or
more Delinquent) and Mortgage Loans
the mortgagers of which are in bankruptcy),
as a percentage of the aggregate
of the Class Certificate Balances of the
Subordinated Certificates, does not
equal or exceed 50%, and (ii) cumulative
Realized Losses do not exceed: (a)
for the Distribution Date on the tenth
anniversary of the first Distribution
Date, 30% of the Original Subordinated
Principal Balance, (b) for the
Distribution Date on the eleventh
anniversary of the first Distribution Date,
35% of the Original Subordinated Principal
Balance, (c) for the Distribution
Date on the twelfth anniversary of the
first Distribution Date, 40% of the
Original Subordinated Principal Balance,
(d) for the Distribution Date on the
thirteenth anniversary of the first
Distribution Date, 45% of the Original
Subordinated Principal Balance, and (e) for
the Distribution Date on the
fourteenth anniversary of the first
Distribution Date and thereafter, 50% of
the Original Subordinated Principal
Balance.
Servicing
Account: The separate Eligible Account or Accounts created and
maintained pursuant to Section 3.06(b).
31
<PAGE>
Servicing
Advances: All customary, reasonable, and necessary "out of
pocket" costs and expenses incurred in the
performance by the Master Servicer
of its servicing obligations, including the
cost of
(a) the preservation, restoration, and protection of a
Mortgaged
Property,
(b) expenses reimbursable to the Master Servicer pursuant to
Section
3.12 and any enforcement or judicial proceedings, including
foreclosures,
(c) the maintenance and liquidation of any REO Property, and
(d) compliance with the obligations under Section 3.10; and
(e) reasonable compensation to the Master Servicer or its
affiliates
for acting as broker in connection with the sale of
foreclosed
Mortgaged Properties and for performing certain default
management
and other similar services (including appraisal services) in
connection
with the servicing of defaulted Mortgage Loans. For purposes
of this
clause (e), only costs and expenses incurred in connection with
the
performance of activities generally considered to be outside
the
scope of
customary servicing or master servicing duties shall be treated
as
Servicing Advances.
Servicing
Fee: As to each Mortgage Loan and any Distribution Date, one
month's interest at the applicable
Servicing Fee Rate on the Stated Principal
Balance of the Mortgage Loan, or, whenever
a payment of interest accompanies a
Principal Prepayment in Full made by the
Mortgagor, interest at the Servicing
Fee Rate on the Stated Principal Balance of
the Mortgage Loan for the period
covered by the payment of interest, subject
to reduction as provided in
Section 3.15.
Servicing
Fee Rate: For each
Mortgage Loan, 0.375% per annum.
Servicing
Officer: Any officer of the Master 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 Master 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
Master Servicer with respect to mortgage
loans comparable to the Mortgage
Loans serviced by the Master Servicer for
itself or others.
Shift
Percentage: Not applicable.
Special Hazard Coverage
Termination Date: Not
applicable.
Special
Hazard Loss: Not
applicable.
Special
Hazard Loss Coverage Amount: Not applicable.
Special
Hazard Mortgage Loan:
Not applicable.
Startup
Day: The Closing
Date.
Stated
Principal Balance: As to any Mortgage Loan and Due Date, the
unpaid principal balance of such Mortgage
Loan as of such Due Date, as
specified in the amortization schedule at
the time relating thereto (before
any adjustment to such amortization
schedule by reason of any moratorium or
similar
32
<PAGE>
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 any Principal Prepayments
received through the last day of the
related Prepayment Period, in each case,
with respect to such Mortgage Loan and
increased by any Deferred Interest
added to the principal balance of that
Mortgage Loan on or prior to such Due
Date.
Subordinated Adjusted Cap Rate: For each Class of Subordinated
Certificates and any Distribution Date, the
Weighted Average Adjusted Net
Mortgage Rates of the Mortgage Loans minus
(A) the product of (1) the Net
Deferred Interest for the Mortgage Loans
for such Distribution Date, and (2)
12, divided by (B) the aggregate Stated
Principal Balance of the Mortgage
Loans as of the Due Date in the prior month
(after giving effect to Principal
Prepayments in the Prepayment Period
related to such prior Due Date).
Subordinated Certificates: As specified in the Preliminary
Statement.
Subordinated Component Balance: As defined in the Preliminary
Statement.
Subordinated Percentage: As to any Distribution Date, 100%
minus the
related Senior Percentage for such
Distribution Date.
Subordinated Prepayment Percentage: For any Distribution Date,
100%
minus the Senior Prepayment Percentage.
Subordinated Principal Distribution Amount: As to any Distribution
Date,
the sum of the following: (i) the
Subordinated Percentage of all amounts
described in clauses (a) through (d) of the
definition of Principal Amount
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, up to the Subordinated Percentage
of the Stated Principal Balance of
such Mortgage Loan, and (iii) the
Subordinated Prepayment Percentage of the
amounts described in clauses (f) and (g) of
the definition of Principal Amount
for such Distribution Date.
Subordinate Net WAC Cap: For any Distribution Date, the Weighted
Average
Adjusted Net Mortgage Rates of the Mortgage
Loans.
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
Master Servicer (net of any related
expenses permitted to be reimbursed
pursuant to Section 3.09) specifically
related to such Liquidated Mortgage
Loan.
Subservicer: As
defined in Section 3.02(a).
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
33
<PAGE>
amount of any shortfall is deposited by the Seller in the
Certificate Account and held for distribution to the
Certificateholders on the related Distribution Date);
(ii)
have a Mortgage Rate no lower than and not more than 1% per
annum higher than the Deleted Mortgage Loan;
(iii) have
a Maximum Mortgage Rate not more than 1% per annum
higher than and not lower than the Maximum Mortgage Rate of the
deleted Mortgage Loan,
(iv)
have the same negative amortization limit, payment
adjustment intervals and recast intervals as that of the
deleted
Mortgage Loan,
(v) have the
same index and Payment Cap as the deleted Mortgage
Loan and a Gross Margin not more than 1% per annum higher than,
and
not lower than that of the deleted Mortgage Loan,
(vi)
have a Loan-to-Value Ratio no higher than that of the
Deleted Mortgage Loan;
(vii) have
a remaining term to maturity no greater than (and not
more than one year less than) that of the Deleted Mortgage
Loan;
(viii) not be a
Cooperative Loan unless the Deleted Mortgage Loan
was a Cooperative Loan; and
(ix)
comply with each representation and warranty in Section 2.03.
Substitution Adjustment Amount: As defined in Section 2.03.
Targeted
Balance: With respect to the Targeted Principal Classes and any
Distribution Date appearing in the
Principal Balance Schedules, the applicable
amount appearing opposite such Distribution
Date for such Targeted Principal
Classes.
Targeted
Principal Classes: As
specified in the Preliminary Statement.
Transfer:
Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
Trust
Fund: The corpus of
the trust created under this Agreement
consisting of
(i) the
Mortgage Loans and all interest and principal received
on them after the Cut-off Date, other than amounts due on the
Mortgage Loans by the Cut-off Date;
(ii)
the Certificate Account, the Distribution Account, the Yield
Maintenance Reserve Fund, the Carryover Shortfall Reserve Fund
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;
34
<PAGE>
(iv)
the right to collect any amounts under any mortgage insurance
policies covering any Mortgage Loan and any collections
received
under any mortgage insurance policies covering any Mortgage
Loan;
(v) all rights
to receive amounts under, and to enforce remedies
in, the Yield Maintenance Agreement, and
(vi)
all proceeds of the conversion, voluntary or involuntary, of
any of the foregoing.
Trustee:
Deutsche Bank National
Trust Company and its
successors and,
if a successor trustee is appointed under
this Agreement, the successor.
Trustee
Fee: The fee payable to the Trustee on each Distribution Date
for its services as Trustee hereunder, in
an amount equal to one-twelfth of
the Trustee Fee Rate multiplied by the
aggregate Stated Principal Balance of
the Mortgage Loans 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: 0.0075% per
annum.
The terms
"United States," "State," and "International Organization"
have the meanings in section 7701 of the
Code or successor provisions. A
corporation will not be treated as an
instrumentality of the United States or
of any State or political subdivision
thereof for these purposes if all of its
activities are subject to tax and, with the
exception of the Federal Home Loan
Mortgage Corporation, a majority of its
board of directors is not selected by
such government unit.
UCC:
The Uniform Commercial
Code for the State of New York.
Underwriter's Exemption: Prohibited Transaction Exemption
2002-41, 67
Fed. Reg. 54487 (2002) (or any successor
thereto), or any substantially
similar administrative exemption granted by
the U.S. Department of Labor
United
States Person or U.S. Person:
(i) A
citizen or resident of the United States;
(ii) a
corporation (or entity treated as a corporation for tax
purposes) created or organized in the United States or under
the
laws of the United States or of any state thereof, including,
for
this purpose, the District of Columbia;
(iii) a partnership
(or entity treated as a partnership for tax
purposes) organized in the United States or under the laws of
the
United States or of any state thereof, including, for this
purpose, the District of Columbia (unless provided otherwise by
future Treasury regulations);
(iv) an estate
whose income is includible in gross income for
United States income tax purposes regardless of its source; or
(v) a
trust, if a court within the United States is able to
exercise primary supervision over the administration of the
trust
and one or more U.S. Persons have authority to control all
substantial decisions of the trust. Notwithstanding the last
clause of the
35
<PAGE>
preceding sentence, to the extent provided in Treasury
regulations, certain trusts in existence on August 20, 1996,
and
treated as U.S. Persons before that date, may elect to continue
to
be U.S. Persons.
U.S.A. Patriot Act: The Uniting
and Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001.
Voting
Rights: The portion of the voting rights of all of the
Certificates that is allocated to any
Certificate. As of any date of
determination, (a) 1% of all Voting Rights
shall be allocated to each Class of
Notional Amount Certificates (the Voting
Rights to be allocated among the
holders of Certificates of each Class in
accordance with their respective
Percentage Interests), (b) 1% of all Voting
Rights shall be allocated to the
Holder of the Class A-R Certificates and
(c) the remaining Voting Rights shall
be allocated among Holders of the remaining
Classes of Certificates (other
than the Class A-R and Class P
Certificates) in proportion to the Certificate
Balances of the respective Certificates on
the date.
Weighted
Average Adjusted Net Mortgage Rate: For any Distribution Date,
the average of the Adjusted Net Mortgage
Rate of each Mortgage Loan, weighted
on the basis of its Stated Principal
Balance as of the Due Date in the prior
month (after giving effect to Principal
Prepayments in the Prepayment Period
related to such prior Due Date).
Withdrawal
Date: The 18th day of each month, or if such day is not a
Business Day, the next preceding Business
Day.
Yield
Maintenance Agreement: The interest rate cap agreement between
the
Trust Fund and the Cap Counterparty
relating to the Class A-1 and Class A-2
Certificates.
Yield
Maintenance Reserve Fund: The separate Eligible Account created
and maintained by the Trustee pursuant to
Section 3.06(f) in the name of the
Trustee for the benefit of the Holders of
the Class A-1 and Class A-2
Certificates, and designated "Deutsche Bank
National Trust Company in trust
for registered holders of IndyMac INDX
Mortgage Loan Trust 2004-AR12, Mortgage
Pass-Through Certificates, Series
2004-AR12, Class A-1 and Class A-2. Funds in
the Yield Maintenance Reserve Fund shall be
held in trust for the Holders of
the related Classes of Certificates for the
uses and purposes set forth in
this Agreement. The Yield Maintenance
Reserve Fund will not be an asset of any
REMIC.
Section
1.02 Rules of
Construction.
Except as
otherwise expressly provided in this Agreement or unless the
context clearly requires otherwise
(a)
References to designated articles, sections, subsections,
exhibits,
and other subdivisions of this Agreement,
such as "Section 6.12 (a)," refer to
the designated article, section,
subsection, exhibit, or other subdivision of
this Agreement as a whole and to all
subdivisions of the designated article,
section, subsection, exhibit, or other
subdivision. The words "herein,"
"hereof," "hereto," "hereunder," and other
words of similar import refer to
this Agreement as a whole and not to any
particular article, section, exhibit,
or other subdivision of this Agreement.
(b) Any
term that relates to a document or a statute, rule, or
regulation
includes any amendments, modifications,
supplements, or any other changes that
may have occurred since the document,
statute, rule, or regulation came into
being, including changes that occur after
the date of this Agreement.
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(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. Also on the
Closing Date the Depositor shall
deposit $100 into the Certificate Account
for the benefit of the Class P
Certificates and $1,000 into the Carryover
Shortfall Reserve Fund.
(b) The
Depositor, concurrently with the execution and delivery of this
Agreement, hereby transfers to the Trustee
for the benefit of the
Certificateholders, without recourse, all
the interest of the Depositor in the
Trust Fund, together with the Depositor's
right to require the Seller to cure
any breach of a representation or warranty
made in this Agreement by the
Seller or to repurchase or substitute for
any affected Mortgage Loan in
accordance with this Agreement. The
Depositor hereby directs the Trustee to
execute the Yield Maintenance
Agreement.
(c) In
connection with the transfer and assignment of each Mortgage
Loan,
the Depositor has delivered (or, in the
case of the Delay Delivery Mortgage
Loans, will deliver to the Trustee within
the time periods specified in the
definition of Delay Delivery Mortgage
Loans), for the benefit of the
Certificateholders the following documents
or instruments with respect to each
Mortgage Loan so assigned:
(i) The original Mortgage Note, endorsed by manual or facsimile
signature in
blank in the following form: "Pay to the order of
_______________
______________without recourse," with all intervening
endorsements
showing a complete chain of endorsement from the originator
to the Person
endorsing the Mortgage Note (each endorsement being
sufficient to
transfer all interest of the party so endorsing, as
noteholder or
assignee thereof, in that Mortgage Note) or a lost note
affidavit for
any Lost Mortgage Note from the Seller stating that the
original
Mortgage Note was lost or destroyed, together with a copy of
the
Mortgage
Note.
(ii) except as provided below and for each Mortgage Loan that is
not
a MERS Mortgage
Loan, the original recorded Mortgage or a copy of such
Mortgage
certified by the Seller as being a true and complete copy of
the
Mortgage (or, in
the case of a Mortgage for which the related Mortgaged
Property is
located in the Commonwealth of Puerto Rico, a true copy of
the Mortgage
certified as such by the applicable notary) and in the case
of each MERS
Mortgage Loan, the original Mortgage, noting the presence of
the MIN of the
Mortgage Loans and either
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language
indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is a MOM
Loan or if the Mortgage Loan was not a MOM Loan at
origination, the
original Mortgage and the assignment thereof to MERS,
with evidence of
recording indicated thereon, or a copy of the Mortgage
certified by the
public recording office in which such Mortgage has been
recorded;
(iii) in the case of each Mortgage Loan that is not a MERS
Mortgage
Loan, a duly
executed assignment of the Mortgage (which may be included
in a blanket
assignment or assignments), together with, except as
provided below,
all interim recorded assignments of such mortgage (each
such assignment,
when duly and validly completed, to be in recordable
form and
sufficient to effect the assignment of and transfer to the
assignee
thereof, under the Mortgage to which the assignment relates);
provided that,
if the related Mortgage has not been returned from the
applicable
public recording office, such assignment of the Mortgage may
exclude the
information to be provided by the recording office; provided,
further, that
such assignment of Mortgage need not be delivered in the
case of a
Mortgage for which the related Mortgaged Property is located in
the Commonwealth
of Puerto Rico:
(iv) Except as provided below, the original recorded Mortgage or
a
copy of the
Mortgage certified by the Seller (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) as being a true and complete copy of the
Mortgage.
(v) 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.
(vi) The original or copies of each assumption, modification,
written
assurance, or substitution agreement.
(vii) Except as provided below, the original or duplicate
original
lender's title
policy and all its riders.
(viii) 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
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(F) executed UCC-3
financing statements or other appropriate
UCC financing statements required by state law, evidencing
a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form
suitable for recordation). If in connection with any
Mortgage Loan the Depositor cannot deliver
(G)
(a) the original recorded Mortgage,
(b) all interim recorded assignments, or
(c) the lender's title policy (together with all its
riders).
In
addition, in connection with the assignment of any MERS
Mortgage
Loan, the Seller agrees that it will cause,
at the Seller's expense, the
MERS(R) System to indicate that the
Mortgage Loans sold by the Seller to the
Depositor have been assigned by the Seller
to the Trustee in accordance with
this Agreement for the benefit of the
Certificateholders by including (or
deleting, in the case of Mortgage Loans
which 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 Master Servicer to, and the
Master Servicer agrees that it will
not, alter the information referenced in
this paragraph with respect to any
Mortgage Loan sold by the Seller to the
Depositor during the term of this
Agreement unless and until such Mortgage
Loan is repurchased in accordance
with the terms of this Agreement.
In the
event that in connection with any Mortgage Loan that is not a
MERS Mortgage Loan the Depositor cannot
deliver (a) the original recorded
Mortgage, (b) all interim recorded
assignments or (c) the lender's title
policy (together with all riders thereto)
satisfying the requirements of
clause (ii), (iii) or (v) above,
respectively, concurrently with the execution
and delivery of this Agreement because such
document or documents have not
been returned from the applicable public
recording office in the case of
clause (ii) or (iii) above, or because the
title policy has not been delivered
to either the Master Servicer or the
Depositor by the applicable title insurer
in the case of clause (v) above, the
Depositor shall promptly deliver to the
Trustee, in the case of clause (ii) or
(iii) above, such original Mortgage or
such interim assignment, as the case may
be, with evidence of recording
indicated thereon upon receipt thereof from
the public recording office, or a
copy thereof, certified, if appropriate, by
the relevant recording office, but
in no event shall any such delivery of the
original Mortgage and each such
interim assignment or a copy thereof,
certified, if appropriate, by the
relevant recording office, be made later
than one year following the Closing
Date, or, in the case of clause (v) above,
no later than 120 days following
the Closing Date; provided, however, in the
event the Depositor is unable to
deliver by such date each Mortgage and each
such interim assignment by reason
of the fact that any such documents have
not been returned by the appropriate
recording office, or, in the case of each
such interim assignment, because the
related Mortgage has not been returned by
the appropriate recording office,
the Depositor shall deliver such documents
to the Trustee as promptly as
possible upon receipt thereof 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 Master 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
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<PAGE>
reconveyance, the Master Servicer shall
execute and deliver the required
document to the public recording office. If
a public recording office retains
the original recorded Mortgage or if a
Mortgage is lost after recordation in a
public recording office, the Seller shall
deliver to the Trustee a copy of the
Mortgage certified by the public recording
office to be a true and complete
copy of the original recorded Mortgage.
As
promptly as practicable after any transfer of a Mortgage Loan
under
this Agreement, and in any event within
thirty days after the transfer, the
Trustee shall (i) affix the Trustee's name
to each assignment of Mortgage, as
its assignee, and (ii) cause to be
delivered for recording in the appropriate
public office for real property records the
assignments of the Mortgages to
the Trustee, except that, if the Trustee
has not received the information
required to deliver any assignment of a
Mortgage for recording, the Trustee
shall deliver it as soon as practicable
after receipt of the needed
information and in any event within thirty
days.
The
Trustee need not record any assignment that relates to a
Mortgage
Loan (a) the Mortgaged Property and
Mortgage File relating to which are
located in California or (b) in any other
jurisdiction (including Puerto Rico)
under the laws of which, as evidenced by an
Opinion of Counsel delivered by
the Seller (at the Seller's expense) to the
Trustee, recording the assignment
is not necessary to protect the Trustee's
and the Certificateholders' interest
in the related Mortgage Loan. The Seller
shall deliver such Opinion of Counsel
within 90 days of the Closing Date.
If any
Mortgage Loans have been prepaid in full as of the Closing
Date,
the Depositor, in lieu of delivering the
above documents to the Trustee, will
deposit in the Certificate Account the
portion of the prepayment that is
required to be deposited in the Certificate
Account pursuant to Section 3.06.
Notwithstanding anything to the contrary in this Agreement, within
five
Business Days after the Closing Date, the
Seller shall either
(x) deliver to
the Trustee the Mortgage File as required pursuant
to this Section 2.01 for each Delay Delivery Mortgage Loan or
(y) (A)
repurchase the Delay Delivery Mortgage Loan or (B)
substitute the Substitute Mortgage Loan for a Delay Delivery
Mortgage
Loan, which repurchase or substitution shall be
accomplished in the manner and subject to the conditions in
Section 2.03 (treating each such Delay Delivery Mortgage Loan as
a
Deleted Mortgage Loan for purposes of such Section 2.03);
provided, however, that if the Seller fails
to deliver a Mortgage File for any
Delay Delivery Mortgage Loan within the
period specified herein, the Seller
shall use its best reasonable efforts to
effect a substitution, rather than a
repurchase of, such Deleted Mortgage Loan
and provided further that the cure
period provided for in Section 2.02 or in
Section 2.03 shall not apply to the
initial delivery of the Mortgage File for
such Delay Delivery Mortgage Loan,
but rather the Seller shall have five (5)
Business Days to cure such failure
to deliver. At the end of such period, the
Trustee shall send a Delay Delivery
Certification for the Delay Delivery
Mortgage Loans delivered during such
period in accordance with the provisions of
Section 2.02.
(d) The Seller
agrees to treat the transfer of the Mortgage Loans to the
Depositor as a sale for all tax,
accounting, and regulatory purposes.
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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 Master Servicer and
the Seller an Initial Certification
in the form of Exhibit G-1. Based on its
review and examination, and only as
to the documents identified in such Initial
Certification, the Trustee
acknowledges that such documents appear
regular on their face and relate to
such Mortgage Loans. The Trustee shall be
under no duty or obligation to
inspect, review or examine said documents,
instruments, certificates or other
papers to determine that the same are
genuine, enforceable or appropriate for
the represented purpose or that they have
actually been recorded in the real
estate records or that they are other than
what they purport to be on their
face.
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 Master 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 Master 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 Master
Servicer or the Seller and the Trustee over
the location or status of the
recorded document, then the substitution or
purchase shall occur within 720
days from the Closing Date. In no other
case may a substitution or purchase
occur more than 540 days from the Closing
Date.
The
Trustee shall deliver written notice to each Rating Agency
within
270 days from the Closing Date indicating
each Mortgage Loan (a) that has not
been returned by the appropriate recording
office or (b) as to which there is
a dispute as to location or status of the
Mortgage Loan. The notice shall be
delivered every 90 days thereafter until
the related Mortgage Loan is returned
to the Trustee. Any
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substitution pursuant to (a) above or
purchase pursuant to (b) above shall not
be effected before the delivery to the
Trustee of the Opinion of Counsel
required by Section 2.05, and any
substitution pursuant to (a) above shall not
be effected before the additional delivery
to the Trustee of a Request for
Release substantially in the form of
Exhibit N. No substitution is permitted
to be made in any calendar month after the
Determination Date for the month.
The
Purchase Price for any Mortgage Loan shall be deposited by the
Seller in the Certificate Account by the
Distribution Account Deposit Date for
the Distribution Date in the month
following the month of repurchase and, upon
receipt of the deposit and certification
with respect thereto in the form of
Exhibit O, 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 Master 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
Master Servicer shall promptly deliver to
the Trustee, upon the execution or
receipt thereof, the originals of any other
documents or instruments
constituting the Mortgage File that come
into the possession of the Master
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 Master Servicer.
(a)
IndyMac, in its capacities as Seller and Master 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. 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
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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
Master Servicer and the Trustee for any
expenses reasonably incurred by the
Master 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 Master
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
Master Servicer shall deliver the amended
Mortgage Loan Schedule to the
Trustee. Upon the substitution, the
Substitute Mortgage Loans shall be subject
to this Agreement in all respects, and the
Seller shall be deemed to have made
with respect to the Substitute Mortgage
Loans, as of the date of substitution,
the representations and warranties made
pursuant to Section 2.03(b) with
respect to the Mortgage Loan. Upon any
substitution and the deposit to the
Certificate Account of the amount required
to be deposited therein in
connection with the substitution as
described in the following paragraph, the
Trustee shall release the Mortgage File
held for the benefit of the
Certificateholders relating to the Deleted
Mortgage Loan to the Seller and
shall execute and deliver at the Seller's
direction such instruments of
transfer or assignment prepared by the
Seller, in each case without recourse,
as shall be necessary to vest title in the
Seller, or its designee, the
Trustee's interest in any Deleted Mortgage
Loan substituted for pursuant to
this Section 2.03.
For any
month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted
Mortgage Loans, the Master 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 and interest
thereon (the "Substitution Adjustment
Amount") plus, if the Seller is not the
Master 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, the
delivery of the Opinion of Counsel
required by Section 2.05 and receipt of a
Request for Release in the form of
Exhibit N, 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
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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.
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 and Repurchases.
(a)
Notwithstanding any contrary provision of this Agreement, no
substitution pursuant to Section 2.02 or
2.03 shall be made more than 90 days
after the Closing Date unless the Seller
delivers to the Trustee an Opinion of
Counsel, which Opinion of Counsel shall not
be at the expense of either the
Trustee or the Trust Fund, addressed to the
Trustee, to the effect that such
substitution will not (i) result in the
imposition of the tax on "prohibited
transactions" on the Trust Fund or
contributions after the Startup Date, as
defined in sections 860F(a)(2) and 860G(d)
of the Code, respectively or (ii)
cause any REMIC created under this
Agreement to fail to qualify as a REMIC at
any time that any Certificates are
outstanding.
(b) Upon
discovery by the Depositor, the Seller, the Master 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.
The "tax
matters person" with respect to any REMIC shall be the Trustee.
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
Master Servicer to Service Mortgage Loans.
For and on
behalf of the Certificateholders, the Master Servicer shall
service and administer the Mortgage Loans
in accordance with this Agreement
and the Servicing Standard.
The Master
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 Master 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 Master
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
Master 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 Master Servicer
to service and administer the Mortgage
Loans to the extent that the Master
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 Master Servicer.
The Master
Servicer further is authorized and empowered by the Trustee,
on behalf of the Certificateholders and the
Trustee, in its own name or in the
name of the Subservicer, when the Master
Servicer or the Subservicer, as the
case may be, believes it appropriate in its
best judgment to register any
Mortgage Loan on the MERS(R) System, or
cause the removal from the
registration of any Mortgage Loan on the
MERS(R) System, to execute and
deliver, on behalf of the Trustee and the
Certificateholders or any of them,
any and all instruments of assignment and
other comparable instruments with
respect to such assignment or re-recording
of a Mortgage in the name of MERS,
solely as nominee for the Trustee and its
successors and assigns.
In accordance
with and to the extent of the Servicing Standard, the
Master 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 Master 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.
Section
3.02
Subservicing; Enforcement of the Obligations of
Subservicers.
(a) The
Master Servicer may arrange for the subservicing of any
Mortgage
Loan by a subservicer pursuant to a
subservicing agreement (a "Subservicer").
The subservicing arrangement and the
related subservicing agreement must
provide for the servicing of the Mortgage
Loans in a manner consistent with
the servicing arrangements contemplated
hereunder. Unless the context
otherwise requires, references in this
Agreement to actions taken or to be
taken by the Master Servicer in servicing
the Mortgage Loans
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include actions taken or to be taken by a
Subservicer on behalf of the Master
Servicer. Notwithstanding anything in any
subservicing agreement or this
Agreement relating to agreements or
arrangements between the Master Servicer
and a Subservicer or references to actions
taken through a Subservicer or
otherwise, the Master Servicer shall remain
obligated and liable to the
Trustee and Certificateholders for the
servicing and administration of the
Mortgage Loans in accordance with this
Agreement without diminution of its
obligation or liability by virtue of the
subservicing agreements or
arrangements or by virtue of
indemnification from the Subservicer and to the
same extent and under the same terms as if
the Master Servicer alone were
servicing and administering the Mortgage
Loans. All actions of each
Subservicer performed pursuant to the
related subservicing agreement shall be
performed as agent of the Master Servicer
with the same effect as if performed
directly by the Master Servicer.
(b) For
purposes of this Agreement, the Master Servicer shall be deemed
to have received any collections,
recoveries, or payments with respect to the
Mortgage Loans that are received by the
Subservicer regardless of whether the
payments are remitted by the Subservicer to
the Master Servicer.
Section
3.03
Rights of the Depositor and the Trustee in Respect
of the Master Servicer.
The
Depositor may, but is not obligated to, enforce the obligations
of
the Master Servicer under this Agreement
and may, but is not obligated to,
perform, or cause a designee to perform,
any defaulted obligation of the
Master Servicer under this Agreement and in
connection with any such defaulted
obligation to exercise the related rights
of the Master Servicer under this
Agreement; provided that the Master
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 Master
Servicer nor shall the Trustee or the
Depositor be obligated to supervise the
performance of the Master Servicer under
this Agreement or otherwise.
Section
3.04
No Contractual Relationship Between Subservicers
and the Trustee.
Any
subservicing arrangement that may be entered into and any other
transactions or services relating to the
Mortgage Loans involving a
Subservicer in its capacity as such and not
as an originator shall be deemed
to be solely between the Subservicer and
the Master Servicer alone, and the
Trustee and Certificateholders shall not be
deemed parties thereto and shall
have no claims, rights, obligations,
duties, or liabilities with respect to
the Subservicer in its capacity as such
except as set forth in Section 3.05.
Section
3.05
Trustee to Act as Master Servicer.
If the
Master Servicer for any reason is no longer the Master Servicer
under this Agreement (including because of
the occurrence or existence of an
Event of Default), the Trustee or its
successor shall assume all of the rights
and obligations of the Master Servicer
under this Agreement arising thereafter
(except that the Trustee shall not be
(i) liable for losses of the Master Servicer pursuant to
Section
3.10 or
any acts or omissions of the predecessor Master 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 Master Servicer pursuant
to
Section
2.03, or
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(v) deemed to have made any representations and warranties of
the
Master
Servicer hereunder). Any assumption shall be subject to Section
7.02.
Every
subservicing agreement entered into by the Master Servicer
shall
contain a provision giving the successor
Master Servicer the option to
terminate the agreement if a successor
Master Servicer is appointed.
If the
Master Servicer is no longer the Master Servicer for any reason
(including because the occurrence or
existence of any Event of Default), the
Trustee (or any other successor Master
Servicer) may, at its option, succeed
to any rights and obligations of the Master
Servicer under any subservicing
agreement in accordance with its terms. The
Trustee (or any other successor
Master Servicer) shall not incur any
liability or have any obligations in its
capacity as successor Master Servicer under
a subservicing agreement arising
before the date of succession unless it
expressly elects to succeed to the
rights and obligations of the Master
Servicer thereunder; and the Master
Servicer shall not thereby be relieved of
any liability or obligations under
the subservicing agreement arising before
the date of succession.
The Master
Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to
the assuming party all documents
and records relating to each subservicing
agreement and the Mortgage Loans
then being serviced thereunder and an
accounting of amounts collected held by
it and otherwise use its best efforts to
effect the orderly and efficient
transfer of the subservicing agreement to
the assuming party.
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 Master Servicer to act as
successor Master Servicer under this
Agreement and the transactions provided
for in this Agreement.
Section
3.06 Collection of Mortgage Loan Payments; Servicing Accounts;
Collection Account; Certificate Account;
Distribution Account; Yield
Maintenance Reserve Fund.
(a) In
accordance with and to the extent of the Servicing Standard,
the
Master 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 Master
Servicer may in its discretion (i)
waive any late payment charge or, subject
to Section 3.21, 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 Master Servicer may,
consistent with the Servicing
Standard, waive, modify or vary any term of
that Mortgage Loan (including
modifications that change the Mortgage
Rate, forgive the payment of principal
or interest or extend the final maturity
date of that Mortgage Loan ), accept
payment from the related Mortgagor of an
amount less than the Stated Principal
Balance in final satisfaction of that
Mortgage Loan, or consent to the
postponement of strict compliance with any
such term or otherwise grant
indulgence to any Mortgagor if in the
Master 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 Master 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
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<PAGE>
Principal Balance of the Mortgage Loans),
the Master 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 Master
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 Master 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 Master
Servicer shall not have the discretion to
sell any Delinquent or defaulted
Mortgage Loan.
(b) The
Master Servicer shall establish and maintain (or, if a Mortgage
Loan is subserviced by another Person,
cause the related Subservicer to
establish and maintain) one or more
Servicing Accounts (the "Servicing
Account") into which the Master Servicer
shall deposit on a daily basis within
one Business Day of receipt, the following
payments and collections received
by it or remitted by any Subservicer 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):
(i) all payments on account of principal on the Mortgage Loans,
including
Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans,
net
of the
related Servicing Fee; and
(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 Master
Servicer's normal servicing procedures.
By the
Withdrawal Date in each calendar month, the Master Servicer
shall
(a) withdraw from the Servicing Account all
amounts on deposit therein
pursuant to clauses (i) and (ii) above
(other than amounts attributable to a
Principal Prepayment in Full) and (b)
deposit such amounts in the Collection
Account.
By the
Business Day in each calendar month following the deposit in
the
Servicing Account of amounts on deposit
therein pursuant to clause (iii) above
or pursuant to any Principal Prepayment in
Full, the Master Servicer shall (a)
withdraw such amounts from the Servicing
Account and (b) deposit such amounts
in the Collection Account.
(c) The
Master Servicer shall establish and maintain a Collection
Account
(the "Collection Account") into which the
Master Servicer shall deposit, as
and when required by paragraph (b) of this
Section 3.06, all amounts required
to be deposited into the Collection Account
pursuant to that paragraph. The
Collection Account shall be an Eligible
Account held for the benefit of the
Certificateholders.
(d) The Master
Servicer shall establish and maintain a Certificate
Account into which the Master Servicer
shall deposit on a daily basis (i)
within one Business Day of deposit in the
Collection Account (in the case of
items (i) through (iii) below) and (2)
within one Business Day of receipt (in
the case of all other items), except as
otherwise specified herein, the
following payments and collections received
by it or remitted by any
Subservicer 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:
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(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 Master
Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the Master Servicer
pursuant
to Section 3.06(f) in connection with any losses on Permitted
Investments;
(v) any amounts required to be deposited by the Master Servicer
pursuant
to Sections 3.10 and 3.12;
(vi)
all Purchase Prices from the Master Servicer or Seller and all
Substitution Adjustment Amounts;
(vii) all Advances made by the Master 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 Master 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 Master 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 Master Servicer. If
the Master 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 Master 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 Master Servicer to the
Trustee
pursuant to Section 3.09(a);
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<PAGE>
(ii) any amount deposited by the Master 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
Master 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 Master Servicer.
(f) Each
institution at which the Certificate Account is maintained
shall
invest the funds in such account as
directed in writing by the Master Servicer
in Permitted Investments, which shall
mature not later than the second
Business Day preceding the related
Distribution Account Deposit Date (except
that if the Permitted Investment is an
obligation of the institution that
maintains the account, then the Permitted
Investment shall mature not later
than the Business Day preceding the
Distribution Account Deposit Date) and
which shall not be sold or disposed of
before its maturity. The funds in the
Distribution Account shall remain
uninvested. All such Permitted Investments
shall be made in the name of the Trustee,
for the 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 Master
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
Master 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) (i) On
the Closing Date, the Trustee shall establish and maintain a
Yield Maintenance Reserve Fund in its name,
in trust for the benefit of the
Holders of the Class A-1 and Class A-2
Certificates. The Yield Maintenance
Reserve Fund shall be an Eligible Account,
and funds on deposit in the account
shall be held separate and apart from, and
shall not be commingled with, any
other moneys, including without limitation,
other moneys held by the Trustee
pursuant to this Agreement.
(ii) The Trustee shall deposit in the Yield Maintenance Reserve
Fund
all
amounts received from the Cap Counterparty on any Distribution
Date
pursuant to the
Yield Maintenance Agreement. If the Trustee shall deposit
into the
Yield Maintenance Reserve Fund any amount not required to be
deposited
in that account, it may at any time withdraw such amount from
the Yield
Maintenance Reserve Fund, any provision in this Agreement to
the
contrary notwithstanding. Funds in the Yield Maintenance Reserve
Fund
shall be
invested in Permitted Investments, which shall mature on or
before the
next Distribution Date, by the Trustee at the direction of the
Seller.
Any investment earnings on such amounts, net of any losses,
shall
be payable
to the Seller. The amount of any realized losses on Permitted
Investments in the Yield Maintenance Reserve Fund shall promptly
be
deposited
by the Seller in the Yield Maintenance Reserve Fund. The Seller
shall be
the owner of the Yield Maintenance Reserve Fund for federal tax
purposes.
The Trustee shall have no liability for losses on investments
in
Permitted Investments made pursuant to this Section (other than as
an
obligor on
such investments). The Trustee shall account for the Yield
Maintenance Reserve Fund as an outside reserve fund within the
meaning of
Treasury
regulation 1.860G-2(h) and not an asset of any REMIC created
pursuant
to this Agreement.
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(iii) Amounts on deposit in the Yield Maintenance Reserve Fund
shall
be
withdrawn by the Trustee in connection with any Distribution Date
on
which
there exists a Carryover Shortfall Amount for (A) the Class A-1
Certificates or (B) the Class A-2 Certificates, as applicable, to
pay the
amount of
such Carryover Shortfall Amount (to the extent of funds on
deposit in
the Yield Maintenance Reserve Fund) to the related Class of
Certificates. On any Distribution Date, any amounts on deposit in
the
Yield
Maintenance Reserve Fund in excess of the related Carryover
Shortfall
Amount shall be paid to the Holder of the Class A-X-2
Certificates.
(h) The
Master 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 Master
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 Master
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 Master 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 Master
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
Master Servicer shall advance any payments referred to in
Section 3.07(a) that are not timely paid by
the Mortgagors or advanced by the
Master Servicer on the date when the tax,
premium or other cost for which such
payment is intended is due, but the Master
Servicer shall be required so to
advance only to the extent that such
advances, in the good faith judgment of
the Master Servicer, will be recoverable by
the Master Servicer out of
Insurance Proceeds, Liquidation Proceeds or
otherwise.
Section
3.08
Access to Certain Documentation and Information Regarding
the Mortgage Loans.
The Master
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 Master Servicer.
Upon
reasonable advance notice in writing, the Master Servicer will
provide to each Certificateholder or
Certificate Owner that is a savings and
loan association, bank, or insurance
company
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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
Master Servicer shall be entitled to be
reimbursed by each such
Certificateholder or Certificate Owner for
actual expenses incurred by the
Master Servicer in providing the reports
and access.
Section
3.09
Permitted Withdrawals from the Certificate Account, the
Distribution Account and the Yield
Maintenance Reserve Fund.
(a) The
Master 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 Master Servicer or the related subservicer
(to
the extent
not previously retained) the servicing compensation to which
it is
entitled pursuant to Section 3.15, and to pay to the Master
Servicer,
as additional master servicing compensation, earnings on or
investment
income with respect to funds in or credited to the
Certificate Account;
(ii) to reimburse the Master Servicer or successor Master
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 Master Servicer or successor Master
Servicer
for any Nonrecoverable Advance previously made by it;
(iv) to reimburse the Master Servicer for Insured Expenses from
the
related Insurance Proceeds;
(v) to reimburse the Master Servicer for (a) unreimbursed
Servicing
Advances, the Master 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 and (b) for unpaid Servicing Fees as
provided
in Section 3.12;
(vi) to pay to the purchaser, with respect to each Mortgage
Loan
or
property acquired in respect of such Mortgage Loan that has
been
purchased
pursuant to Section 2.02, 2.03, or 3.12, all amounts received
thereon
after the date of such purchase;
(vii) to reimburse the Seller, the Master Servicer, or the
Depositor for expenses incurred by
any of them and reimbursable pursuant
to Section
6.03;
(viii) to withdraw any amount deposited in the Certificate
Account
and not
required to be deposited in the Certificate Account;
(ix) by the
Distribution Account Deposit Date, to withdraw (1) the
Available
Funds and the Trustee Fee for the Distribution Date, to the
extent on
deposit, and (2) the Prepayment Charges on deposit, and remit
such
amount to the Trustee for deposit in the Distribution Account;
and
(x) to clear and terminate the Certificate Account upon
termination of this Agreement pursuant to Section 9.01.
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<PAGE>
The Master
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 Master Servicer shall
deliver to the Trustee an Officer's
Certificate of a Servicing Officer
indicating the amount of any previous
Advance determined by the Master 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 Master 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) On
each Distribution Date, the Trustee shall make withdrawals from
the Yield Maintenance Reserve Fund for
deposit in the Distribution Account of
the amounts required pursuant to Section
3.06(g). On the earlier of (i) the
termination of this Agreement pursuant to
Section 9.01, (ii) the Distribution
Date on which the respective Class
Certificate Balances of the Class A-1 and
Class A-2 Certificates are reduced to zero,
and (iii) the cap contract
termination date, any amount remaining on
deposit in the Yield Maintenance
Reserve Fund after giving effect to the
requirements of the preceding sentence
shall be withdrawn by the Trustee and paid
to the Class A-X-2 Certificates.
Section
3.10 Maintenance
of Hazard Insurance; Maintenance of Primary
Insurance Policies.
(a) The
Master 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 Master Servicer's normal
servicing procedures) shall be deposited in
the Certificate Account. Any cost
incurred in maintaining any insurance shall
not, for the purpose of
calculating monthly distributions to the
Certificateholders or remittances to
the Trustee for their benefit, be added to
the principal balance of the
Mortgage Loan, notwithstanding that the
Mortgage Loan so permits. Such costs
shall be recoverable by the Master Servicer
out of late payments by the
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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 Master 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
Master 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
Master 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 Master
Servicer of the Mortgage Loans, the Master
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
Master 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 Master Servicer,
would have been covered
thereunder. The Master 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
Master Servicer need not maintain any
Primary Insurance Policy if maintaining the
Primary Insurance Policy is
prohibited by applicable law. The Master
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 Master Servicer from
the related liquidation proceeds.
In
connection with its activities as Master Servicer of the
Mortgage
Loans, the Master 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 Master Servicer under any Primary
Insurance Policies shall be deposited
in the Certificate Account or the
Collection Account (as applicable).
Section
3.11
Enforcement of Due-On-Sale Clauses; Assumption Agreements.
(a) Except as otherwise provided in this
Section 3.11, when any property
subject to a Mortgage has been conveyed by
the Mortgagor, the Master 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 Master
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
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<PAGE>
or Mortgage is not otherwise so required
under the Mortgage Note or Mortgage
as a condition to the transfer.
If (i) the
Master 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 Master
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 Master Servicer enters into
the agreement) by the applicable Required
Insurance Policies.
The Master
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 Master
Servicer shall not be deemed to be
in default under this Section 3.11 because
of any transfer or assumption that
the Master Servicer reasonably believes it
is restricted by law from
preventing, for any reason whatsoever.
(b)
Subject to the Master 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 Master
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 Master 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 Master 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 Master 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 Master Servic
