INDYMAC ABS, INC.,
Depositor
INDYMAC BANK, F.S.B.,
Seller and Master
Servicer
and
DEUTSCHE BANK NATIONAL TRUST COMPANY
Trustee
POOLING AND SERVICING
AGREEMENT
Dated as of September 1,
2005
IndyMac Residential Mortgage-Backed
Trust, Series 2005-L2
Residential Mortgage-Backed
Certificates, Series 2005-L2
Table of Contents
ARTICLE I
DEFINITIONS
|
Section 1.01
|
Defined Terms.
|
|
Section 1.02
|
Allocation of Certain Interest
Shortfalls.
|
|
Section 1.03
|
Accounting.
|
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
|
Section 2.01
|
Conveyance of Mortgage Loans.
|
|
Section 2.02
|
Acceptance by Trustee.
|
|
Section 2.03
|
Repurchase or Substitution of Mortgage Loans by
the Seller.
|
|
Section 2.04
|
[Reserved].
|
|
Section 2.05
|
Representations, Warranties and Covenants of the
Master Servicer.
|
|
Section 2.06
|
Representations and Warranties of the
Depositor.
|
|
Section 2.07
|
Issuance of Certificates.
|
|
Section 2.08
|
Conveyance of REMIC 1 Regular Interests and
Acceptance of REMIC 2 and REMIC 3 by Trustee.
|
ARTICLE III
ADMINISTRATION AND SERVICING OF THE
MORTGAGE LOANS
|
Section 3.01
|
Master Servicer to Act as Master
Servicer.
|
|
Section 3.02
|
Sub-Servicing Agreements Between Master Servicer
and Sub-Servicers; Special Servicing.
|
|
Section 3.03
|
Successor Sub-Servicers.
|
|
Section 3.04
|
Liability of the Master Servicer.
|
|
Section 3.05
|
No Contractual Relationship Between
Sub-Servicers and the Trustee or Certificateholders.
|
|
Section 3.06
|
Assumption or Termination of Sub-Servicing
Agreements by Trustee.
|
|
Section 3.07
|
Collection of Certain Mortgage Loan
Payments.
|
|
Section 3.08
|
Sub-Servicing Accounts.
|
|
Section 3.09
|
Collection of Taxes, Assessments and Similar
Items; Servicing Accounts.
|
|
Section 3.10
|
Collection Account; Distribution
Account.
|
|
Section 3.11
|
Withdrawals from the Collection Account and
Distribution Account.
|
|
Section 3.12
|
Investment of Funds in the Collection Account
and the Distribution Account.
|
|
Section 3.13
|
[Reserved].
|
|
Section 3.14
|
Maintenance of Errors and Omissions and Fidelity
Coverage.
|
|
Section 3.15
|
Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
|
|
Section 3.16
|
Realization Upon Defaulted Mortgage
Loans.
|
|
Section 3.17
|
Trustee to Cooperate; Release of Mortgage
Files.
|
|
Section 3.18
|
Servicing Compensation.
|
|
Section 3.19
|
Reports to the Trustee; Collection Account
Statements.
|
|
Section 3.20
|
Statement as to Compliance.
|
|
Section 3.21
|
Independent Public Accountants’ Servicing
Report.
|
|
Section 3.22
|
Access to Certain Documentation; Filing of
Reports by Trustee.
|
|
Section 3.23
|
Title, Maintenance and Disposition of REO
Property.
|
|
Section 3.24
|
Obligations of the Master Servicer in Respect of
Prepayment Interest Shortfalls.
|
|
Section 3.25
|
[Reserved].
|
|
Section 3.26
|
Obligations of the Master Servicer in Respect of
Mortgage Rates and Monthly Payments.
|
|
Section 3.27
|
Excess Reserve Fund Account.
|
ARTICLE IV
FLOW OF FUNDS
|
Section 4.01
|
Distributions.
|
|
Section 4.02
|
Statements.
|
|
Section 4.03
|
Remittance Reports; Advances.
|
|
Section 4.04
|
Distributions on the REMIC 1 Regular Interests
and REMIC 2 Regular Interests.
|
|
Section 4.05
|
Allocation of Realized Losses.
|
|
Section 4.06
|
The Policy.
|
|
Section 4.07
|
Swap Account
|
ARTICLE V
THE CERTIFICATES
|
Section 5.01
|
The Certificates.
|
|
Section 5.02
|
Registration of Transfer and Exchange of
Certificates.
|
|
Section 5.03
|
Mutilated, Destroyed, Lost or Stolen
Certificates.
|
|
Section 5.04
|
Persons Deemed Owners.
|
|
Section 5.05
|
Appointment of Paying Agent.
|
ARTICLE VI
THE MASTER SERVICER AND THE
DEPOSITOR
|
Section 6.01
|
Liability of the Master Servicer and the
Depositor.
|
|
Section 6.02
|
Merger or Consolidation of, or Assumption of the
Obligations of, the Master Servicer or the Depositor.
|
|
Section 6.03
|
Limitation on Liability of the Master Servicer
and Others.
|
|
Section 6.04
|
Master Servicer Not to Resign.
|
|
Section 6.05
|
Delegation of Duties.
|
|
Section 6.06
|
Inspection.
|
ARTICLE VII
DEFAULT
|
Section 7.01
|
Master Servicer Events of
Termination.
|
|
Section 7.02
|
Trustee to Act; Appointment of
Successor.
|
|
Section 7.03
|
Waiver of Defaults.
|
|
Section 7.04
|
Notification to Certificateholders.
|
|
Section 7.05
|
Survivability of Master Servicer
Liabilities.
|
ARTICLE VIII
THE TRUSTEE
|
Section 8.01
|
Duties of Trustee.
|
|
Section 8.02
|
Certain Matters Affecting the
Trustee.
|
|
Section 8.03
|
Trustee Not Liable for Certificates or Mortgage
Loans.
|
|
Section 8.04
|
Trustee May Own Certificates.
|
|
Section 8.05
|
Trustee Fee and Expenses.
|
|
Section 8.06
|
Eligibility Requirements for Trustee.
|
|
Section 8.07
|
Resignation or Removal of Trustee.
|
|
Section 8.08
|
Successor Trustee.
|
|
Section 8.09
|
Merger or Consolidation of Trustee.
|
|
Section 8.10
|
Appointment of Co-Trustee or Separate
Trustee.
|
|
Section 8.11
|
Limitation of Liability.
|
|
Section 8.12
|
Trustee May Enforce Claims Without Possession of
Certificates.
|
|
Section 8.13
|
Suits for Enforcement.
|
|
Section 8.14
|
Waiver of Bond Requirement.
|
|
Section 8.15
|
Waiver of Inventory, Accounting and Appraisal
Requirement.
|
|
Section 8.16
|
Periodic Filings.
|
|
Section 8.17
|
Access to Records of Trustee.
|
ARTICLE IX
REMIC ADMINISTRATION
|
Section 9.01
|
REMIC Administration.
|
|
Section 9.02
|
Prohibited Transactions and
Activities.
|
|
Section 9.03
|
Indemnification with respect to Certain Taxes
and Loss of REMIC Status.
|
ARTICLE X
TERMINATION
|
Section 10.01
|
Termination.
|
|
Section 10.02
|
Additional Termination Requirements.
|
ARTICLE XI
MISCELLANEOUS PROVISIONS
|
Section 11.01
|
Amendment.
|
|
Section 11.02
|
Recordation of Agreement;
Counterparts.
|
|
Section 11.03
|
Limitation on Rights of
Certificateholders.
|
|
Section 11.04
|
Governing Law; Jurisdiction.
|
|
Section 11.05
|
Notices.
|
|
Section 11.06
|
Severability of Provisions.
|
|
Section 11.07
|
Article and Section References.
|
|
Section 11.08
|
Notice to the Rating Agencies and the
Certificate Insurer.
|
|
Section 11.09
|
Further Assurances.
|
|
Section 11.10
|
Benefits of Agreement.
|
|
Section 11.11
|
Acts of Certificateholders.
|
|
Section 11.12
|
Grant of Security Interest.
|
|
Section 11.13
|
Official Record.
|
|
Section 11.14
|
Protection of Assets.
|
|
Section 11.15
|
Qualifying Special Purpose Entity.
|
|
Section 11.16
|
Rights of the Certificate Insurer.
|
EXHIBITS:
|
Exhibit A-1
|
Form of Class A[-1][-2] Certificate
|
|
Exhibit A-2
|
Form of Class M Certificate
|
|
Exhibit A-3
|
Form of Class B Certificate
|
|
Exhibit A-4
|
Form of Class C Certificate
|
|
Exhibit A-5
|
Form of Class R Certificate
|
|
Exhibit B
|
Copy of Certificate Guaranty Insurance Policy
with respect to the Insured Certificates
|
|
Exhibit C
|
Form of Mortgage Loan Purchase
Agreement
|
|
Exhibit D
|
Mortgage Loan Schedule
|
|
Exhibit E
|
Form of Request for Release
|
|
Exhibit F-1
|
Form of Trustee’s Initial
Certification
|
|
Exhibit F-2
|
Form of Trustee’s Final
Certification
|
|
Exhibit F-3
|
Form of Receipt of Mortgage Note
|
|
Exhibit G
|
Form of Interest Rate Swap Agreement
|
|
Exhibit H
|
Form of Lost Note Affidavit
|
|
Exhibit I
|
Form of Certification with respect to ERISA and
the Code
|
|
Exhibit J
|
Form of Investment Letter
|
|
Exhibit K
|
Reserved
|
|
Exhibit L
|
Form of Transferor Certificate
|
|
Exhibit M
|
Form of Class R Certificate Transfer
Affidavit
|
This Pooling and Servicing Agreement
is dated as of September 1, 2005 (the “Agreement”),
among INDYMAC ABS, INC., as depositor (the
“Depositor”), INDYMAC BANK, F.S.B., as seller and
master servicer (the “Seller” and “Master
Servicer”) and DEUTSCHE BANK NATIONAL TRUST COMPANY, as
trustee (the “Trustee”).
PRELIMINARY STATEMENT:
The Depositor intends to sell
pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple
classes, which Certificates in the aggregate will evidence the
entire beneficial ownership interest in the Trust Fund created
hereunder. The Certificates will consist of six classes of
certificates, designated as (i) the Class A-1 Certificates , (ii)
the Class A-2 Certificates, (iii) the Class M Certificates, (iv)
the Class B Certificates, (v) the Class C Certificates and (vi) the
Class R Certificates.
REMIC 1
As provided herein, the Trustee will
make an election to treat the segregated pool of assets consisting
of the Mortgage Loans and certain other related assets subject to
this Agreement (exclusive of the Excess Reserve Fund Account, the
Swap Account and the Interest Rate Swap Agreement) as a real estate
mortgage investment conduit (a “REMIC”) for federal
income tax purposes, and such segregated pool of assets will be
designated as “REMIC 1.” The Class R-1 Interest will
represent the sole class of “residual interests” in
REMIC 1 for purposes of the REMIC Provisions (as defined herein)
under federal income tax law. The following table irrevocably sets
forth the designation, the Uncertificated REMIC 1 Pass-Through
Rate, the initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the REMIC 1 Regular Interests. None of the
REMIC 1 Regular Interests will be certificated.
|
Designation
|
|
Uncertificated REMIC
1
Pass-Through Rate
|
|
Initial
Uncertificated
Principal Balance
|
|
Assumed Final
Maturity Date
(1)
|
|
|
LTA
|
|
Variable (2)
|
|
$
|
7,875,000.00
|
|
October 25, 2010
|
|
|
LTB
|
|
Variable (2)
|
|
$
|
95,000,000.00
|
|
October 25, 2010
|
|
|
LTC
|
|
Variable (2)
|
|
$
|
147,125,000.00
|
|
October 25, 2010
|
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the earlier of (a) October 25, 2010 and
(b) expiration of 21 years from the death of the last survivor of
the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James’s, living on the date
hereof has been designated as the “latest possible maturity
date” for each REMIC 1 Regular Interest.
|
|
(2)
|
Calculated in accordance with the definition of
“Uncertificated REMIC 1 Pass-Through Rate”
herein.
|
REMIC 2
As provided herein, the Trustee
shall make an election to treat the segregated pool of assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be
designated as “REMIC 2.” The Class R-2 Interest
represents the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions.
The following table irrevocably sets
forth the designation, the Uncertificated REMIC 2 Pass-Through
Rate, the initial Uncertificated Principal Balance, and for
purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each of the REMIC 2 Regular Interests. None of the
REMIC 2 Regular Interests will be certificated.
|
Designation
|
|
Uncertificated REMIC
1
Pass-Through Rate
|
|
Initial
Uncertificated
Principal Balance
|
|
Assumed Final
Maturity Date
(1)
|
|
|
LT1AA
|
|
Variable (2)
|
|
$
|
245,000,000.00
|
|
October 25, 2010
|
|
|
LT1A1
|
|
Variable (2)
|
|
$
|
950,000.00
|
|
October 25, 2010
|
|
|
LT1A2
|
|
Variable (2)
|
|
$
|
1,471,250.00
|
|
October 25, 2010
|
|
|
LT1M
|
|
Variable (2)
|
|
$
|
30,000.00
|
|
October 25, 2010
|
|
|
LT1B
|
|
Variable (2)
|
|
$
|
48,750.00
|
|
October 25, 2010
|
|
|
LT1ZZ
|
|
Variable (2)
|
|
$
|
2,500,000.00
|
|
October 25, 2010
|
|
|
LT-Swap-IO
|
|
0.06
|
%
|
|
N/A (3)
|
|
October 25, 2010
|
|
|
LT-Premium-IO
|
|
Variable (5)
|
|
|
N/A (4)
|
|
October 25, 2010
|
|
___________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the earlier of (a) October 25, 2010 and
(b) expiration of 21 years from the death of the last survivor of
the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James’s, living on the date
hereof has been designated as the “latest possible maturity
date” for each Uncertificated REMIC 2 Regular
Interest.
|
|
(2)
|
Calculated in accordance with the definition of
“Uncertificated REMIC 2 Pass-Through Rate”
herein.
|
|
(3)
|
REMIC 2 Regular Interest LT-Swap-IO shall accrue
interest on a notional amount equal to the Uncertificated Balance
of REMIC 1 Regular Interest LTB.
|
|
(4)
|
REMIC 2 Regular Interest LT-Premium-IO shall
accrue interest on a notional amount equal to the Uncertificated
Balance of REMIC 1 Regular Interest LTB and Uncertificated Balance
of REMIC 1 Regular Interest LTC.
|
|
(5)
|
Calculated in accordance with the definition of
Premium Rate.
|
REMIC 3
As provided herein, the Trustee
shall make an election to treat the segregated pool of assets
consisting of the REMIC 2 Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be
designated as “REMIC 3.” The Class R-3 Interest
represents the sole class of “residual interests” in
REMIC 3 for purposes of the REMIC Provisions.
The following table sets forth (or
describes) the Class designation, Pass-Through Rate and initial
Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in
REMIC 3 created hereunder:
|
Designation
|
|
Pass-Through
Rate
|
|
Initial
Certificate
Principal
Balance
|
|
Assumed Final
Maturity Date
(1)
|
|
|
Class A-1
|
|
Variable (2)
|
|
$
|
95,000,000.00
|
|
October 25, 2010
|
|
|
Class A-2
|
|
Variable (2)
|
|
$
|
147,125,000.00
|
|
October 25, 2010
|
|
|
Class M
|
|
Variable (2)
|
|
$
|
3,000,000.00
|
|
October 25, 2010
|
|
|
Class B
|
|
Variable (2)
|
|
$
|
4,875,000.00
|
|
October 25, 2010
|
|
|
Class C
|
|
Variable (3)
|
|
$
|
0.00
|
|
October 25, 2010
|
|
__________________
|
(1)
|
For purposes of Section 1.860G-1(a)(4)(iii) of
the Treasury regulations, the earlier of (a) October 25, 2010 and
(b) expiration of 21 years from the death of the last survivor of
the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James’s, living on the date
hereof has been designated as the “latest possible maturity
date” for each Class of Certificates that represents one or
more of the “regular interests” in REMIC 2.
|
|
(2)
|
Calculated in accordance with the definition of
“Pass-Through Rate” herein.
|
|
(3)
|
The Class C Certificates will accrue interest at
its variable Pass-Through Rate on its uncertificated Notional
Amount outstanding from time to time which shall equal the
aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests. The Class C Certificates will not accrue interest on its
Certificate Principal Balances.
|
As of the Cut-off Date, the Closing
Date Mortgage Loans had an aggregate Stated Principal Balance equal
to $249,987,827.70.
In consideration of the mutual
agreements herein contained, the Depositor, the Master Servicer and
the Trustee agree as follows:
ARTICLE I
DEFINITIONS
|
|
Section 1.01
|
Defined Terms
.
|
Whenever used in this Agreement or
in the Preliminary Statement, the following words and phrases,
unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all
calculations in respect of interest on the Class A Certificates and
the Subordinated Certificates shall be made on the basis of a
360-day year and the actual number of days elapsed, and all other
calculations of interest described herein shall be made on the
basis of a 360-day year consisting of twelve 30-day months. The
Class R Certificates are not entitled to distributions in respect
of interest and, accordingly, will not accrue interest.
“1933 Act”: The
Securities Act of 1933, as amended.
“Account”: Either of the
Collection Account or Distribution Account.
“Accrual Period”: With
respect to the Class A Certificates and the Subordinated
Certificates and each Distribution Date, the period commencing on
the preceding Distribution Date (or in the case of the first such
Accrual Period, commencing on the Closing Date) and ending on the
day preceding the current Distribution Date. With respect to the
Class C Certificates and each Distribution Date, the calendar month
prior to the month of such Distribution Date.
“Accrued Certificate
Interest”: With respect to the Class A Certificates, the
Subordinated Certificates and the Class C Certificates and any
Distribution Date, the amount of interest accrued during the
related Accrual Period at the related Pass-Through Rate on the
Certificate Principal Balance (or Notional Amount in the case of
the Class C Certificates) of such Class immediately prior to such
Distribution Date, in each case, reduced by any Net Interest
Shortfalls allocated to such Class as set forth in Section
1.02.
“Additional Termination
Event”: The additional termination event as defined in the
Interest Rate Swap Agreement.
“Adjustable Rate Mortgage
Loan”: A Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate
payable in respect thereto. The Adjustable Rate Mortgage Loans are
identified as such on the Mortgage Loan Schedule.
“Adjustment Date”: With
respect to each Adjustable Rate Mortgage Loan, each adjustment date
on which the Mortgage Rate of such Mortgage Loans may change
pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-off Date as to each Adjustable Rate Mortgage Loan
is set forth in the Mortgage Loan Schedule.
“Advance”: As to any
Mortgage Loan or REO Property, any advance made by the Master
Servicer in respect of any Distribution Date pursuant to Section
4.03.
“Adverse REMIC Event”:
As defined in Section 9.01 hereof.
“Affiliate”: With
respect to any Person, any other Person controlling, controlled by
or under common control with such Person. For purposes of this
definition, “control” means the power to direct the
management and policies of a Person, directly or indirectly,
whether through ownership of voting securities, by contract or
otherwise, and “controlling” and
“controlled” shall have meanings correlative to the
foregoing.
“Agreement”: This
Pooling and Servicing Agreement and all amendments hereof and
supplements hereto.
“Allocated Realized Loss
Amount”: With respect to any Distribution Date and any Class
of Subordinated Certificates, the sum of (i) the amount of any
Realized Losses allocated to such Class of Certificates on such
Distribution Date pursuant to Section 4.05 (b) and (ii) the amount
of any Allocated Realized Loss Amount for such Class of
Certificates remaining unpaid on the preceding Distribution Date
minus the amount of the increase in the related Certificate
Principal Balance due to the receipt of Subsequent Recoveries as
provided in Section 4.01.
“Applicable
Regulations”: As to any Mortgage Loan, all federal, state and
local laws, statutes, rules and regulations applicable
thereto.
“Assignment”: An
assignment of Mortgage, notice of transfer or equivalent
instrument, in recordable form (excepting therefrom, if applicable,
the mortgage recordation information which has not been required
pursuant to Section 2.01 hereof or returned by the applicable
recorder’s office), which is sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to
reflect of record the sale of the Mortgage.
“Available Funds”: With
respect to any Distribution Date, an amount equal to the excess, if
any, of: (i) the sum of (a) the aggregate of the related Monthly
Payments received on or prior to the related Determination Date,
including any Subsequent Recoveries, (b) Liquidation Proceeds,
Principal Prepayments and other unscheduled recoveries of principal
and interest in respect of the Mortgage Loans during the related
Prepayment Period, (c) the aggregate of any amounts received in
respect of a related REO Property withdrawn from any REO Account
and deposited in the Collection Account for such Distribution Date,
(d) the aggregate of any amounts deposited in the Collection
Account by the Master Servicer in respect of Prepayment Interest
Shortfalls for such Distribution Date, (e) the aggregate of any
Advances made by the Master Servicer for such Distribution Date and
(f) the aggregate of any related advances made by the Trustee for
such Distribution Date pursuant to Section 7.02; over (ii) the sum
of (a) amounts reimbursable or payable to the Master Servicer
pursuant to Section 3.11(a) or Section 3.18 or to the Trustee
pursuant to Section 3.06 or Section 3.11(b), (b) amounts deposited
in the Collection Account or the Distribution Account pursuant to
clauses (i) (a) through (i)(f) above, as the case may be, in error,
(c) the Trustee Fee payable from the Distribution Account pursuant
to Section 4.01(a) and Section 8.05, (d) any indemnification
payments or expense reimbursements made by the Trust Fund pursuant
to Section 8.05 and (e) any Net Swap Payment or any Swap
Termination
Payments owed to the Swap Provider
(after taking into account any upfront payment received by the Swap
Provider from the counterparty to a replacement similar agreement)
(other than Swap Termination Payments resulting from a Swap
Provider Trigger Event).
“Bankruptcy Code”: The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Book-Entry
Certificate”: Any Certificate registered in the name of the
Depository or its nominee.
“Business Day”: Any day
other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of New York, the State of
California or in 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.
“Certificate”: Any
Regular Certificate or Class R Certificate.
“Certificate Factor”:
With respect to any Class of the Regular Certificates (other than
the Class C Certificates) as of any Distribution Date, a fraction,
expressed as a decimal carried to six places, the numerator of
which is the aggregate Certificate Principal Balance of such Class
of Certificates on such Distribution Date (after giving effect to
any distributions of principal and allocations of Realized Losses
in reduction of the Certificate Principal Balance of the
Certificates to be made on such Distribution Date), and the
denominator of which is the initial aggregate Certificate Principal
Balance of such Class of Certificates as of the Closing Date. With
respect to the Class C Certificates as of any Distribution Date, a
fraction, expressed as a decimal carried to six places, the
numerator of which is the aggregate Notional Amount of such Class
of Certificates on such Distribution Date (after giving effect to
reductions thereof to be made on such Distribution Date due to
reductions of the Pool Balance by scheduled principal due during
the related Remittance Period, to the extent received or advanced,
and unscheduled collections of principal received during the
related Prepayment Period), and the denominator of which is the
initial aggregate Notional Amount of such Class of Certificates as
of the Closing Date.
“Certificateholder”: The
Person in whose name a Certificate is registered in the Certificate
Register (except that a Disqualified Organization or non-U.S.
Person shall not be a Holder of a Class R Certificate for any
purpose hereof). Unless otherwise specified herein, whenever
reference is made herein to actions taken by the Trustee on behalf
of the Certificateholders or property held by the Trustee for the
benefit of the Certificateholders, such reference shall be deemed
and construed as a reference to the Trustee acting on behalf of or
for the benefit of the Certificateholders.
“Certificate Insurer”:
Financial Guaranty Insurance Company, a New York stock insurance
corporation or its successors in interest.
“Certificate Insurer
Default”: The existence and continuance of any of the
following: (a) a failure by the Certificate Insurer to make a
payment required under the Policy in accordance with its terms; or
(b) the Certificate Insurer (i) files any petition or commences any
case or proceeding under any provision or chapter of the Bankruptcy
Code or any other similar federal
or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization, (ii)
makes a general assignment for the benefit of its creditors, or
(iii) has an order for relief entered against it under the
Bankruptcy Code or any other similar federal or state law relating
to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or (c) a court of
competent jurisdiction, the New York insurance department or other
competent regulatory authority enters a final and nonappealable
order, judgment or decree (i) appointing a custodian, trustee,
agent or receiver for the Certificate Insurer or for all or any
material portion of its property or (ii) authorizing the taking of
possession by a custodian, trustee, agent or receiver of the
Certificate Insurer (or the taking of possession of all or any
material portion of the property of the Certificate
Insurer).
“Certificate Margin”:
With respect to each Class of Class A Certificates and each Class
of Subordinated Certificates and the Accrual Period for any
Distribution Date, the margin indicated as follows:
|
|
Certificate Margin
(%)
(Accrual Periods for Distribution
Dates up to and including Optional Termination Date)
|
Certificate Margin (%) (Accrual
Periods for Distribution Dates that occur after the Optional
Termination Date)
|
|
Class A-1 Certificates
|
0.22%
|
0.44%
|
|
Class A-2 Certificates
|
0.19%
|
0.38%
|
|
Class M Certificates
|
2.90%
|
4.35%
|
|
Class B Certificates
|
3.00%
|
4.50%
|
Upon the occurrence of any Swap
Default, Swap Early Termination, Termination Event or Additional
Termination Event, the Certificate Margin with respect to the Class
A-2 Certificates will be 0.22% (for the Accrual Period for each
Distribution Date up to and including the Optional Termination
Date) or 0.44% (for the Accrual Period for each Distribution Date
that occurs after the Optional Termination Date).
“Certificate Owner”:
With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate Principal
Balance”: With respect to any Class of Regular Certificates
(other than the Class C Certificates) immediately prior to any
Distribution Date, an amount equal to the initial Certificate
Principal Balance thereof (A) reduced by the sum of all amounts
actually distributed in respect of principal of such Class and (B)
further reduced, in the case of a Subordinated Certificate, by
Realized Losses allocated thereto on all prior Distribution Dates
plus, with respect to the Subordinated Certificates, any increase
in the Certificate Principal Balance of such Certificate due to
receipt of Subsequent Recoveries pursuant to Section 4.01 (or, in
the case of any date of determination up to and including the first
Distribution Date, the initial Certificate Principal Balance of
such Certificate, as stated on the face thereof). With respect to
the Class C Certificates as of any date of determination, an amount
equal to the excess, if any, of (A) the then aggregate
Uncertificated Principal Balances of the REMIC 2 Regular Interests
over (B) the then aggregate Certificate Principal Balances of the
Class A Certificates and the Subordinated Certificates then
outstanding.
“Certificate Register”
and “Certificate Registrar”: The register maintained
and registrar appointed pursuant to Section 5.02 hereof.
“Class”: Collectively,
Certificates which have the same priority of payment and bear the
same class designation and the form of which is identical except
for variation in the Percentage Interest evidenced
thereby.
“Class A Certificate”:
Either of the Class A-1 and Class A-2 Certificates.
“Class A-1 Certificate”:
Any one of the Class A-1 Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-1, and
evidencing (i) a Regular Interest in REMIC 3, (ii) the right to
receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Swap-IO Distribution Amount and any Swap Termination
Payment.
“Class A-1 Principal
Distribution Amount”: With respect to any Distribution Date,
the excess, if any, of (x) the aggregate Certificate Principal
Balance of the Class A-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i)
90.90% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Remittance Period
(after giving effect to scheduled payments of principal due during
the related Remittance Period, to the extent received or advanced,
and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related
Remittance Period (after giving effect to scheduled payments of
principal due during the related Remittance Period, to the extent
received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) minus the
Overcollateralization Floor.
“Class A-2 Certificate”:
Any one of the Class A-2 Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-2, and
evidencing (i) a Regular Interest in REMIC 3, (ii) the right to
receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Swap-IO Distribution Amount and any Swap Termination
Payment.
“Class A-2 Principal
Distribution Amount”: With respect to any Distribution Date,
the excess, if any, of (x) the aggregate Certificate Principal
Balance of the Class A-2 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i)
90.90% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related
Prepayment Period) and (B) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related
Prepayment Period) minus the Overcollateralization
Floor.
“Class A Overcollateralization
Deficiency Amount”: With respect to any Distribution Date,
the excess of (i) the aggregate Certificate Principal Balance of
the Class A Certificates
after giving effect to distributions
of principal to be made on such Distribution Date (without regard
to any payments of principal under the Policy) over (ii) the
aggregate Stated Principal Balance of the Mortgage Loans on the
last day of the immediately preceding Remittance Period (after
giving effect to scheduled payments of principal due during the
related Remittance Period, to the extent received or advanced, and
unscheduled collections of principal received during the related
Prepayment Period).
“Class B Certificate”:
Any one of the Class B Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-3, and
evidencing (i) a Regular Interest in REMIC 3, (ii) the right to
receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Swap-IO Distribution Amount and any Swap Termination
Payment.
“Class B Principal
Distribution Amount”: With respect to any Distribution Date,
the excess, if any, of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on
such Distribution Date), (ii) the Certificate Principal Balance of
the Class M Certificates (after taking into account the payment of
the Class M Principal Distribution Amount on such Distribution
Date), and (iii) the Certificate Principal Balance of the Class B
Certificates immediately prior to such Distribution Date over (y)
the lesser of (A) the product of (i) 97.20% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day
of the related Remittance Period (after giving effect to scheduled
payments of principal due during the related Remittance Period, to
the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of the related Remittance Period (after giving effect
to scheduled payments of principal due during the related
Remittance Period, to the extent received or advanced, and
unscheduled collections of principal received during the related
Prepayment Period) minus the Overcollateralization
Floor.
“Class C Certificate”:
Any one of the Class C Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-4, and
evidencing (i) a Regular Interest in REMIC 3 and (ii) the
obligation to pay the Swap-IO Distribution Amount and any Swap
Termination Payment.
“Class M Certificate”:
Any one of the Class M Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-2, and
evidencing (i) a Regular Interest in REMIC 3, (ii) the right to
receive the Net WAC Rate Carryover Amount and (iii) the obligation
to pay the Swap-IO Distribution Amount and any Swap Termination
Payment.
“Class M Principal
Distribution Amount”: With respect to any Distribution Date,
the excess, if any, of (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class A Certificates (after taking into
account the payment of the Class A Principal Distribution Amount on
such Distribution Date) and (ii) the Certificate Principal Balance
of the Class M Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 93.30% and (ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of the related Remittance Period (after giving effect
to scheduled payments of principal due during the
related Remittance Period, to the
extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) and (B)
the aggregate Stated Principal Balance of the Mortgage Loans as of
the last day of the related Remittance Period (after giving effect
to scheduled payments of principal due during the related
Remittance Period, to the extent received or advanced, and
unscheduled collections of principal received during the related
Prepayment Period) minus the Overcollateralization
Floor.
“Class R Certificate”:
Any one of the Class R Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-5 and
evidencing the ownership of the Class R-1 Interest and the Class
R-2 Interest.
“Class R-1 Interest”:
The uncertificated Residual Interest in REMIC 1.
“Class R-2 Interest”:
The uncertificated Residual Interest in REMIC 2.
“Class R-3 Interest”:
The uncertificated Residual Interest in REMIC 3.
“Swap-IO Distribution
Amount”: As defined in Section 4.07(d) hereof. For purposes
of clarity, the Swap-IO Distribution Amount for any Distribution
Date shall equal the amount payable to the Swap Administrator on
such Distribution Date in excess of the amount payable to the Trust
by the Swap Administrator on such Distribution Date, all as further
provided in Section 4.07 hereof.
“Close of Business”: As
used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing Date”:
September 16, 2005.
“Code”: The Internal
Revenue Code of 1986, as amended.
“Collection Account”:
The account or accounts created and maintained by the Master
Servicer pursuant to Section 3.10(a), which shall be entitled
“Deutsche Bank National Trust Company, as Trustee, in trust
for registered Holders of IndyMac Residential Mortgage-Backed Trust
Certificates, Series 2005-L2,” which must be an Eligible
Account.
“Compensating Interest”:
As defined in Section 3.24 hereof.
“Corporate Trust
Office”: The principal corporate trust office of the Trustee
at which at any particular time its corporate trust business in
connection with this Agreement shall be administered, which office
at the date of the execution of this instrument is located at 1761
East St. Andrew Place, Santa Ana, CA 92705-4934, or at such other
addresses as the Trustee may designate from time to time by notice
to the Certificateholders, the Depositor, the Master Servicer, the
Certificate Insurer and the Seller.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest
and REMIC 3 Regular Interest, as follows:
|
|
|
|
REMIC 1 Regular Interest
LT1A1
|
A-1
|
|
REMIC 1 Regular Interest
LT1A2
|
A-2
|
|
REMIC 1 Regular Interest
LT1M
|
M
|
|
REMIC 1 Regular Interest
LT1B
|
B
|
|
|
C
|
“Credit Enhancement
Percentage”: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (x) the
aggregate Certificate Principal Balance of the Subordinated
Certificates and the Class C Certificates, and the denominator of
which is (y) the aggregate Stated Principal Balance of the Mortgage
Loans, calculated prior to taking into account distributions of
principal on the Mortgage Loans and distribution of the Principal
Distribution Amount to the Holders of the Certificates then
entitled to distributions of principal on such Distribution
Date.
“Custodian”: Deutsche
Bank National Trust Company, as custodian of the Mortgage Files,
and any successor thereto.
“Cut-off Date”: With
respect to each Mortgage Loan, September 1, 2005. With respect to
all Qualified Substitute Mortgage Loans, their respective dates of
substitution. References herein to the “Cut-off Date,”
when used with respect to more than one Mortgage Loan, shall be to
the respective Cut-off Dates for such Mortgage Loans.
“Debt Service
Reduction”: With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for such Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code,
except such a reduction resulting from a Deficient
Valuation.
“Deficiency Amount”:
With respect to any Distribution Date and the Insured Certificates,
an amount, if any, equal to the sum of: (i) the aggregate amount by
which the Accrued Certificate Interest allocable to the Insured
Certificates for such Distribution Date (subject, in the case of
the Class A-2 Certificates, to a cap of the interest accrued on the
Certificate Principal Balance of the Class A-2 Certificates
immediately prior to the related Distribution Date equal to the Net
WAC Rate) exceeds the Interest Remittance Amount available on such
Distribution Date to distribute to the Insured Certificates in
accordance with Section 4.01(a)(ii); and (ii) (a) with respect to
any Distribution Date that is not the Final Distribution Date, the
Class A Overcollateralization Deficiency Amount, if any, for such
Distribution Date and (b) on the Final Distribution Date, the
aggregate Certificate Principal Balance of the Insured Certificates
(after giving effect to all distributions to be made thereon on
such Distribution Date other than any portion thereof consisting of
an Insured Amount payable as principal on the Insured
Certificates).
“Deficient Valuation”:
With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an
amount less than the then outstanding Stated Principal Balance of
the Mortgage Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code.
“Definitive
Certificates”: As defined in Section 5.02(c)
hereof.
“Deleted Mortgage Loan”:
A Mortgage Loan replaced or to be replaced by one or more Qualified
Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage
obtained by dividing (x) the aggregate Stated Principal Balance of
Mortgage Loans 60 days Delinquent or more or that have become REO
Properties by (y) the aggregate Stated Principal Balance of the
Mortgage Loans, in each case, as of the last day of the previous
calendar month.
“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.
“Depositor”: IndyMac
ABS, Inc., a Delaware corporation, or any successor in
interest.
“Depository”: The
initial Depository shall be The Depository Trust Company, whose
nominee is Cede & Co., or any other organization registered as
a “clearing agency” pursuant to Section 17A of the
Securities Exchange Act of 1934, as amended. The Depository shall
initially be the registered Holder of the Book-Entry Certificates.
The Depository shall at all times be a “clearing
corporation” as defined in Section 8-102(5) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”: A broker, dealer, bank or other financial
institution or other person for whom from time to time a Depository
effects book-entry transfers and pledges of securities deposited
with the Depository.
“Determination Date”:
With respect to any Distribution Date, the 15 th day of
the calendar month in which such Distribution Date occurs or, if
such 15 th day is not a Business Day, the Business Day
immediately preceding such 15 th day.
“Directly Operate”: With
respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon
or any use of such REO Property in a trade or business conducted by
the REMIC other than through an Independent Contractor; provided,
however, that the Master Servicer on behalf of the Trustee shall
not be considered to Directly Operate an REO Property solely
because the Master Servicer on behalf of the Trustee establishes
rental terms, chooses tenants, enters into or renews leases, deals
with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization”
under Section 860E of the Code, which as of the Closing Date is any
of: (i) the United States, any state or political subdivision
thereof, any foreign government, any international organization, or
any agency or instrumentality of any of the foregoing, (ii) any
organization (other than a cooperative described
in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code unless such
organization is subject to the tax imposed by Section 511 of the
Code, (iii) any organization described in Section 1381(a)(2)(C) of
the Code, (iv) an “electing large partnership” within
the meaning of Section 775 of the Code or (v) any other Person so
designated by the Depositor based upon an Opinion of Counsel
provided by nationally recognized counsel to the Depositor that the
holding of an ownership interest in a Class R Certificate by such
Person may cause the Trust Fund or any Person having an ownership
interest in any Class of Certificates (other than such Person) to
incur liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the transfer of an ownership
interest in the Class R Certificate to such Person. A corporation
will not be treated as an instrumentality of the United States or
of any state or political subdivision thereof, if all of its
activities are subject to tax and, a majority of its board of
directors is not selected by a governmental unit. The term
“United States”, “state” and
“international organizations” shall have the meanings
set forth in Section 7701 of the Code.
“Distribution Account”:
The trust account or accounts created and maintained by the Trustee
pursuant to Section 3.10(b) which shall be entitled
“Distribution Account, Deutsche Bank National Trust Company,
as Trustee, in trust for registered Holders of IndyMac Residential
Mortgage-Backed Trust Certificates, Series 2005-L2,” and
which must be an Eligible Account.
“Distribution Date”: The
25 th day of each month, or if such 25 th day
is not a Business Day, the Business Day immediately following such
25 th day, commencing in October 2005.
“Due Date”: With respect
to each Mortgage Loan and any Distribution Date, the first day of
the calendar month in which such Distribution Date occurs on which
the Monthly Payment for such Mortgage Loan was due (or, in the case
of any Mortgage Loan under the terms of which the Monthly Payment
for such Mortgage Loan was due on a day other than the first day of
the calendar month in which such Distribution Date occurs, the day
during the related Remittance Period on which such Monthly Payment
was due) exclusive of any days of grace.
“Eligible Account”: Any
of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company, the short-term
unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal
subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated “P-1” by
Moody’s and “A-1” by S&P (or comparable
ratings if Moody’s and S&P are not the Rating Agencies)
at the time any amounts are held on deposit therein, (ii) an
account or accounts the deposits in which are fully insured by the
FDIC (to the limits established by such corporation), the uninsured
deposits in which account are otherwise secured such that, as
evidenced by an Opinion of Counsel delivered to the Trustee and to
each Rating Agency, the Certificateholders will have a claim with
respect to the funds in such account or a perfected first priority
security interest against such collateral (which shall be limited
to Permitted Investments) securing such funds that is superior to
claims of any other depositors or creditors of the depository
institution with which such account is maintained, (iii) a trust
account or accounts maintained with the trust department of a
federal or state chartered depository institution, national banking
association or trust company acting in its fiduciary capacity or
(iv) an account otherwise acceptable to each Rating Agency without
reduction or withdrawal of their then current ratings of any Class
of Certificates (without regard to the Policy) as evidenced by a
letter from each Rating Agency to the Trustee. Eligible Accounts
may bear interest.
“ERISA”: The Employee
Retirement Income Security Act of 1974, as amended.
“Escrow Payments”: The
amounts constituting ground rents, taxes, assessments, water rates,
fire and other payments required to be escrowed by the Mortgagor
with the mortgagee pursuant to any Mortgage Loan.
“Estate in Real
Property”: A fee simple estate in a parcel of real
property.
“Excess Overcollateralization
Amount”: With respect to any Distribution Date, the excess,
if any, of (i) the Overcollateralized Amount for such Distribution
Date (assuming that 100% of the Principal Remittance Amount is
applied as a principal payment on such Distribution Date) over (ii)
the Overcollateralization Target Amount for such Distribution
Date.
“Excess Reserve Fund
Account”: The reserve fund designated, established and
maintained pursuant to Section 3.27.
“Expense Adjusted Maximum
Mortgage Rate”: With respect to any Adjustable Rate Mortgage
Loan, the then applicable Maximum Mortgage Rate thereon minus the
Expense Fee Rate. With respect to any Fixed Rate Mortgage Loan, the
Expense Adjusted Mortgage Rate thereon.
“Expense Adjusted Mortgage
Rate”: With respect to any Mortgage Loan or REO Property, the
then applicable Mortgage Rate thereon minus the Expense Fee
Rate.
“Expense Amount”: For
any Distribution Date, the sum of (i) product of the Expense Fee
Rate and the sum of the Stated Principal Balances of the Mortgage
loans as of the Due Date occurring in the prior calendar month and
(ii) the Premium payable to the Certificate Insurer for that
Distribution Date.
“Expense Fee Rate”: As
to each Mortgage Loan, the sum of the Servicing Fee Rate and the
Trustee Fee Rate.
“Extra Principal Distribution
Amount”: With respect to any Distribution Date through the
Distribution Date in December 2005, zero. With respect to any
Distribution Date on or after the Distribution Date in January
2006, the least of (x) the Total Monthly Excess Spread for such
Distribution Date, and (y) the amount, if any, by which the
Overcollateralization Target Amount for such Distribution Date
exceeds the Overcollateralized Amount for such Distribution Date,
calculated for this purpose without giving effect to the
distribution of the Extra Principal Distribution Amount for such
Distribution Date.
“Fannie Mae”: Fannie Mae
or any successor thereto.
“FDIC”: Federal Deposit
Insurance Corporation or any successor thereto.
“Final Distribution
Date”: The Distribution Date in January 2011.
“Final Recovery
Determination”: With respect to any defaulted Mortgage Loan
or any REO Property (other than a Mortgage Loan or REO Property
purchased by the Seller or the
Master Servicer pursuant to or as
contemplated by Section 2.03, Section 3.16(c) or Section 10.01), a
determination made by the Master Servicer that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries
which the Master Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so
recovered. The Master Servicer shall maintain records, prepared by
a Servicing Officer, of each Final Recovery Determination made
thereby.
“Fixed Rate Mortgage
Loan”: A Mortgage Loan whose Mortgage Rate is fixed for the
life of such Mortgage Loan at the fixed Mortgage Rate set forth in
the related Mortgage Note.
“Fixed Swap Payment”:
With respect to any Swap Payment Date, a fixed amount as set forth
in the Interest Rate Swap Agreement equal to the product of (x) the
Swap Fee Rate, the maximum of which will not exceed 0.06% per
annum, (y) the certificate principal balance of the Class A-2
Certificates on such distribution date and (z) a fraction, the
numerator of which is the actual number of days elapsed from the
previous distribution date to but excluding the current
distribution date (or, for the first distribution date, the number
of days elapsed from the closing date to but excluding the first
distribution date), and the denominator of which is 360.
“Floating Swap Payment”:
With respect to any Swap Payment Date, a floating amount equal to
the product of (x) the excess, if any, of one-month LIBOR (as
determined pursuant to the Interest Rate Swap Agreement) plus the
pass-through margin for the Class A-2 Certificates over the Net WAC
Cap for that distribution date, (y) the certificate principal
balance of the Class A-2 Certificates for that distribution date,
and (z) a fraction, the numerator of which is the actual number of
days elapsed from the previous distribution date to but excluding
the current distribution date (or, for the first distribution date,
the actual number of days elapsed from the closing date to but
excluding the first distribution date), and the denominator of
which is 360.
“Formula Rate”: With
respect to each Class of Class A Certificates (other than the Class
A-2 Certificates, unless a Swap Default, Swap Early Termination,
Termination Event or Additional Termination Event has occurred at
any time during such Interest Accrual Period) and Subordinated
Certificates and any Distribution Date, a per annum rate equal to
the lesser of (i) LIBOR plus the related Certificate Margin and
(ii) the Maximum Cap Rate.
“Freddie Mac”: Freddie
Mac or any successor thereto.
“Gross Margin”: With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage
set forth in the related Mortgage Note that is added on each
Adjustment Date to the Index, in accordance with the terms of the
related Mortgage Note, used to determine the Mortgage Rate for such
Mortgage Loan.
“Highest Priority”: As
of any date of determination, the Class of Subordinated
Certificates then outstanding with a Certificate Principal Balance
greater than zero, with the highest priority for payments pursuant
to Section 4.01, in the following order of decreasing priority:
Class M Certificates and Class B Certificates.
“Holder”: A
Certificateholder.
“Independent”: When used
with respect to any specified Person, any such Person who (a) is in
fact independent of the Depositor, the Master Servicer and their
respective Affiliates, (b) does not have any direct financial
interest in or any material indirect financial interest in the
Depositor or the Master Servicer or any Affiliate thereof, and (c)
is not connected with the Depositor or the Master Servicer or any
Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent
of the Depositor or the Master Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of
any class of securities issued by the Depositor or the Master
Servicer or any Affiliate thereof, as the case may be.
“Independent
Contractor”: Either (i) any Person (other than the Master
Servicer) that would be an “independent contractor”
with respect to any of the REMICs created hereunder within the
meaning of Section 856(d)(3) of the Code if such REMIC were a real
estate investment trust (except that the ownership tests set forth
in that section shall be considered to be met by any Person that
owns, directly or indirectly, 35% or more of any Class of
Certificates), so long as each such REMIC does not receive or
derive any income from such Person and provided that the
relationship between such Person and such REMIC is at arm’s
length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person (including the Master
Servicer), if the Trustee and the Certificate Insurer have received
an Opinion of Counsel to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated
to be taken by an Independent Contractor, will not cause such REO
Property to cease to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section
860D(a) of the Code), or cause any income realized in respect of
such REO Property to fail to qualify as Rents from Real
Property.
“Index”: With respect to
each Adjustable Rate Mortgage Loan and with respect to each related
Adjustment Date, the index as specified in the related Mortgage
Note.
“Insurance Account”: The
account or accounts created and maintained pursuant to Section
4.06, which shall be entitled “Deutsche Bank National Trust
Company, as Trustee, in trust for the registered holders of IndyMac
Residential Mortgage-Backed Trust Certificates, Series
2005-L2.” The Insurance Account must be an Eligible
Account.
“Insurance Agreement”:
The Insurance and Indemnity Agreement, dated as of September 16,
2005, among the Certificate Insurer, the Trustee, the Master
Servicer and the Seller and the Depositor.
“Insurance Proceeds”:
Proceeds of any title policy or other insurance policy covering a
Mortgage Loan, to the extent such proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to
the Mortgagor in accordance with the procedures that the Master
Servicer would follow in servicing mortgage loans held for its own
account, subject to the terms and conditions of the related
Mortgage Note and Mortgage.
“Insured Amount”: With
respect to (i) a Distribution Date, any Deficiency Amount for such
Distribution Date and (ii) any other date, any Preference Amount to
be paid pursuant to the terms of the Policy in respect of the
Insured Certificates on such date.
“Insured Certificates”:
The Class A Certificates.
“Interest Determination
Date”: With respect to each Class of Class A Certificates and
Subordinated Certificates and each Accrual Period, the second LIBOR
Business Day preceding the commencement of such Accrual
Period.
“Interest Rate Swap
Agreement”: The 1992 ISDA Master Agreement
(Multicurrency-Cross Border) dated as of September 16, 2005
(together with the schedule thereto, the Master Agreement) between
Bear Stearns Capital Markets Inc. and the Trustee, an ISDA Credit
Support Annex (Bilateral Form-New York Law) as of the same date,
which supplements, forms part of, and is subject to the Master
Agreement, and a confirmation of the same date, which supplements
and forms part of the Master Agreement, reference
#CXINDY05L2.
“Interest Rate Swap
Provider”: Bear Stearns Capital Markets Inc., or any
successor under the Interest Rate Swap Agreement.
“Interest Rate Swap
Reimbursement Amount”: The “Swap Reimbursement
Amount” as defined in the Interest Rate Swap
Agreement.
“Interest Remittance
Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to
interest received or advanced on the Mortgage Loans or to amounts
in respect of Prepayment Interest Shortfalls paid by the Master
Servicer.
“Late Collections”: With
respect to any Mortgage Loan, all amounts received subsequent to
the Determination Date immediately following any related Remittance
Period, whether as late payments of Monthly Payments or as
Insurance Proceeds, Subsequent Recoveries, Liquidation Proceeds or
otherwise, which represent late payments or collections of
principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but
delinquent on a contractual basis for such Remittance Period and
not previously recovered.
“Late Payment Rate”:
With respect to the Policy, the lesser of (a) the greater of (i)
the per annum rate of interest published in the Wall Street Journal
from time to time as the “prime rate” plus 3%, and (ii)
the then applicable highest rate of interest on the Class A
Certificates and (b) the maximum rate permissible under applicable
usury or similar laws limiting interest rates, as determined by the
Certificate Insurer. The Late Payment Rate shall be computed on the
basis of the actual number of days elapsed over a year of 360
days.
“LIBOR”: With respect to
each Accrual Period for the Class A Certificates and the
Subordinated Certificates, the rate determined by the Trustee on
the related Interest Determination Date on the basis of the London
interbank offered rate for one-month United States dollar deposits,
as such rate appears on the Telerate Page 3750, as of 11:00 a.m.
(London time) on such Interest Determination Date. If such rate
does not appear on Telerate Page 3750,
LIBOR on such Interest Determination
Date will be determined on the basis of the offered rates of the
Reference Banks for one-month United States dollar deposits, as of
11:00 a.m. (London time) on such Interest Determination Date. The
Trustee will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. On such
Interest Determination Date, LIBOR for the related Accrual Period
will be established by the Trustee as follows:
(i) If
on such Interest Determination Date two or more Reference Banks
provide such offered quotations, LIBOR for the related Accrual
Period shall be the arithmetic mean of such offered quotations
(rounded upwards if necessary to the nearest whole multiple of 1/16
of 1%); and
(ii) If
on such Interest Determination Date fewer than two Reference Banks
provide such offered quotations, LIBOR for the related Accrual
Period shall be the arithmetic mean of the rates quoted by major
banks in New York City, selected by the Master Servicer and
approved by the Certificate Insurer, at approximately 11:00 A.M.
(New York City time) on that day for loans in United States dollars
to leading European banks.
“LIBOR Business Day”:
Any day on which dealings in deposits of United States dollars are
transacted in the London interbank market.
“Liquidated Mortgage
Loan”: As to any Distribution Date, any Mortgage Loan in
respect of which the Master Servicer has determined, in accordance
with the servicing procedures and the Servicing Standard specified
herein, as of the end of the related Prepayment Period, that all
Liquidation Proceeds which it expects to recover with respect to
the liquidation of the Mortgage Loan or disposition of the related
REO Property have been recovered.
“Liquidation Event”:
With respect to any Mortgage Loan, any of the following events: (i)
such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made as to such Mortgage Loan; or (iii) such
Mortgage Loan is removed from the Trust Fund by reason of its being
purchased, sold or replaced pursuant to or as contemplated by
Section 2.03, Section 3.16(c) or Section 10.01. With respect to any
REO Property, either of the following events: (i) a Final Recovery
Determination is made as to such REO Property or (ii) such REO
Property is removed from the Trust Fund by reason of its being sold
or purchased pursuant to Section 3.23 or Section 10.01.
“Liquidation Proceeds”:
The amount (other than amounts received in respect of the rental of
any REO Property prior to REO Disposition) received by the Master
Servicer in connection with (i) the taking of all or a part of a
Mortgaged Property by exercise of the power of eminent domain or
condemnation, (ii) the liquidation of a defaulted Mortgage Loan by
means of a trustee’s sale, foreclosure sale or otherwise or
(iii) the repurchase, substitution or sale of a Mortgage Loan or an
REO Property pursuant to or as contemplated by Section 2.03,
Section 3.16(c), Section 3.23 or Section 10.01.
“Loan-to-Value Ratio”:
As of any date and as to any Mortgage Loan, the fraction, expressed
as a percentage, the numerator of which is the Stated Principal
Balance of the Mortgage Loan and the denominator of which is the
Value of the related Mortgaged Property.
“Losses”: As defined in
Section 9.03.
“Lost Note Affidavit”:
With respect to any Mortgage Loan as to which the original Mortgage
Note has been permanently lost or destroyed and has not been
replaced, an affidavit from the Seller certifying that the original
Mortgage Note has been lost, misplaced or destroyed (together with
a copy of the related Mortgage Note and indemnifying the Trust
against any loss, cost or liability resulting from the failure to
deliver the original Mortgage Note) in the form of Exhibit H
hereto.
“Majority
Certificateholders”: The Holders of Certificates evidencing
at least 51% of the Voting Rights.
“Marker Rate”: With
respect to the Class C Certificates and any Distribution Date, a
per annum rate equal to two (2) times the weighted average of the
Uncertificated REMIC 2 Pass-Through Rates for REMIC 2 Regular
Interest LT1A1, REMIC 2 Regular Interest LT1A2, REMIC 2 Regular
Interest LT1M, REMIC 2 Regular Interest LT1B and REMIC 2 Regular
Interest LT1ZZ, with the rate on each such REMIC 2 Regular Interest
(other than REMIC 2 Regular Interest LT1ZZ) subject to a cap equal
to the lesser of (i) LIBOR plus the related Certificate Margin and
(ii) the Net WAC Rate for the purpose of this calculation; and with
the rate on REMIC 2 Regular Interest LT1ZZ subject to a cap of zero
for the purpose of this calculation; provided, however, that for
this purpose, calculations of the Uncertificated REMIC 2
Pass-Through Rate and the related caps with respect to REMIC 2
Regular Interest LT1A1, REMIC 2 Regular Interest LT1A2, REMIC 2
Regular Interest LT1M and REMIC 2 Regular Interest LT1B shall be
multiplied by a fraction, the numerator of which is the actual
number of days in the Accrual Period and the denominator of which
is 30.
“Master Servicer”:
IndyMac Bank, F.S.B., a federal savings bank, or any successor
Master Servicer appointed as herein provided, in its capacity as
Master Servicer hereunder.
“Master Servicer Event of
Termination”: One or more of the events described in Section
7.01.
“Master Servicer Remittance
Date”: With respect to any Distribution Date, the Business
Day prior to such Distribution Date.
“Maximum Cap Rate”: For
any Distribution Date, a per annum rate equal to the weighted
average (weighted based on their Stated Principal Balances as of
the first day of the calendar month preceding the month in which
the distribution date occurs) of the Expense Adjusted Maximum
Mortgage Rates of the Mortgage Loans as of the first day of the
month preceding the month of such Distribution Date minus the sum
of (i) the rate at which the Premium payable to the Certificate
Insurer is calculated on such Distribution Date multiplied by a
fraction the numerator of which is aggregate Certificate Principal
Balance of the Class A Certificates and the denominator of which is
the aggregate Stated Principal Balance of the Mortgage Loans, (ii)
the Swap Fee Rate for such distribution date multiplied by a
fraction, the numerator of which is the Certificate Principal
Balance of the Class A-2 Certificates and the denominator of which
is the aggregate Stated Principal Balance of the Mortgage Loans as
of the first day of the calendar month preceding the month in which
the Distribution Date occurs, and (iii) an amount,
expressed
as a per annum rate, equal to the
Swap Termination Payment not triggered by a Swap Provider Trigger
Event, if any, payable by the Trust multiplied by a fraction, the
numerator of which is 12 and the denominator of which is the
aggregate Stated Principal Balance of the Mortgage Loans as of the
first day of the calendar month preceding the month in which the
Distribution Date occurs.
“Maximum LT1ZZ Uncertificated
Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the
Uncertificated REMIC 2 Pass-Through Rate applicable to REMIC 2
Regular Interest LT1ZZ for such Distribution Date on a balance
equal to the Uncertificated Principal Balance of REMIC 2 Regular
Interest LT1ZZ minus the REMIC 2 Overcollateralized Amount, in each
case for such Distribution Date, over (b) Uncertificated Accrued
Interest on REMIC 2 Regular Interest LT1A1, REMIC 2 Regular
Interest LT1A2, REMIC 2 Regular Interest LT1M and REMIC 2 Regular
Interest LT1B, with the rate on each such REMIC 2 Regular Interest
subject to a cap equal to the lesser of (i) LIBOR plus the related
Certificate Margin and (ii) the Net WAC Rate for the purpose of
this calculation; provided, however, that for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and
the related caps with respect to REMIC 2 Regular Interest LT1A1,
REMIC 2 Regular Interest LT1A2, REMIC 2 Regular Interest LT1M and
REMIC 2 Regular Interest LT1B shall be multiplied by a fraction,
the numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 30.
“Maximum Mortgage Rate”:
With respect to each Adjustable Rate Mortgage Loan, the percentage
set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“Minimum Mortgage Rate”:
With respect to each Adjustable Rate Mortgage Loan, the percentage
set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“Monthly Payment”: With
respect to any Mortgage Loan, the scheduled monthly payment of
principal and interest on such Mortgage Loan which is payable by
the related Mortgagor from time to time under the related Mortgage
Note, determined: (a) after giving effect to (i) any reduction in
such payment due to any Deficient Valuation and/or Debt Service
Reduction with respect to such Mortgage Loan and (ii) any reduction
in the amount of interest collectible from the related Mortgagor
pursuant to the Relief Act; (b) without giving effect to any
extension granted or agreed to by the Master Servicer pursuant to
Section 3.01; and (c) on the assumption that all other amounts, if
any, due under such Mortgage Loan are paid when due.
“Moody’s”:
Moody’s Investors Service, Inc., or its successor in
interest.
“Mortgage”: The
mortgage, deed of trust or other instrument creating a first lien
on, or first priority security interest in, a Mortgaged 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 required to
be added to the Mortgage File pursuant to this
Agreement.
“Mortgage Loan”: Each
mortgage loan transferred and assigned to the Trustee pursuant to
Section 2.01 or Section 2.03(d) as from time to time held as a part
of the Trust Fund, the Mortgage Loans so held being identified in
the Mortgage Loan Schedule.
“Mortgage Loan Purchase
Agreement”: The agreement between the Seller and the
Depositor, regarding the transfer of the Mortgage Loans by the
Seller to or at the direction of the Depositor, substantially in
the form attached hereto as Exhibit C.
“Mortgage Loan
Schedule”: As of any date, the list of Mortgage Loans
included in the Trust Fund on such date, attached hereto as Exhibit
D, as initially prepared by the Seller pursuant to the Mortgage
Loan Purchase Agreement. The Mortgage Loan Schedule shall set forth
the following information with respect to each Mortgage Loan, as
applicable:
|
(1)
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the Mortgage Loan identifying
number;
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|
(2)
|
[reserved];
|
|
(3)
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the state and zip code of the
Mortgaged Property;
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(4)
|
the original months to
maturity;
|
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(5)
|
the stated remaining months to
maturity from the Cut-off Date based on the original amortization
schedule;
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(6)
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the Loan-to-Value Ratio at
origination;
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(7)
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the Mortgage Rate in effect
immediately following the Cut-off Date;
|
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(8)
|
the date on which the first Monthly
Payment was due on the Mortgage Loan;
|
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(9)
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the stated maturity date;
|
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(10)
|
the amount of the Monthly Payment at
origination;
|
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(11)
|
the amount of the Monthly Payment
due on the first Due Date after the Cut-off Date;
|
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(12)
|
the last Due Date on which a Monthly
Payment was actually applied to the unpaid Stated Principal
Balance;
|
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(13)
|
the original principal amount of the
Mortgage Loan;
|
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(14)
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the Stated Principal Balance of the
Mortgage Loan as of the Close of Business on the Cut-off
Date;
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(15)
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a code indicating the purpose of the
Mortgage Loan (i.e., purchase financing, rate/term refinancing,
cash-out refinancing);
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(16)
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the Mortgage Rate at
origination;
|
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(17)
|
a code indicating the documentation
program (i.e., full/alternate documentation, reduced documentation
or no ratio);
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(18)
|
the Value of the Mortgaged
Property;
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(19)
|
the sale price of the Mortgaged
Property, if applicable;
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(20)
|
the actual unpaid Stated Principal
Balance of the Mortgage Loan as of the Cut-off Date;
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(21)
|
a code indicating the lien priority
for the Mortgage Loan; and
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(22)
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in the case of each Adjustable Rate
Mortgage Loan, the Minimum Mortgage Rate, the Maximum Mortgage
Rate, the Gross Margin, the next Adjustment Date and the Periodic
Rate Cap.
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The Mortgage Loan Schedule shall set
forth the following information, with respect to the Mortgage Loans
in the aggregate as of the Cut-off Date: (1) the number of Mortgage
Loans; (2) the current Stated Principal Balance of the Mortgage
Loans; (3) the weighted average Mortgage Rate of the Mortgage
Loans; and (4) the weighted average maturity of the Mortgage Loans.
The Mortgage Loan Schedule shall be amended from time to time by
the Master Servicer in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan,
Cut-off Date shall refer to the related Cut-off Date for such
Mortgage Loan, determined in accordance with the definition of
Cut-off Date herein.
“Mortgage Note”: The
original executed note or other evidence of the indebtedness of a
Mortgagor under a Mortgage Loan.
“Mortgage Pool”: The
pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage Rate”: With
respect to each Mortgage Loan, the annual rate at which interest
accrues on such Mortgage Loan from time to time in accordance with
the provisions of the related Mortgage Note, which rate in the case
of each Fixed Rate Mortgage Loan is the fixed rate set forth in the
related Mortgage Note, and which rate in the case of each
Adjustable Rate Mortgage Loan (A) as of any date of determination
until the first Adjustment Date following the Cut-off Date shall be
the rate set forth in the Mortgage Loan Schedule as the Mortgage
Rate in effect immediately following the Cut-off Date and (B) as of
any date of determination thereafter shall be the rate as adjusted
on the most recent Adjustment Date, to equal the sum (rounded as
provided in the Mortgage Note and as specified by the Master
Servicer) of the Index, determined as set forth in the related
Mortgage Note, plus the related Gross Margin, subject to the
limitations set forth in the related Mortgage Note. With respect to
each Mortgage Loan that becomes an REO Property, as of any date of
determination, the annual rate determined in accordance with the
immediately preceding sentence as of the date such Mortgage Loan
became an REO Property.
“Mortgaged Property”:
The underlying property securing a Mortgage Loan, including any REO
Property, consisting of an Estate in Real Property.
“Mortgagor”: The obligor
on a Mortgage Note.
“Net Interest
Shortfalls”: As defined in Section 1.02.
“Net Liquidation
Proceeds”: With respect to any Liquidated Mortgage Loan or
any other disposition of the related Mortgaged Property (including
any REO Property), the related Liquidation Proceeds net of
Advances, Servicing Advances, Servicing Fees and any other accrued
and unpaid servicing fees received and retained in connection with
the liquidation of such Mortgage Loan or Mortgaged
Property.
“Net Mortgage Rate”:
With respect to any Mortgage Loan (or the related REO Property), as
of any date of determination, a per annum rate of interest equal to
the then applicable Mortgage Rate for such Mortgage Loan minus the
Servicing Fee Rate and the Trustee Fee Rate.
“Net Prepayment Interest
Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date
over the related Compensating Interest.
“Net Swap Payment”: In
the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in
the case of payments made by the Interest Rate Swap Provider, the
excess, if any, of (x) the Floating Swap Payment over (y) the Fixed
Swap Payment. In each case, the Net Swap Payment shall not be less
than zero.
“Net WAC Rate”: With
respect to any Distribution Date and the Regular Certificates, a
per annum rate equal to weighted average (weighted based on their
Stated Principal Balances as of the first day of the calendar month
preceding the month in which the Distribution Date occurs) of the
Net Mortgage Rates on the Mortgage Loans as of the first day of the
calendar month preceding the month in which the Distribution Date
occurs minus the sum of (i) the rate at which the Premium payable
to the Certificate Insurer is calculated on such Distribution Date
multiplied by a fraction the numerator of which is the aggregate
Certificate Principal Balance of the Class A Certificates and the
denominator of which is the aggregate Stated Principal Balance of
the Mortgage Loans, (ii) the Swap Fee Rate for such Distribution
Date multiplied by a fraction, the numerator of which is
Certificate Principal Balance of the Class A-2 Certificates and the
denominator of which is the aggregate Stated Principal Balance of
the Mortgage Loans as of the first day of the calendar month
preceding the month in which the Distribution Date occurs, and
(iii) an amount, expressed as a per annum rate, equal to the Swap
Termination Payment, if any, payable by the Trust multiplied by a
fraction, the numerator of which is 12 and the denominator of which
is the aggregate Stated Principal Balance of the Mortgage Loans as
of the first day of the calendar month preceding the month in which
the Distribution Date occurs. For federal income tax purposes, for
any Distribution Date with respect to the REMIC 3 Regular Interests
the ownership of which is represented by the Class A, Class M or
Class B Certificates, the Net WAC Rate shall be expressed as the
weighted average (adjusted for the actual number of days elapsed in
the related Interest Accrual Period) of the Uncertificated REMIC 2
Pass-Through
Rates on the REMIC 2 Regular
Interests, weighted on the basis of the Uncertificated Balance of
such REMIC 2 Regular Interest.
“Net WAC Rate Carryover
Amount”: With respect to the Class A, Class M and Class B
Certificates and any Distribution Date, the sum of (A) the positive
excess, if any, of (i) the amount of interest that would have
accrued on such Class of Certificates for such Distribution Date if
the Pass-Through Rate for such Class of Certificates for such
Distribution Date were calculated at the related Formula Rate over
(ii) the amount of interest accrued on such Class of Certificates
at the Net WAC Rate for such Distribution Date and (B) the related
Net WAC Rate Carryover Amount for the previous Distribution Date
not previously paid, together with interest thereon for the most
recently ended related Accrual Period at a rate equal to the
related Formula Rate for such Class of Certificates for such
Distribution Date.
“New Lease”: Any lease
of REO Property entered into on behalf of the Trust, including any
lease renewed or extended on behalf of the Trust if the Trust has
the right to renegotiate the terms of such lease.
“Nonrecoverable
Advance”: Any Advance previously made in respect of a
Mortgage Loan or REO Property that, in the good faith business
judgment of the Master Servicer, will not be ultimately recoverable
from Late Collections, Insurance Proceeds or Liquidation Proceeds
on such Mortgage Loan or REO Property as provided
herein.
“Notional Amount”:
Immediately prior to any Distribution Date, with respect to REMIC 3
Regular Interest C, the aggregate Uncertificated Principal Balances
of the REMIC 2 Regular Interests.
“Officers’
Certificate”: A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a vice
president (however denominated), the Treasurer, the Secretary, or
one of the assistant treasurers or assistant secretaries of the
Master Servicer, the Seller or the Depositor, as
applicable.
“Opinion of Counsel”: A
written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor or the Master Servicer,
acceptable to the Trustee and the Certificate Insurer, except that
any opinion of counsel relating to (a) the qualification of any
REMIC as a REMIC or (b) compliance with the REMIC Provisions which
must be an opinion of Independent counsel.
“Optional Termination
Date”: The earliest Distribution Date on which the Terminator
would be permitted to exercise its option to terminate the Trust
pursuant to Section 10.01.
“Overcollateralization
Floor”: With respect to any Distribution Date, an amount
equal to 0.50% of the sum of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date.
“Overcollateralization Target
Amount”: With respect to any Distribution Date (i) prior to
January 2006, 0%, (ii) beginning in January 2006 and prior to the
Stepdown Date, 1.40% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-off Date, (iii) on or after the
Stepdown Date provided a Trigger Event is not in effect, the
greater of (x) 2.80% of the
aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Remittance
Period (after giving effect to scheduled payments of principal due
during the related Remittance Period, to the extent received or
advanced, and unscheduled collections of principal received during
the related Prepayment Period) and (y) the Overcollateralization
Floor, and (iv) on or after the Stepdown Date and if a Trigger
Event is in effect, the Overcollateralization Target Amount for the
immediately preceding Distribution Date. Notwithstanding the
foregoing, on and after any Distribution Date following the
reduction of the aggregate Certificate Principal Balance of the
Class A, Class M and Class B Certificates to zero, the
Overcollateralization Target Amount shall be zero.
“Overcollateralized
Amount”: With respect to any Distribution Date, the amount,
if any, by which (i) the aggregate Stated Principal Balance of the
Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Remittance Period, to the extent
received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) exceeds (ii) the
aggregate Certificate Principal Balance of the Class A Certificates
and the Subordinated Certificates as of such Distribution Date
after giving effect to distributions to be made on such
Distribution Date.
“Ownership Interest”: As
to any Certificate, any ownership or security interest in such
Certificate, including any interest in such Certificate as the
Holder thereof and any other interest therein, whether direct or
indirect, legal or beneficial, as owner or as pledgee.
“Pass-Through Rate”:
With respect to the Class A Certificates (other than the Class A-2
Certificates, unless a Swap Default, Swap Early Termination,
Termination Event or Additional Termination Event has occurred at
any time during such Accrual Period) and each Class of the
Subordinated Certificates and any Distribution Date, the lesser of
(x) the related Formula Rate for such Distribution Date and (y) the
Net WAC Rate for such Distribution Date. With respect to the Class
A-2 Certificates (so long as no Swap Default, Swap Early
Termination, Termination Event or Additional Termination Event has
occurred at any time during such Accrual Period) and any
Distribution Date, LIBOR plus the related Certificate Margin. For
Federal income tax purposes, the Pass-Through Rate for the Class A
Certificates and any Distribution Date will be the lesser of (x)
the related Formula Rate for such Distribution Date and (y) the
weighted average of the Uncertificated REMIC 2 Pass-Through Rates.
REMIC 2 Remittance Rates. With respect to the Class C Certificates
and any Distribution Date, a per annum rate equal to the percentage
equivalent of a fraction, the numerator of which is the sum of the
amounts calculated pursuant to clauses (a) through (f) below, and
the denominator of which is the aggregate of the Uncertificated
Principal Balances of REMIC 2 Regular Interest LT1AA, REMIC 2
Regular Interest LT1A1, REMIC 2 Regular Interest LT1A2, REMIC 2
Regular Interest LT1M, REMIC 2 Regular Interest LT1B and REMIC 2
Regular Interest LT1ZZ. For purposes of calculating the
Pass-Through Rate for the Class C Certificates, the numerator is
equal to the sum of the following components:
(a) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular
Interest LT1AA minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 2 Regular Interest
LT1AA;
(b) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular
Interest LT1A1 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 2 Regular Interest
LT1A1;
(c) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular
Interest LT1A2 minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 2 Regular Interest
LT1A2;
(d) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular
Interest LT1M minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 2 Regular Interest
LT1M;
(e) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular
Interest LT1B minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 2 Regular Interest
LT1B; and
(f) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular
Interest LT1ZZ minus the Marker Rate, applied to an amount equal to
the Uncertificated Principal Balance of REMIC 2 Regular Interest
LT1ZZ.
“Paying Agent”: Any
paying agent appointed pursuant to Section 5.05.
“Percentage Interest”:
With respect to any Certificate (other than a Class R Certificate),
a fraction, expressed as a percentage, the numerator of which is
the initial Certificate Principal Balance or initial Notional
Amount represented by such Certificate and the denominator of which
is the aggregate initial Certificate Principal Balance or aggregate
initial Notional Amount of the related Class. With respect to a
Class R Certificate, the portion of the Class evidenced thereby,
expressed as a percentage, as stated on the face of such
Certificate; provided , however , that the sum of all
such percentages for such Class totals 100%.
“Periodic Rate Cap”:
With respect to each Adjustable Rate Mortgage Loan and any
Adjustment Date therefor, the fixed percentage set forth in the
related Mortgage Note, which is the maximum amount by which the
Mortgage Rate for such Mortgage Loan may increase or decrease
(without regard to the Maximum Mortgage Rate or the Minimum
Mortgage Rate) on such Adjustment Date from the Mortgage Rate in
effect immediately prior to such Adjustment Date.
“Permitted Investments”:
Any one or more of the following obligations or securities acquired
at a purchase price of not greater than par, regardless of whether
issued or managed by the Depositor, the Master Servicer, the
Trustee or any of their respective Affiliates or for which an
Affiliate of the Trustee serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided such obligations are
backed by the full faith and credit of the United
States;
(ii) (A)
demand and time deposits in, certificates of deposit of,
bankers’ acceptances issued by or federal funds sold by any
depository institution or trust company (including the Trustee or
its agent acting in their respective commercial capacities)
incorporated under the laws of the United States of America or any
state thereof and subject to supervision and examination by federal
and/or state authorities; and (B) any other demand or time deposit
or deposit which is fully insured by the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any
security described in clause (i) above and entered into with a
depository institution or trust company (acting as principal) rated
“A2” or higher by Moody’s and “A” by
S&P; provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause
(i) above and must (A) be valued daily at current market prices
plus accrued interest, (B) pursuant to such valuation, be equal, at
all times, to 105% of the cash transferred by the Trustee in
exchange for such collateral and (C) be delivered to the Trustee
or, if the Trustee is supplying the collateral, an agent for the
Trustee, in such a manner as to accomplish perfection of a security
interest in the collateral by possession of certificated
securities;
(iv) securities
bearing interest or sold at a discount that are issued by any
corporation incorporated under the laws of the United States of
America or any State thereof and that are rated by a Rating Agency
in its highest long-term unsecured rating category at the time of
such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified
date not more than 30 days after the date of acquisition thereof)
that is rated by a Rating Agency in its highest short-term
unsecured debt rating available at the time of such
investment;
(vi) units
of money market funds that have been rated “Aaa” by
Moody’s and “AAA” by S&P, including any such
funds that may be managed or co-advised by the Trustee or an
Affiliate of the Trustee; and
(vii) if
previously confirmed in writing to the Trustee, any other demand,
money market or time deposit, or any other obligation, security or
investment, as may be acceptable to the Rating Agencies in writing
as a permitted investment of funds backing securities having
ratings of “Aaa” by Moody’s and “AAA”
by S&P;
provided, however, that no
instrument described hereunder shall evidence either the right to
receive (a) only interest with respect to the obligations
underlying such instrument or (b) both principal and interest
payments derived from obligations underlying such instrument and
the interest and principal payments with respect to such instrument
provide a yield to maturity at par greater than 120% of the yield
to maturity at par of the underlying obligations. Furthermore, any
Permitted Investment shall be relatively risk free and no options
or voting rights shall be exercised with respect to any Permitted
Investment and no Permitted Investment may be sold or disposed of
before its maturity.
“Permitted Transferee”:
Any transferee of a Class R Certificate, other than a Disqualified
Organization or a non-U.S. Person.
“Person”: Any
individual, corporation, limited liability company, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
“Plan”: Any employee
benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Keogh plans
and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements
are invested, that are subject to ERISA or Section 4975 of the
Code.
“Policy”: The
Certificate Guaranty Insurance Policy No. 05030094 issued by the
Certificate Insurer in respect of the Insured Certificates, a copy
of which is attached hereto as Exhibit B.
“Pool Balance”: As of
any date of determination, the aggregate Stated Principal Balance
of the Mortgage Loans as of such date.
“Premium”: The premium
payable to the Certificate Insurer under the Policy.
“Premium Rate”: A rate,
expressed as a per annum rate, equal to the Premium divided by the
sum of the Uncertificated Principal Balances of REMIC 1 Regular
Interest LTB and REMIC 1 Regular Interest LTC.
“Prepayment Assumption”:
A prepayment rate for the Mortgage Loans of 25% of the constant
prepayment rate assumption (which represents an assumed annualized
rate of prepayment relative to the then-outstanding balance of a
pool of new mortgage loans).
“Prepayment Charge”:
With respect to any Mortgage Loan, the charges or premiums, if any,
due in connection with a full or partial prepayment of such
Mortgage Loan in accordance with the terms thereof.
“Prepayment Interest
Excess”: With respect to any Distribution Date, for each
Mortgage Loan that was the subject of a Principal Prepayment in
full during the portion of the related Prepayment Period occurring
between the first day and the Determination Date of the calendar
month in which such Distribution Date occurs, an amount equal to
interest at the applicable Net Mortgage Rate on the amount of such
Principal Prepayment for the number of days commencing on the first
day of the calendar month in which such Distribution Date occurs
and ending on the date on which such prepayment is so
applied.
“Prepayment Interest
Shortfall”: With respect to any Distribution Date, for each
Mortgage Loan that was the subject of a Principal Prepayment in
full during the portion of the related Prepayment Period occurring
between the first day of the related Prepayment Period and the last
day of the calendar month preceding the month in which such
Distribution Date occurs, an amount equal to one month’s
interest on the Mortgage Loan less any interest payments made by
the Mortgagor. The obligations of the Master Servicer in respect of
any Prepayment Interest Shortfall are set forth in Section
3.24.
“Prepayment Period”:
With respect to any Distribution Date, the period commencing on the
day after the Determination Date in the calendar month preceding
the calendar month in which such Distribution Date occurs (or, in
the case of the first Distribution Date, commencing on the Cut-Off
Date) and ending on the Determination Date of the calendar month in
which such Distribution Date occurs.
“Principal Balance”: As
to any Mortgage Loan other than a Liquidated Mortgage Loan and any
date of determination, the related Cut-off Date Principal Balance,
minus all collections credited against the Cut-off Date Principal
Balance of any such Mortgage Loan. For purposes of this definition,
a Liquidated Mortgage Loan shall be deemed to have a Principal
Balance equal to the Principal Balance of the related Mortgage Loan
as of the final recovery of related Liquidation Proceeds and a
Principal Balance of zero thereafter. As to any REO Property and
any date of determination, the Principal Balance of the related
Mortgage Loan immediately prior to such Mortgage Loan becoming REO
Property minus any REO Principal Amortization received with respect
thereto on or prior to such day.
“Principal Distribution
Amount”: With respect to any Distribution Date, an amount
equal to the sum of (a) the excess of the Principal Remittance
Amount over the Excess Overcollateralization Amount, if any, for
such Distribution Date plus (b) the Extra Principal Distribution
Amount.
“Principal Prepayment”:
Any payment of principal made by the Mortgagor on a Mortgage Loan
which is received in advance of its scheduled Due Date and which is
not accompanied by an amount of interest representing the full
amount of scheduled interest due on any Due Date in any month or
months subsequent to the month of prepayment.
“Principal Remittance
Amount”: With respect to any Distribution Date, the sum of
(i) each scheduled payment of principal collected or advanced on
the Mortgage Loans by the Master Servicer that was due during the
related Remittance Period, (ii) the principal portion of all
partial and full Principal Prepayments of the Mortgage Loans
applied by the Master Servicer during the related Prepayment
Period, (iii) the principal portion of all related Net Liquidation
Proceeds, Subsequent Recoveries and Insurance Proceeds received
during such Prepayment Period, (iv) that portion of the Purchase
Price, representing principal of any purchased or repurchased
Mortgage Loan, deposited to the Collection Account during such
Prepayment Period, (v) the principal portion of any related
Substitution Adjustments deposited in the Collection Account during
such Prepayment Period and (vi) on the Distribution Date on which
the Trust Fund is to be terminated pursuant to Section 10.01, that
portion of the Termination Price, in respect of
principal.
“Private Certificate”:
Any of the Class B, Class C and Class R Certificates.
“Purchase Price”: With
respect to any Mortgage Loan or REO Property to be purchased
pursuant to or as contemplated by Section 2.03, Section 3.16(c) or
Section 10.01, and as confirmed by an Officers’ Certificate
from the Master Servicer to the Trustee, an amount equal to the sum
of (i) 100% of the Stated Principal Balance thereof as of the date
of purchase (or such other price as provided in Section 10.01),
(ii) in the case of (x) a Mortgage Loan, accrued interest on such
Stated Principal Balance at the applicable Mortgage Rate in effect
from time to time
from the Due Date as to which
interest was last covered by a payment by the Mortgagor or an
advance by the Master Servicer, which payment or advance had as of
the date of purchase been distributed pursuant to Section 4.01,
through the end of the calendar month in which the purchase is to
be effected, and (y) an REO Property, the sum of (1) accrued
interest on such Stated Principal Balance at the applicable
Mortgage Rate in effect from time to time from the Due Date as to
which interest was last covered by a payment by the Mortgagor or an
advance by the Master Servicer through the end of the calendar
month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO
Property for each calendar month commencing with the calendar month
in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the
total of all Insurance Proceeds, Liquidation Proceeds and Advances
that as of the date of purchase had been distributed as or to cover
REO Imputed Interest pursuant to Section 4.03, (iii) any
unreimbursed Servicing Advances and Advances and any unpaid
Servicing Fees allocable to such Mortgage Loan or REO Property,
(iv) any amounts previously withdrawn from the Collection Account
in respect of such Mortgage Loan or REO Property pursuant to
Section 3.23, and (v) in the case of a Mortgage Loan required to be
purchased pursuant to Section 2.03, expenses reasonably incurred or
to be incurred by the Master Servicer, the Certificate Insurer or
the Trustee in respect of the breach or defect giving rise to the
purchase obligation, including any costs and damages incurred by
the Trust Fund in connection with any violation by such loan of any
predatory or abusive lending law.
“Qualified Insurer”: Any
insurance company acceptable to Fannie Mae and/or Freddie
Mac.
“Qualified Substitute Mortgage
Loan”: A mortgage loan substituted for a Deleted Mortgage
Loan pursuant to the terms of this Agreement or the Mortgage Loan
Purchase Agreement which must, on the date of such substitution,
(i) have an outstanding Stated Principal Balance (or in the case of
a substitution of more than one mortgage loan for a Deleted
Mortgage Loan, an aggregate Stated Principal Balance), after
application of all scheduled payments of principal and interest due
during or prior to the month of substitution, not in excess of, and
not more than 5% less than, the outstanding Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a
Mortgage Rate not less than (and not more than one percentage point
in excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii)
if the Deleted Mortgage Loan is an Adjustable Rate Mortgage Loan,
have a Maximum Mortgage Rate not less than the Maximum Mortgage
Rate on the Deleted Mortgage Loan, (iv) if the Deleted Mortgage
Loan is an Adjustable Rate Mortgage Loan, have a Minimum Mortgage
Rate not less than the Minimum Mortgage Rate of the Deleted
Mortgage Loan, (v) if the Deleted Mortgage Loan is an Adjustable
Rate Mortgage Loan, have a Gross Margin equal to or greater than
the Gross Margin of the Deleted Mortgage Loan, (vi) if the Deleted
Mortgage Loan is an Adjustable Rate Mortgage Loan, have a next
Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a
remaining term to maturity not greater than (and not more than one
year less than) that of the Deleted Mortgage Loan, (viii) be
current as of the date of substitution, (ix) have a Loan-to-Value
Ratio as of the date of substitution equal to or lower than the
Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date,
(x) [reserved], (xi) have the same Due Date as that of the Deleted
Mortgage Loan and (xii) conform to each representation and warranty
set forth in Section 3.01 of the Mortgage Loan Purchase Agreement
applicable to the Deleted Mortgage
Loan. In the event that one or more
mortgage loans are substituted for one or more Deleted Mortgage
Loans, the amounts described in clause (i) hereof shall be
determined on the basis of aggregate Stated Principal Balances, the
Mortgage Rates described in clauses (ii) through (vi) hereof shall
be satisfied for each such mortgage loan, the risk gradings
described in clause (x) hereof shall be satisfied as to each such
mortgage loan, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to
maturity (provided that no such mortgage loan may have a remaining
term to maturity longer than the Deleted Mortgage Loan), the
Loan-to-Value Ratios described in clause (ix) hereof shall be
satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and
warranties described in clause (xii) hereof must be satisfied as to
each Qualified Substitute Mortgage Loan or in the aggregate, as the
case may be.
“Rating Agency”:
Moody’s and S&P or its successor, in its capacity as
rating agency that has assigned ratings to the Class A Certificates
and the Subordinated Certificates. If such agency or its successor
is no longer in existence, “Rating Agency” shall be
such nationally recognized statistical rating agencies, or other
comparable Persons, designated by the Depositor (and if rating the
Insured Certificates, consented to in writing by the Certificate
Insurer), notice of which designation shall be given to the Trustee
and Master Servicer.
“Realized Loss”: With
respect to any Liquidated Mortgage Loan, the amount of loss
realized equal to the portion of the Stated Principal Balance
remaining unpaid after application of all Net Liquidation Proceeds
in respect of such Mortgage Loan. If 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 to the extent such recoveries are applied to principal
distributions on any Distribution Date.
“Record Date”: With
respect to each Distribution Date and the Class A Certificates and
the Subordinated Certificates (other than any such Certificates
that are Definitive Certificates), the Business Day immediately
preceding such Distribution Date. With respect to each Distribution
Date and the Class C Certificates, the Class R Certificates and any
Definitive Certificates, the last Business Day of the month
immediately preceding the month in which such Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing
Date).
“Reference Banks”: Those
banks (i) with an established place of business in London, England,
(ii) not controlling, under the control of or under common control
with the Depositor, the Seller or the Master Servicer or any
affiliate thereof and (iii) which have been designated as such by
the Depositor; provided, however, that if fewer than two of such
banks provide a LIBOR rate, then the term “Reference
Banks” shall refer to any leading banks selected by the
Depositor which are engaged in transactions in United States dollar
deposits in the international Eurocurrency market.
“Refinance Loan”: Any
Mortgage Loan the proceeds of which are used to refinance an
existing Mortgage Loan.
“Regular Certificates”:
Any of the Class A Certificates, the Subordinated Certificates and
the Class C Certificates.
“Reimbursement Amount”:
As to any Distribution Date, the sum of (x) (i) all Insured
Payments paid by the Certificate Insurer, but for which the
Certificate Insurer has not been reimbursed prior to such
Distribution Date pursuant to Section 4.01, plus (ii) interest
accrued on such Insured Payments not previously repaid, calculated
at the Late Payment Rate from the date the Trustee received the
related Insured Payments or the date such Insured Payments were
made, and (y) without duplication (i) any amounts then due and
owing to the Certificate Insurer under the Insurance Agreement, as
certified to the Trustee by the Certificate Insurer plus (ii)
interest on such amounts at the Late Payment Rate.
“Relief Act”: The
Servicemembers Civil Relief Act.
“Relief Act Interest
Shortfall”: With respect to any Distribution Date, for any
Mortgage Loan with respect to which there has been a reduction in
the amount of interest collectible thereon for the most recently
ended Remittance Period or (without duplication) any earlier
Remittance Period as a result of the application of the Relief Act
or any similar state laws, the amount by which (i) interest
collectible on such Mortgage Loan during each such Remittance
Period is less than (ii) one month’s interest on the Stated
Principal Balance of such Mortgage Loan at the Mortgage Rate for
such Mortgage Loan before giving effect to the application of the
Relief Act or any similar state laws.
“REMIC”: A “real
estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
“REMIC 1 Regular
Interests”: REMIC 1 Regular Interest LTA, REMIC 1 Regular
Interest LTB and REMIC 2 Regular Interest LTC.
“REMIC 2”: The
segregated pool of assets consisting of all of the REMIC 1 Regular
Interests conveyed in trust to the Trustee, for the benefit of the
Holders of the REMIC 2 Regular Interests and the Class R
Certificate (in respect of the Class R-2 Interest), pursuant to
Article II hereunder, and all amounts deposited therein, with
respect to which a separate REMIC election is to be
made.
“REMIC 2 Regular
Interest”: Any of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
“regular interest” in REMIC 2. Each REMIC 2 Regular
Interest shall accrue interest at the related Uncertificated REMIC
2 Pass-Through Rate in effect from time to time, and shall be
entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated Balance as set forth in the Preliminary Statement
hereto. The following is a list of each of the REMIC 2 Regular
Interests: REMIC 2 Regular Interest LT1AA, REMIC 2 Regular Interest
LT1A1, REMIC 2 Regular Interest LT1A2, REMIC 2 Regular Interest
LT1M, REMIC 2 Regular Interest LT1B, REMIC 2 Regular Interest
LT1ZZ, REMIC 2 Regular Interest LT-Premium-IO and REMIC 2 Regular
Interest LT-Swap-IO.
“REMIC 2 Regular Interest
LT1AA”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT1AA shall
accrue interest at the related Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of
principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto.
“REMIC 2 Regular Interest
LT1A1”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT1A1 shall
accrue interest at the related Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
“REMIC 2 Regular Interest
LT1A2”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT1A2 shall
accrue interest at the related Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
“REMIC 2 Regular Interest
LT1B”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT1B shall
accrue interest at the related Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
“REMIC 2 Regular Interest
LT1M”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT1M shall
accrue interest at the related Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
“REMIC 2 Regular Interest
LT1ZZ”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT1ZZ shall
accrue interest at the related Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement
hereto.
“REMIC 2 Regular Interest
LT-Premium-IO”: One of the separate non-certificated
beneficial ownership interests in REMIC 2 issued hereunder and
designated as a Regular Interest in REMIC 2. REMIC 2 Regular
Interest LT-Premium-IO shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through Rate in effect from time to
time, subject to the terms and conditions hereof.
“REMIC 2 Regular Interest
LT-Swap-IO”: One of the separate non-certificated beneficial
ownership interests in REMIC 2 issued hereunder and designated as a
Regular Interest in REMIC 2. REMIC 2 Regular Interest LT-Swap-IO
shall accrue interest at the related
Uncertificated REMIC 2 Pass-Through
Rate in effect from time to time, subject to the terms and
conditions hereof.
“REMIC 2 Regular
Interests”: REMIC 2 Regular Interest LT1AA, REMIC 2 Regular
Interest LT1A1, REMIC 2 Regular Interest LT1A2, REMIC 2 Regular
Interest LT1M, REMIC 2 Regular Interest LT1B, REMIC 2 Regular
Interest LT1ZZ, REMIC 2 Regular Interest LT-Premium-IO and REMIC 2
Regular Interest LT-Swap-IO.
“REMIC 2 Interest Loss
Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated
Principal Balance of the Mortgage Loans and related REO Properties
then outstanding and (ii) the Uncertificated REMIC 2 Pass-Through
Rate for REMIC 2 Regular Interest LT1AA minus the Marker Rate,
divided by (b) 12.
“REMIC 2 Overcollateralized
Amount”: With respect to any date of determination, (i) 1% of
the aggregate Uncertificated Principal Balances of the REMIC 2
Regular Interests minus (ii) the aggregate of the Uncertificated
Principal Balances of REMIC 2 Regular Interest LT1A1, REMIC 2
Regular Interest LT1A2, REMIC 2 Regular Interest LT1M, REMIC 2
Regular Interest LT1B and REMIC 2 Regular Interest LT1ZZ, in each
case as of such date of determination.
“REMIC 2 Principal Loss
Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) the aggregate Stated
Principal Balance of the Mortgage Loans and related REO Properties
then outstanding and (ii) 1 minus a fraction, the numerator of
which is two times the aggregate of the Uncertificated Principal
Balances of REMIC 2 Regular Interest LT1A1, REMIC 2 Regular
Interest LT1A2, REMIC 2 Regular Interest LT1M and REMIC 2 Regular
Interest LT1B, and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC 2 Regular Interest
LT1A1, REMIC 2 Regular Interest LT1A2, REMIC 2 Regular Interest
LT1M, REMIC 2 Regular Interest LT1B and REMIC 2 Regular Interest
LT1ZZ.
“REMIC 2 Target
Overcollateralized Amount”: 1% of the Overcollateralization
Target Amount.
“REMIC 3”: The
segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the
Holders of the Regular Certificates and the Class R Certificate (in
respect of the Class R-3 Interest), pursuant to Article II
hereunder, and all amounts deposited therein, with respect to which
a separate REMIC election is to be made.
“REMIC Provisions”:
Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as
the foregoing may be in effect from time to time.
“Remittance Period”:
With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such
Distribution Date occurs and ending on the first day of the month
in which such Distribution Date occurs.
“Remittance Report”: A
report prepared by the Master Servicer and delivered to the Trustee
pursuant to Section 4.03.
“Rents from Real
Property”: With respect to any REO Property, gross income of
the character described in Section 856(d) of the Code.
“REO Account”: The
account or accounts maintained by the Master Servicer in respect of
an REO Property pursuant to Section 3.23.
“REO Disposition”: The
sale or other disposition of an REO Property on behalf of the Trust
Fund.
“REO Imputed Interest”:
As to any REO Property, for any calendar month during which such
REO Property was at any time part of the Trust Fund, one
month’s interest at the applicable Net Mortgage Rate on the
Stated Principal Balance of such REO Property (or, in the case of
the first such calendar month, of the related Mortgage Loan if
appropriate) as of the Close of Business on the Distribution Date
in such calendar month.
“REO Principal
Amortization”: With respect to any REO Property, for any
calendar month, the excess, if any, of (a) the aggregate of all
amounts received in respect of such REO Property during such
calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination
Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is
allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to Section 3.23 in respect of the
proper operation, management and maintenance of such REO Property
or (ii) payable or reimbursable to the Master Servicer pursuant to
Section 3.23 for unpaid Servicing Fees in respect of the related
Mortgage Loan and unreimbursed Servicing Advances and Advances in
respect of such REO Property or the related Mortgage Loan, over (b)
the REO Imputed Interest in respect of such REO Property for such
calendar month.
“REO Property”: A
Mortgaged Property acquired by the Master Servicer on behalf of the
Trust Fund through foreclosure or deed-in-lieu of foreclosure, as
described in Section 3.23.
“Request for Release”: A
release signed by a Servicing Officer, in the form of Exhibit E
attached hereto.
“Reserve Interest Rate”:
With respect to any Interest Determination Date, the rate per annum
that the Trustee determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/16
of 1%) of the one-month United States dollar lending rates which
banks in the City of New York selected by the Depositor are quoting
on the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or (ii) in
the event that the Trustee can determine no such arithmetic mean,
in the case of any Interest Determination Date after the initial
Interest Determination Date, the lowest one-month United States
dollar lending rate which such New York banks selected by the
Depositor are quoting on such Interest Determination Date to
leading European banks.
“Residual Interest”: The
sole class of “residual interests” in a REMIC within
the meaning of Section 860G(a)(2) of the Code.
“Responsible Officer”:
When used with respect to the Trustee, any director, any vice
president, any assistant vice president, the Secretary, any
assistant secretary, the Treasurer, any assistant treasurer, the
Cashier, any assistant cashier, any trust officer or assistant
trust officer, the Controller and any assistant controller or any
other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers
and, with respect to a particular matter, to whom such matter is
referred because of such officer’s knowledge of and
familiarity with the particular subject.
“S&P”: Standard
& Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., or its successor in interest.
“Seller”: IndyMac Bank,
F.S.B. in its capacity as seller under the Mortgage Loan Purchase
Agreement.
“Servicing Account”: The
account or accounts created and maintained pursuant to Section
3.09.
“Servicing Advances”:
All customary, reasonable and necessary “out of pocket”
costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by the Master Servicer in the performance of its
servicing obligations, including, but not limited to, the cost of
(i) the preservation, restoration, inspection and protection of the
Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the maintenance and liquidation of
the REO Property and (iv) compliance with the obligations under
Sections 3.01, 3.09, 3.16, and 3.23.
“Servicing Fee”: With
respect to each Mortgage Loan and for any calendar month, an amount
equal to one month’s interest (or in the event of any payment
of interest which accompanies a Principal Prepayment in full made
by the Mortgagor during such calendar month, interest for the
number of days covered by such payment of interest) at the
Servicing Fee Rate on the same principal amount on which interest
on such Mortgage Loan accrues for such calendar month. A portion of
such Servicing Fee may be retained by any Sub-Servicer as its
servicing compensation.
“Servicing Fee Rate”:
0.25% per annum.
“Servicing Officer”: Any
officer of the Master Servicer involved in, or responsible for, the
administration and servicing of Mortgage Loans, whose name and
specimen signature appear on a list of servicing officers furnished
by the Master Servicer to the Trustee, the Certificate Insurer and
the Depositor on the Closing Date, as such list may from time to
time be amended.
“Servicing Standard”:
Shall mean the standards set forth in Section 3.01.
“Servicing Transfer
Costs”: Shall mean all reasonable costs and expenses
(including without limitation, legal fees and expenses) incurred by
the Trustee in connection with the transfer of servicing from a
predecessor Master Servicer, including, without limitation,
any
reasonable costs or expenses
associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as
may be required by the Trustee to correct any errors or
insufficiencies in the servicing data or otherwise to enable the
Trustee or another successor Master Servicer to service the
Mortgage Loans properly and effectively.
“Startup Day”: As
defined in Section 9.01(b) hereof.
“Stated Principal
Balance”: With respect to any Mortgage Loan: (a) as of any
date of determination up to but not including the Distribution Date
on which the proceeds, if any, of a Liquidation Event with respect
to such Mortgage Loan would be distributed, the outstanding Stated
Principal Balance of such Mortgage Loan as of the Cut-off Date, as
shown in the Mortgage Loan Schedule, minus the sum of (i) the
principal portion of each Monthly Payment due on a Due Date
subsequent to the Cut-off Date, to the extent received from the
Mortgagor or advanced by the Master Servicer and distributed
pursuant to Section 4.01 on or before such date of determination,
(ii) all Principal Prepayments received after the Cut-off Date, to
the extent distributed pursuant to Section 4.01 on or before such
date of determination, (iii) all Liquidation Proceeds and Insurance
Proceeds to the extent distributed pursuant to Section 4.01 on or
before such date of determination, and (iv) any Realized Loss
incurred with respect thereto as a result of a Deficient Valuation
made during or prior to the Remittance Period for the most recent
Distribution Date coinciding with or preceding such date of
determination; and (b) as of any date of determination coinciding
with or subsequent to the Distribution Date on which the proceeds,
if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (a)
as of any date of determination up to but not including the
Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance
of the related Mortgage Loan as of the date on which such REO
Property was acquired on behalf of the Trust Fund, minus the
aggregate amount of REO Principal Amortization in respect of such
REO Property for all previously ended calendar months, to the
extent distributed pursuant to Section 4.01 on or before such date
of determination; and (b) as of any date of determination
coinciding with or subsequent to the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO
Property would be distributed, zero.
“Stepdown Date”: The
later to occur of (i) the Distribution Date occurring in October
2008 and (ii) the first Distribution Date on which the Credit
Enhancement Percentage (calculated for this purpose after taking
into account principal received or advanced on the Mortgage Loans
which is part of Available Funds for such Distribution Date but
before the distribution of the Principal Distribution Amount to the
Certificates) is equal to or greater than 9.10%.
“Subordinated
Certificate”: Any Class M Certificate or Class B
Certificate.
“Subsequent Recoveries”:
As of any Distribution Date, amounts received by the Master
Servicer (net of any related expenses permitted to be reimbursed
pursuant to Section 3.05) specifically related to a Mortgage Loan
that was the subject of a liquidation or an REO Disposition prior
to the related Prepayment Period that resulted in a Realized
Loss.
“Sub-Servicer”: Any
Person with which the Master Servicer has entered into a
Sub-Servicing Agreement and which meets the qualifications of a
Sub-Servicer pursuant to Section 3.02.
“Sub-Servicing Account”:
An account established by a Sub-Servicer which meets the
requirements set forth in Section 3.08 and is otherwise acceptable
to the Master Servicer.
“Sub-Servicing
Agreement”: The written contract between the Master Servicer
and a Sub-Servicer relating to servicing and administration of
certain Mortgage Loans as provided in Section 3.02.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Swap Administration
Agreement”: As defined in Section 4.07(b).
“Swap Account”: The
account or accounts created and maintained pursuant to Section
4.07. The Swap Account must be an Eligible Account.
“Swap Default”: The swap
default as defined in the Interest Rate Swap Agreement.
“Swap Early
Termination”: The swap early termination as defined in the
Interest Rate Swap Agreement.
“Swap Administrator”:
Deutsche Bank National Trust Company, a national banking
association, or its successor in interest, or any successor Swap
Administrator appointed pursuant to the Swap Administration
Agreement.
“Swap Fee Rate”: The
swap fee rate set forth in the Interest Rate Swap Agreement, which
rate shall not exceed 0.06% per annum.
“Swap Payment Date”: A
payment date as defined in the Interest Rate Swap
Agreement.
“Swap Provider Trigger
Event”: A Swap Termination Payment that is triggered upon:
(i) an Event of Default under the Interest Rate Swap Agreement with
respect to which the Interest Rate Swap Provider is a Defaulting
Party (as defined in the Interest Rate Swap Agreement), (ii) a
Termination Event under the Interest Rate Swap Agreement with
respect to which the Interest Rate Swap Provider is the sole
Affected Party (as defined in the Interest Rate Swap Agreement) or
(iii) an Additional Termination Event under the Interest Rate Swap
Agreement with respect to which the Interest Rate Swap Provider is
the sole Affected Party.
“Swap Termination
Payment”: The payment due under the Interest Rate Swap
Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax Matters Person”:
The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“Termination Event”: The
termination event as defined in the Interest Rate Swap
Agreement.
“Termination Price”: As
defined in Section 10.01(a) hereof.
“Terminator”: As defined
in Section 10.01 hereof.
“Total Monthly Excess
Spread”: With respect to any Distribution Date, the sum of
(i) any Excess Overcollateralization Amount for such Distribution
Date and (ii) the excess, if any, of (x) the Available Funds for
such Distribution Date over (y) the sum for such Distribution Date
of (A) the amount required to be distributed pursuant to Section
4.01(a) and (B) the Principal Remittance Amount for such
Distribution Date.
“Transfer”: Any direct
or indirect transfer, sale, pledge, hypothecation, or other form of
assignment of any Ownership Interest in a Certificate.
“Transferee”: Any Person
who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”: Any Person
who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger Event”: A
Trigger Event is in effect if
(i) with
respect to any Distribution Date occurring from and including
October 2008 to, but not including, October 2010, the Mortgage
Loans 60 or more days Delinquent, in bankruptcy, in foreclosure or
that have become REO Properties exceed 3.00% of the aggregate
Stated Principal Balance of the Mortgage Loans on such Distribution
Date;
(ii) with
respect to any Distribution Date occurring on or after October
2010, the Mortgage Loans 60 or more days Delinquent, in bankruptcy,
in foreclosure or that have become REO Properties exceed 4.50% of
the aggregate Stated Principal Balance of the Mortgage Loans on
such Distribution Date; or
(iii) for
any Distribution Date on or after the Stepdown Date, the cumulative
amount of Realized Losses incurred on the Mortgage Loans (reduced
by the aggregate amount of Subsequent Recoveries received since the
Cut-off Date through the last day of the related Remittance Period)
exceed (a) 1.75% of the aggregate Stated Principal Balance of the
Mortgage Loans on such Distribution Date with respect to the
Distribution Date in October 2008, plus an additional 1/12th of
0.75% of the aggregate Stated Principal Balance of the Mortgage
Loans on such Distribution Date for each distribution date
occurring thereafter to and including the distribution date in
September 2009 (b) 2.50% of the aggregate Stated Principal Balance
of the Mortgage Loans on such Distribution Date with respect to the
Distribution Date in October 2009, plus an additional 1/12th of
0.50% of the aggregate Stated Principal Balance of the Mortgage
Loans on such Distribution Date for each Distribution Date
occurring thereafter to and including the Distribution Date in
September 2010 and (c) 3.00% of the aggregate Stated Principal
Balance of the Mortgage Loans on such Distribution Date with
respect to the Distribution Date occurring in October 2010 and
thereafter.
“Trust”: The trust
created hereunder.
“Trustee”: Deutsche Bank
National Trust Company, a national banking association, or its
successor in interest, or any successor Trustee appointed as herein
provided.
“Trustee Fee”: The
amount payable to the Trustee on each Distribution Date pursuant to
Section 4.01(a) and Section 8.05 as compensation for all services
rendered by it in the execution of the Trust and in the exercise
and performance of any of the powers and duties of the Trustee
hereunder, which amount shall equal one month’s interest at
the Trustee Fee Rate on the aggregate Stated Principal Balance of
the Mortgage Loans and any REO Properties as of the first day of
the calendar month prior to the month of such Distribution Date
(or, in the case of the initial Distribution Date, as of the
Cut-off Date).
“Trustee Fee Rate”:
0.01% per annum.
“Trustee Float Period”:
With respect to each Distribution Date and the related amounts in
the Distribution Account, the period commencing on the Business Day
immediately preceding such Distribution Date and ending on such
Distribution Date.
“Trust Fund”: All of the
assets of the trust created hereunder consisting of REMIC 1, REMIC
2, REMIC 3, the Excess Reserve Fund Account, the Insurance Account,
distributions made by the Swap Administrator under the Swap
Administration Agreement and the Swap Account.
“Trust REMIC”: REMIC 1,
REMIC 2 or REMIC 3.
“Uncertificated Accrued
Interest”: With respect to each REMIC Regular Interest on
each Distribution Date, an amount equal to one month’s
interest at the related Uncertificated REMIC Pass-Through Rate on
the Uncertificated Principal Balance or Uncertificated Notional
Amount of such REMIC Regular Interest. In each case, Uncertificated
Accrued Interest will be reduced by any Net Prepayment Interest
Shortfalls and Relief Act Interest Shortfalls (allocated to such
REMIC Regular Interest as set forth in Section 1.02).
“Uncertificated Principal
Balance”: With respect to each REMIC Regular Interest, the
amount of such REMIC Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal
Balance of each REMIC Regular Interest shall equal the amount set
forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC Regular Interest
shall be reduced by all distributions of principal made on such
REMIC Regular Interest on such Distribution Date pursuant to
Section 4.04 and, if and to the extent necessary and appropriate,
shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 4.05, and the Uncertificated
Principal Balance of REMIC 2 Regular Interest LT1ZZ shall be
increased by interest deferrals as provided in Section 4.05. The
Uncertificated Principal Balance of each REMIC Regular Interest
that has an Uncertificated Principal Balance shall never be less
than zero.
“Uncertificated REMIC
Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through
Rate or the Uncertificated REMIC 2 Pass-Through Rate.
“Uncertificated REMIC 1
Pass-Through Rate”: With respect to each REMIC 1 Regular
Interest and any Distribution Date, the weighted average of the
Expense Adjusted Mortgage Rates of the Mortgage Loans as of the
first day of the month preceding the month of such Distribution
Date.
“Uncertificated REMIC 2
Pass-Through Rate”: With respect to each REMIC 2 Regular
Interest (other than Uncertificated REMIC 2 Regular Interest
LT-Swap-IO and Uncertificated REMIC 2 Regular Interest
LT-Premium-IO) and any Distribution Date, a per annum rate (but not
less than zero) equal to the weighted average of the rates listed
below for each such REMIC I Regular Interest listed below,
weighted on the basis of the Uncertificated Principal Balance of
each such REMIC I Regular Interest:
(a) with
respect to the REMIC 1 Regular Interest LTA, the Uncertificated
REMIC 1 Pass-Through Rate,
(b) with
respect to the REMIC 1 Regular Interest LTB, the Uncertificated
REMIC 1 Pass-Through Rate minus the Premium Rate.
(c) with
respect to the REMIC 1 Regular Interest LTC, the Uncertificated
REMIC 1 Pass-Through Rate minus the sum of (i) 0.06% and (ii) the
Premium Rate.
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(d)
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with respect to Uncertificated REMIC
2 Regular Interest LT-Swap-IO, 0.06%.
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(e) with
respect to Uncertificated REMIC 2 Regular Interest LT-Premium-IO,
the Premium Rate.
“Uninsured Cause”: Any
cause of damage to a Mortgaged Property such that the complete
restoration of such property is not fully reimbursable by the
insurance policies required to be maintained pursuant to Section
3.14.
“United States Person”:
A citizen or resident of the United States, a corporation,
partnership (or other entity treated as a corporation or
partnership for United States federal income tax purposes) created
or organized in, or under the laws of, the United States, any state
thereof, or the District of Columbia (except in the case of a
partnership, to the extent provided in Treasury regulations);
provided, that for purposes solely of the restrictions on the
transfer of Class R Certificates, no partnership or other entity
treated as a partnership for United States federal income tax
purposes shall be treated as a United States Person unless (a) all
persons that own an interest in such partnership either directly or
through any entity that is not a corporation for United States
federal income tax purposes are required by the applicable
operative agreement to be United States Persons or (b) the
partnership treats all income as effectively connected income
within the meaning of Section 864 of the Code, or an estate the
income of which from sources without the United States is
includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade
or business within the United States, or 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 United States persons
have authority to control all substantial decisions of the trust.
The term “United States” shall have the meaning
set
forth in Section 7701 of the Code or
successor provisions. The term “U.S. Person” refers to
a United States Person.
“Unpaid Interest Shortfall
Amount”: With respect to any Class of Class A Certificates
and any Class of Subordinated Certificates and (i) the first
Distribution Date, zero, and (ii) any Distribution Date after the
first Distribution Date, the amount, if any, by which (a) the sum
of (1) the Accrued Certificate Interest for such Class for the
immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such
preceding Distribution Date exceeds (b) the aggregate amount
distributed to such Class in respect of interest pursuant to clause
(a) of this definition on such preceding Distribution Date, plus
interest on the amount of interest due but not paid on the
Certificates of such Class on such preceding Distribution Date, to
the extent permitted by law, at the Pass-Through Rate for such
Class for the related Accrual Period.
“Value”: 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; 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.
“Voting Rights”: The
portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times, the Class A
Certificates, the Subordinated Certificates and the Class C
Certificates shall have 99% of the Voting Rights (allocated among
the Holders of the Class A Certificates, the Subordinated
Certificates and the Class C Certificates in proportion to the then
outstanding Certificate Principal Balances of their respective
Certificates), and the Class R Certificates shall have 1% of the
Voting Rights. The Voting Rights allocated to any Class of
Certificates (other than the Class R Certificates) shall be
allocated among all Holders of each such Class in proportion to the
outstanding Certificate Principal Balance or Notional Amount of
such Certificates and the Voting Rights allocated to the Class R
Certificates shall be allocated among all Holders of such Class in
proportion to such Holders’ respective Percentage Interests
in the Class R Certificates; provided, however, that when none of
the Regular Certificates are outstanding, 100% of the Voting Rights
shall be allocated among Holders of the Class R Certificates in
accordance with such Holders’ respective Percentage Interests
in the Class R Certificates.
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Section 1.02
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Allocation of Certain Interest
Shortfalls .
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For purposes of calculating the
amount of the Accrued Certificate Interest for the Class A
Certificates, the Subordinated Certificates and the Class C
Certificates for any Distribution Date, the aggregate amount of any
Net Prepayment Interest Shortfalls and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date (together, “Net Interest Shortfalls”)
shall be allocated first, to reduce the interest accrued on the
Class C Certificates in the related Accrual Period up to an amount
equal to one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of such Certificates and,
thereafter, to reduce the interest accrued during the related
Accrual Period on the Class A Certificates and the Subordinated
Certificates on a pro rata basis based on, and to the extent
of, one month’s
interest at the then applicable
respective Pass-Through Rate on the respective Certificate
Principal Balance of each such Certificate.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the REMIC 1 Regular
Interests for any Distribution Date, the aggregate amount of any
Net Prepayment Interest Shortfalls and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated among REMIC 1 Regular Interest
LTA, REMIC 1 Regular Interest LTB and REMIC 1 Regular Interest LTC,
pro rata based on, and to the extent of, one month’s interest
at the then applicable respective Uncertificated REMIC 1
Pass-Through Rate on the respective Uncertificated Principal
Balance of each such REMIC 1 Regular Interest.
For purposes of calculating the
amount of Uncertificated Accrued Interest for the Uncertificated
REMIC 2 Regular Interests for any Distribution Date, the aggregate
amount of any Net Prepayment Interest Shortfalls and any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for
any Distribution Date shall be allocated among the REMIC 2 Regular
Interests, in the same manner and priority as such amounts are
allocated with respect to the Corresponding
Certificates.
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Section 1.03
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Accounting
.
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Unless otherwise specified herein,
for the purpose of any definition or calculation, whenever amounts
are required to be netted, subtracted or added or any distributions
are required to be taken into account, such definition or
calculation, and any related definitions or calculations, shall be
determined without duplication of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF
CERTIFICATES
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Section 2.01
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Conveyance of Mortgage
Loans .
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The Depositor, concurrently with the
execution and delivery hereof, does hereby transfer, assign, set
over and otherwise convey to the Trustee without recourse, in trust
for the benefit of the Certificateholders and the Certificate
Insurer, all the right, title and interest of the Depositor,
including any security interest therein for the benefit of the
Depositor, in and to (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Stated Principal
Balance as of the Cut-off Date, all interest and principal received
thereon after the Cut-off Date (other than interest and principal
due on such Mortgage Loans on or before the Cut-off Date); (ii)
property which secured each such Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iii) its
interest in any insurance policies in respect of the Mortgage
Loans; (iv) all proceeds of any of the foregoing; (v) the rights of
the Depositor under the Mortgage Loan Purchase Agreement; and (vi)
all other assets included or to be included in the Trust
Fund.
In connection with such transfer and
assignment, the Depositor does hereby deliver to, and deposit with,
the Trustee or its designated agent (the “Custodian”),
the following documents or instruments with respect to each
Mortgage Loan so transferred and assigned (with respect to each
Mortgage Loan, a “Mortgage File”):
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the
following form: “Pay to the order of Deutsche Bank National
Trust Company, as Trustee, without recourse”, or with respect
to any lost Mortgage Note, an original Lost Note Affidavit stating
that the original Mortgage Note was lost, misplaced or destroyed,
together with a copy of the related Mortgage Note; provided,
however, that such substitutions of Lost Note Affidavits for
original Mortgage Notes may occur only with respect to Mortgage
Loans, the aggregate Stated Principal Balance of which is less than
or equal to 2.0% of the Pool Balance as of the Cut-off
Date;
(ii) the
original Mortgage with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon
or, if such Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be,
certified to be a true and complete copy of the original submitted
for recording;
(iii) an
original Assignment, in form and substance acceptable for
recording. The Mortgage shall be assigned either (A) in blank or
(B) to “Deutsche Bank National Trust Company, as Trustee,
without recourse”
(iv) an
original copy of any intervening Assignment, showing a complete
chain of assignments;
(v) the
original or a certified copy of the lender’s title insurance
policy; and
(vi) the
original or copies of each assumption, modification, written
assurance or substitution agreement, if any.
With respect to up to 30% of the
Mortgage Loans, the Depositor may deliver all or a portion of each
related Mortgage File to the Trustee not later than five Business
Days after the Closing Date (such Mortgage Loans, the
“Delayed Delivery Mortgage Loans”).
If any of the documents referred to
in Section 2.01(ii), (iii) or (iv) above has as of the Closing Date
been submitted for recording but either (x) has not been returned
from the applicable public recording office or (y) has been lost or
such public recording office has retained the original of such
document, the obligations of the Depositor to deliver such
documents shall be deemed to be satisfied upon (1) delivery to the
Trustee or the Custodian no later than the Closing Date, of a copy
of each such document certified by the Master Servicer, in its
capacity as Seller, in the case of (x) above or the applicable
public recording office in the case of (y) above to be a true and
complete copy of the original that was submitted for recording and
(2) if such copy is certified by the Master Servicer, in its
capacity as Seller, delivery to the Trustee or the Custodian,
promptly upon receipt thereof of either the original or a copy of
such document certified by the applicable public recording office
to be a true and complete copy of the original. If the original
lender’s title insurance policy, or a certified copy thereof,
was not delivered pursuant to Section 2.01(v) above, the Depositor
shall deliver or cause to be delivered to the Trustee or the
Custodian, the original or a copy of a written commitment or
interim binder or preliminary report of title issued by the title
insurance or escrow company, with the original or a certified copy
thereof to be delivered to the Trustee or the Custodian, promptly
upon receipt thereof. The Master Servicer or the Depositor shall
deliver or cause to be delivered to the Trustee or the Custodian
promptly upon receipt thereof any other documents constituting a
part of a Mortgage File received with respect to any Mortgage Loan,
including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Upon discovery or receipt of notice
of any materially defective document in, or that a document is
missing from, a Mortgage File, the Master Servicer, in its capacity
as Seller, shall have 90 days to cure such defect or deliver such
missing document to the Trustee or the Custodian, to the extent
required pursuant to Section 2.03. If the Seller does not cure such
defect or deliver such missing document within such time period,
the Master Servicer, in its capacity as Seller, shall either
repurchase or substitute for such Mortgage Loan in accordance with
Section 2.03, to the extent required pursuant to Section
2.03.
The Depositor (at the expense of the
Seller) shall cause the Assignments which were delivered in blank
to be completed and shall cause all Assignments referred to in
Section 2.01(iii) hereof and, to the extent necessary, in Section
2.01(iv) hereof to be recorded. The Depositor shall furnish the
Trustee, or its designated agent, with a copy of each Assignment
submitted for recording. In the event that any such Assignment is
lost or returned unrecorded
because of a defect therein, the
Depositor shall promptly have a substitute Assignment prepared or
have such defect cured, as the case may be, and thereafter cause
each such Assignment to be duly recorded.
Notwithstanding the foregoing, the
Depositor shall not cause to be recorded any Assignment which
relates to a Mortgage Loan secured by a Mortgaged Property in
California or in any other jurisdiction where the Rating Agencies
do not require recordation in order to receive the ratings on the
Certificates at the time of their initial issuance (which, in the
case of the Insured Certificates, shall be without regard to the
Policy); provided, however, that each Assignment shall be submitted
for recording by the Depositor in the manner described above, at no
expense to the Trust Fund or Trustee, upon the earliest to occur
of: (i) direction by Holders of Certificates entitled to at least
25% of the Voting Rights, (ii) the occurrence of a Master Servicer
Event of Termination, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Master Servicer, (iv) the
occurrence of a servicing transfer as described in Section 7.02
hereof and (v) if the Seller is not the Master Servicer and with
respect to any one Assignment, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the
related Mortgage. Notwithstanding the foregoing, if the Depositor
defaults in its obligation to cause to be paid the cost of
recording the Assignments, such expense will be paid by the Master
Servicer. If the Master Servicer defaults in its obligation to
cause to be paid the cost of recording the Assignments, such
expense will be paid by the Trustee (to the extent that a
Responsible Officer of the Trustee has actual notice thereof and to
the extent that the Depositor has not caused a non-recordation
Opinion of Counsel to be rendered to the Trustee, the Certificate
Insurer and each Rating Agency, with respect to such Mortgage Loan)
and the Trustee shall be reimbursed for such expenses. The
Depositor shall deliver a non-recordation Opinion of Counsel to the
Trustee within 90 days of the Closing Date. The Depositor shall be
required to deliver such Assignments for recording within 45 days
of the Closing Date.
The Depositor herewith delivers to
the Trustee an executed original of the Mortgage Loan Purchase
Agreement.
The Master Servicer shall forward to
the Custodian original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of
their execution; provided, however, that the Master Servicer shall
provide the Custodian with a certified true copy of any such
document submitted for recordation within two weeks of its
execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the
appropriate public recording office to be a true and complete copy
of the original within 270 days of its submission for recordation.
In the event that the Master Servicer cannot provide a copy of such
document certified by the public recording office within such 270
day period, the Master Servicer shall deliver to the Custodian,
within such 270 day period, an Officer’s Certificate of the
Master Servicer which shall (A) identify the recorded document, (B)
state that the recorded document has not been delivered to the
Custodian due solely to a delay caused by the public recording
office, (C) state the amount of time generally required by the
applicable recording office to record and return a document
submitted for recordation, if known, and (D) specify the date the
applicable recorded document is expected to be delivered to the
Custodian, and, upon receipt of a copy of such document certified
by the public recording office, the Master Servicer shall
immediately deliver such document to the Custodian. In the event
the appropriate public
recording office will not certify as
to the accuracy of such document, the Master Servicer shall deliver
a copy of such document certified by an officer of the Master
Servicer to be a true and complete copy of the original to the
Custodian.
Notwithstanding anything to the
contrary in this Agreement, within five Business Days after the
Closing Date, the Depositor shall either:
(x) deliver
to the Trustee the Mortgage File as required pursuant to this
Section 2.01 for each Delayed Delivery Mortgage Loan; or
(y)(A) cause the
Seller to repurchase the Delayed Delivery Mortgage Loan or (B)
substitute a Qualified Substitute Mortgage Loan for a Delayed
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 Delayed Delivery Mortgage Loan as a
Deleted Mortgage Loan for purposes of such Section
2.03);
provided, however, that if the
Depositor fails to deliver a Mortgage File for any Delayed Delivery
Mortgage Loan within the period specified herein, the Depositor
shall cause the Seller to use its best reasonable efforts to effect
a substitution, rather than a repurchase of, such Delayed Delivery
Mortgage Loan; 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 Delayed 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 certification for the Delayed Delivery
Mortgage Loans delivered during such period in accordance with the
provisions of Section 2.02.
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Section 2.02
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Acceptance by Trustee
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Subject to the provisions of Section
2.01 and subject to the review described below and any exceptions
noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt of the documents referred
to in Section 2.01 above and all other assets included in the
definition of “Trust Fund” and declares that it holds
and will hold such documents and the other documents delivered to
it constituting a Mortgage File, and that it holds or will hold all
such assets and such other assets included in the definition of
“Trust Fund” in trust for the exclusive use and benefit
of all present and future Certificateholders and the Certificate
Insurer.
The Trustee agrees, for the benefit
of the Certificateholders and the Certificate Insurer, to execute
and deliver (or cause the Custodian to execute and deliver) to the
Depositor on or prior to the Closing Date an acknowledgment of
receipt of the original Mortgage Note (with any exceptions noted),
substantially in the form attached as Exhibit F-3
hereto.
The Trustee agrees, for the benefit
of the Certificateholders and the Certificate Insurer, to review,
or that it has reviewed pursuant to Section 2.01 (or to cause the
Custodian to review or that it has caused the Custodian to have
reviewed), each Mortgage File on or prior to the Closing Date, with
respect to each Mortgage Loan (or, with respect to any document
delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage
Loan, within 45 days after the
assignment thereof). The Trustee further agrees, for the benefit of
the Certificateholders and the Certificate Insurer, to certify in
substantially the form attached hereto as Exhibit F-1, within 45
days after the Closing Date, with respect to each Mortgage Loan
(or, with respect to any document delivered after the Startup Day,
within 45 days of receipt and with respect to any Qualified
Substitute Mortgage, within 45 days after the assignment thereof)
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule
(other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in the exception report annexed thereto as
not being covered by such certification), (i) all documents
required to be delivered to it pursuant Section 2.01 of this
Agreement are in its possession, (ii) such documents have been
reviewed by it and have not been mutilated, damaged or torn and
relate to such Mortgage Loan and (iii) based on its examination and
only as to the foregoing, the information set forth in the Mortgage
Loan Schedule that corresponds to items (1) and (2) of the Mortgage
Loan Schedule accurately reflects information set forth in the
Mortgage File. It is herein acknowledged that, in conducting such
review, the Trustee (or the Custodian, as applicable) is under no
duty or obligation to inspect, review or examine any such
documents, instruments, certificates or other papers to determine
that they are genuine, enforceable, or appropriate for the
represented purpose or that they have actually been recorded or
that they are other than what they purport to be on their
face.
Within the year commencing on the
Closing Date and ending on the first anniversary date of the
Closing Date, the Trustee shall deliver (or cause the Custodian to
deliver) to the Depositor, the Seller, the Certificate Insurer and
the Master Servicer a final certification in the form annexed
hereto as Exhibit F-2 evidencing the completeness of the Mortgage
Files, with any applicable exceptions noted thereon.
If in the process of reviewing the
Mortgage Files and making or preparing, as the case may be, the
certifications referred to above, the Trustee (or the Custodian, as
applicable) finds any document or documents constituting a part of
a Mortgage File to be missing or to not meet the requirements of
Section 2.01, at the conclusion of its review the Trustee shall
indicate such on the exception report annexed to the final
certification sent to the Seller, the Depositor, the Certificate
Insurer and the Master Servicer. In addition, upon the discovery by
the Seller, the Depositor, the Certificate Insurer or the Master
Servicer (or upon receipt by the Trustee of written notification of
such breach) of a breach of any of the representations and
warranties made by the Seller in the Mortgage Loan Purchase
Agreement in respect of any Mortgage Loan which materially
adversely affects such Mortgage Loan or the interests of the
Certificateholders in such Mortgage Loan, the party discovering
such breach shall give prompt written notice to the other parties
to this Agreement.
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Section 2.03
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Repurchase or Substitution of
Mortgage Loans by the Seller .
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(a) Upon
discovery or receipt of written notice of any document which does
not conform to the requirements of Section 2.01, or that a document
is missing from a Mortgage File, or of the breach by the Seller of
any representation, warranty or covenant under the Mortgage Loan
Purchase Agreement in respect of any Mortgage Loan which in any
such case materially adversely affects the value of such Mortgage
Loan or the interest therein of the Certificateholders or the
Certificate Insurer, the Trustee shall promptly notify the Seller,
the Depositor, the Certificate Insurer and the Master Servicer of
such defect, missing document or
breach and request that the Seller,
if and to the extent required under the Mortgage Loan Purchase
Agreement, deliver such missing document or cure such defect or
breach within 90 days from the date the Seller was notified of such
missing document, defect or breach, and if the Seller does not
deliver such missing document or cure such defect or breach in all
material respects during such period, if and to the extent required
under the Mortgage Loan Purchase Agreement, the Master Servicer or
the Trustee, in accordance with Section 3.02(b), shall enforce the
Seller’s obligation under the Mortgage Loan Purchase
Agreement and cause the Seller to repurchase such Mortgage Loan
from the Trust Fund at the Purchase Price on or prior to the
Determination Date following the expiration of such 90 day period;
provided, that in connection with any such breach that could not
reasonably have been cured within such 90 day period, if the Seller
shall have commenced to cure such breach within such 90 day period,
the Seller shall be permitted to proceed thereafter diligently and
expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement. The Purchase
Price for the repurchased Mortgage Loan shall be deposited in the
Collection Account, and the Trustee, upon receipt of written
certification from the Master Servicer of such deposit, shall
release to the Seller the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each
case without recourse, as the Seller shall furnish to it and as
shall be necessary to vest in the Seller any Mortgage Loan released
pursuant hereto and the Trustee shall have no further
responsibility with regard to such Mortgage File (it being
understood that the Trustee shall have no responsibility for
determining the sufficiency of such assignment for its intended
purpose). In lieu of repurchasing any such Mortgage Loan as
provided above, the Seller may cause such Mortgage Loan to be
removed from the Trust Fund (in which case it shall become a
Deleted Mortgage Loan) and substitute one or more Qualified
Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d). It is understood and
agreed (i) that the obligation of the Seller to cure or to
repurchase (or to substitute for) any Mortgage Loan as to which a
document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing
shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of
the Certificateholders and the Certificate Insurer and (ii) that
the Seller shall not have any obligation to provide any such cure,
repurchase or substitution remedy with respect to any such defect
or breach to the extent such defect or breach occurred as a result
of the problem associated with the related Mortgage Loan that is
identified on Schedule II to the Mortgage Loan Purchase
Agreement.
(b) As
promptly as practicable following the earlier of discovery by the
Depositor or receipt of notice by the Depositor of the breach of
any representation, warranty or covenant of the Depositor set forth
in Section 2.06 which materially and adversely affects the
interests of the Certificateholders or the Certificate Insurer in
any Mortgage Loan, the Depositor shall cure such breach in all
material respects.
(c) As
promptly as practicable following the earlier of discovery by the
Master Servicer or receipt of notice by the Master Servicer of the
breach of any representation, warranty or covenant of the Master
Servicer set forth in Section 2.05 which materially and adversely
affects the interests of the Certificateholders in any Mortgage
Loan, the Master Servicer shall cure such breach in all material
respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted
Mortgage Loans made pursuant to Section 2.03(a) must be effected
prior to the last Business Day that is two years after the Closing
Date. The final maturity date of such Qualified Substitute Mortgage
Loan must be on or before January 2011. As to any Deleted Mortgage
Loan for which the Seller substitutes a Qualified Substitute
Mortgage Loan or Loans, such substitution shall be effected by the
Seller delivering to the Trustee, for such Qualified Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage and the
Assignment to the Trustee, and such other documents and agreements,
with all necessary endorsements thereon, as are required by Section
2.01, together with an Officers’ Certificate providing that
each such Qualified Substitute Mortgage Loan satisfies the
definition thereof and specifying the Substitution Adjustment (as
described below), if any, in connection with such substitution. The
Trustee shall acknowledge receipt for such Qualified Substitute
Mortgage Loan or Loans and, within ten Business Days thereafter,
shall review such documents as specified in Section 2.02 and
deliver to the Master Servicer, with respect to such Qualified
Substitute Mortgage Loan or Loans, a certification substantially in
the form attached hereto as Exhibit F-1, with any applicable
exceptions noted thereon. Within one year of the date of
substitution, the Trustee shall deliver to the Master Servicer a
certification substantially in the form of Exhibit F-2 hereto with
respect to such Qualified Substitute Mortgage Loan or Loans, with
any applicable exceptions noted thereon. Monthly Payments due with
respect to Qualified Substitute Mortgage Loans in the month of
substitution are not part of the Trust Fund and will be retained by
the Seller. For the month of substitution, distributions to
Certificateholders will reflect the collections and recoveries in
respect of such Deleted Mortgage Loan in the Remittance Period
ending in the month of substitution and the Seller shall thereafter
be entitled to retain all amounts subsequently received in respect
of such Deleted Mortgage Loan. The Trustee shall give written
notice to the Certificateholders and the Certificate Insurer that
such substitution has taken place, and the Master Servicer shall
amend the Mortgage Loan Schedule to reflect the removal of such
Deleted Mortgage Loan from the terms of this Agreement and the
substitution of the Qualified Substitute Mortgage Loan or Loans and
shall deliver a copy of such amended Mortgage Loan Schedule to the
Trustee. Upon such substitution by the Seller, such Qualified
Substitute Mortgage Loan or Loans shall constitute part of the
Mortgage Pool and shall be subject in all respects to the terms of
this Agreement and the Mortgage Loan Purchase Agreement, including
all applicable representations and warranties thereof included in
the Mortgage Loan Purchase Agreement as of the date of
substitution.
For any month in which the Seller
substitutes one or more Qualified Substitute Mortgage Loans for one
or more Deleted Mortgage Loans, the Master Servicer will determine
the amount (the “ Substitution Adjustment ”), if
any, by which the aggregate Purchase Price of all such Deleted
Mortgage Loans exceeds the aggregate, as to each such Qualified
Substitute Mortgage Loan, of the Stated Principal Balance thereof
as of the date of substitution, together with one month’s
interest on such Stated Principal Balance at the applicable Net
Mortgage Rate. On the date of such substitution, the Seller will
deliver or cause to be delivered to the Master Servicer for deposit
in the Collection Account, to the extent required under the
Mortgage Loan Purchase Agreement, an amount equal to the
Substitution Adjustment, if any, and the Trustee, upon receipt of
the related Qualified Substitute Mortgage Loan or Loans and
certification by the Master Servicer of such deposit, shall release
to the Seller the Mortgage File or Files with respect to the
applicable Deleted Mortgage Loan(s), and shall execute and deliver
such instruments of transfer or assignment, in each case without
recourse, as the Seller shall deliver to it and as shall be
necessary to vest therein any Deleted Mortgage Loan released
pursuant hereto.
In addition, the Seller shall obtain
at its own expense and deliver to the Trustee and the Certificate
Insurer an Opinion of Counsel to the effect that such substitution
will not cause (a) any federal tax to be imposed on the Trust Fund,
including without limitation, any federal tax imposed on
“prohibited transactions” under Section 860F(a)(l) of
the Code or on “contributions after the startup date”
under Section 860G(d)(l) of the Code or (b) any REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
If such Opinion of Counsel can not be delivered, then such
substitution may only be effected at such time as the required
Opinion of Counsel can be given.
(e) Upon
discovery by the Depositor, the Certificate Insurer or the Master
Servicer or receipt of written notice by 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, within two Business
Days, give written notice thereof to the other parties hereto. In
connection therewith, the Master Servicer or the Trustee, in
accordance with Section 3.02(b), shall enforce the obligations of
the Seller to repurchase or, subject to the limitations set forth
in Section 2.03(d), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the
earlier of discovery or receipt of such notice with respect to such
affected Mortgage Loan. Such repurchase or substitution shall be
made by the Seller if the affected Mortgage Loan’s status as
a non-qualified mortgage is or results from a breach of any
representation, warranty or covenant made by the Seller under the
Mortgage Loan Purchase Agreement. Any such repurchase or
substitution shall be made in the same manner as set forth in
Section 2.03(d). The Trustee shall reconvey to the Seller, as the
case may be, 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 pursuant to Section 2.03(a).
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Section 2.04
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[Reserved]
.
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Section 2.05
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Representations, Warranties and
Covenants of the Master Servicer.
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The Master Servicer hereby
represents, warrants and covenants to the Trustee, for the benefit
of each of the Trustee, the Certificate Insurer and the
Certificateholders, and to the Depositor that as of the Closing
Date or as of such date specifically provided herein:
(i) The
Master Servicer is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its formation and
has all licenses necessary to carry on its business as now being
conducted and is licensed, qualified and in good standing in the
states where each Mortgaged Property is located if the laws of such
state require licensing or qualification in order to conduct
business of the type conducted by the Master Servicer or to ensure
the enforceability or validity of each Mortgage Loan; the Master
Servicer has the power and authority to execute and deliver this
Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all
instruments of transfer to be delivered pursuant to this Agreement)
by the Master Servicer and the consummation of the transactions
contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation
of the Master Servicer, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally; and
all requisite corporate action
has been taken by the Master
Servicer to make this Agreement valid and binding upon the Master
Servicer in accordance with its terms;
(ii) The
consummation of the transactions contemplated by this Agreement are
in the ordinary course of business of the Master Servicer and will
not result in the breach of any term or provision of the charter or
by-laws of the Master Servicer or result in the breach of any term
or provision of, or conflict with or constitute a default under or
result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which
the Master Servicer or its property is subject, or result in the
violation of any law, rule, regulation, order, judgment or decree
to which the Master Servicer or its property is subject;
(iii) The
execution and delivery of this Agreement by the Master Servicer and
the performance and compliance with its obligations and covenants
hereunder do not require the consent or approval of any
governmental authority or, if such consent or approval is required,
it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby
which are executed and delivered by the Master Servicer, constitute
and will constitute valid, legal and binding obligations of the
Master Servicer, enforceable in accordance with their respective
terms, except as the enforcement thereof may be limited by
applicable bankruptcy laws and general principles of
equity;
(vi) The
Master Servicer does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(vii) There
is no action, suit, proceeding or investigation pending or, to its
knowledge, threatened against the Master Servicer that, either
individually or in the aggregate, (A) may result in any change in
the business, operations, financial condition, properties or assets
of the Master Servicer that might prohibit or materially and
adversely affect the performance by such Master Servicer of its
obligations under, or validity or enforceability of, this
Agreement, or (B) may result in any material impairment of the
right or ability of the Master Servicer to carry on its business
substantially as now conducted, or (C) may result in any material
liability on the part of the Master Servicer, or (D) would draw
into question the validity or enforceability of this Agreement or
of any action taken or to be taken in connection with the
obligations of the Master Servicer contemplated herein, or (E)
would otherwise be likely to impair materially the ability of the
Master Servicer to perform under the terms of this
Agreement;
(viii) Neither
this Agreement nor any information, certificate of an officer,
statement furnished in writing or report delivered to the Trustee
by the Master Servicer in connection with the transactions
contemplated hereby contains any untrue statement of a material
fact; and
(ix) The
Master Servicer covenants that its computer and other systems used
in servicing the Mortgage Loans operate in a manner such that the
Master Servicer can service the Mortgage Loans in accordance with
the terms of this Agreement.
It is understood and agreed that the
representations, warranties and covenants set forth in this Section
2.05 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Trustee, the Depositor, the
Certificate Insurer and the Certificateholders. Upon discovery by
any of the Depositor, the Master Servicer, the Seller, the
Certificate Insurer or the Trustee of a breach of any of the
foregoing representations, warranties and covenants which
materially and adversely affects the value of any Mortgage Loan, or
the interests therein of the Certificateholders, the party
discovering such breach shall give prompt written notice (but in no
event later than two Business Days following such discovery) to the
Master Servicer, the Seller, the Certificate Insurer and the
Trustee.
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Section 2.06
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Representations and Warranties of
the Depositor .
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The Depositor represents and
warrants to the Trust and to the Trustee, for the benefit of each
of the Trustee, the Certificateholders and the Certificate Insurer,
that as of the Closing Date or as of such date specifically
provided herein:
(i) This
Agreement constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting the enforcement of
creditors’ rights in general and except as such
enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in
equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on
behalf of the Trust of each Mortgage Loan, the Depositor had good
and marketable title to each Mortgage Loan (insofar as such title
was conveyed to it by the Seller) subject to no prior lien, claim,
participation interest, mortgage, security interest, pledge, charge
or other encumbrance or other interest of any nature;
(iii) As
of the Closing Date, the Depositor has transferred all right, title
and interest in the Mortgage Loans to the Trustee on behalf of the
Trust;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on
behalf of the Trust with any intent to hinder, delay or defraud any
of its creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with full
corporate power and authority to own its assets and conduct its
business as presently being conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or
by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Depositor is a party or by which
it
or its properties may be bound,
which default might result in any material adverse changes in the
financial condition, earnings, affairs or business of the Depositor
or which might materially and adversely affect the properties or
assets, taken as a whole, of the Depositor or the ability of the
Depositor to perform its obligations under this
Agreement;
(vii) The
execution, delivery and performance of this Agreement by the
Depositor, and the consummation of the transactions contemplated
thereby, do not and will not result in a material breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor
is a party or by which the Depositor is bound or to which any of
the property or assets of the Depositor is subject, nor will such
actions result in any violation of the provisions of the articles
of incorporation or by-laws of the Depositor or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its
properties or assets (except for such conflicts, breaches,
violations and defaults as would not have a material adverse effect
on the ability of the Depositor to perform its obligations under
this Agreement and as would not have a material adverse effect on
the validity of this Agreement or the Certificates);
(viii) No
consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
of the United States or any other jurisdiction is required for the
issuance of the Certificates, or the consummation by the Depositor
of the other transactions contemplated by this Agreement, except
such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under state securities or
Blue Sky laws, (b) have been previously obtained or (c) the failure
of which to obtain would not have a material adverse effect on the
performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement; and
(ix) There
are no actions, proceedings or investigations pending before or, to
the Depositor’s knowledge, threatened by any court,
administrative agency or other tribunal to which the Depositor is a
party or of which any of its properties is the subject: (a) which
if determined adversely to the Depositor would have a material
adverse effect on the business, results of operations or financial
condition of the Depositor; (b) asserting the invalidity of this
Agreement or the Certificates; (c) seeking to prevent the issuance
of the Certificates or the consummation by the Depositor of any of
the transactions contemplated by this Agreement, as the case may
be; or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement. It is understood and
agreed that the representations and warranties set forth in this
Section 2.06 shall survive delivery of the Mortgage Files to the
Trustee and shall inure to the of the Certificateholders
notwithstanding any restrictive or qualified endorsement or
assignment. Upon discovery by any of the Depositor, the Master
Servicer or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of
the Certificateholders, the party discovering such breach shall
give prompt written notice to the other parties hereto, and in no
event later than two Business Days from the date of such discovery.
Unless such breach shall
not be susceptible of cure within 90
days, the obligation of the Depositor set forth in Section 2.03(b)
to cure breaches shall constitute the sole remedy against the
Depositor available to the Certificateholders, the Master Servicer
and the Trustee on behalf of the Certificateholders respecting a
breach of the representations, warranties and covenants contained
in this Section 2.06.
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Section 2.07
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Issuance of
Certificates .
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The Trustee acknowledges the
assignment to it of the Mortgage Loans and the delivery to it of
the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02, together with the assignment to it of all other assets
included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in
exchange therefor, the Trustee, pursuant to the written request of
the Depositor executed by an officer of the Depositor, has
executed, authenticated and delivered to or upon the order of the
Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates, constitute the entire
beneficial ownership interest in the Trust Fund. The rights of the
Certificateholders to receive distributions from the proceeds of
the Trust Fund in respect of the Certificates, and all ownership
interests evidenced or constituted by the Certificates, shall be as
set forth in this Agreement.
Section
2.08 Conveyance
of REMIC 1 Regular Interests and Acceptance of REMIC 2 and
REMIC 3 by Trustee .
(a) The
Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and
interest of the Depositor in and to the assets described in the
definition of REMIC 1 for the benefit of the holders of the REMIC 1
Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee
acknowledges receipt of the assets described in the definition of
REMIC 1 and declares that it holds and will hold the same in trust
for the exclusive use and benefit of the holders of the REMIC 1
Regular Interests and the Class R Certificates (in respect of the
Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute
the entire beneficial ownership interest in REMIC 1.
(c) The
Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and
interest of the Depositor in and to the REMIC 1 Regular Interests
(which are uncertificated) for the benefit of the Holders of the
REMIC 2 Regular Interests (which are uncertificated) and the Class
R Certificates (in respect of the Class R-2 Interest). The Trustee
acknowledges receipt of the REMIC 1 Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use
and benefit of the Holders of the REMIC 2 Regular Interests and the
Class R Certificates (in respect of the Class R-2 Interest). The
interests evidenced by the Class R-2 Interest, together with the
REMIC 2 Regular Interests, constitute the entire beneficial
ownership interest in REMIC 2.
(d) The
Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, set over and otherwise convey in
trust to the Trustee without recourse all the right, title and
interest of the Depositor in and to the REMIC 2 Regular Interests
(which are uncertificated) for the benefit of the Holders of the
Regular Certificates and the Class R Certificates (in respect of
the Class R-3 Interest). The Trustee acknowledges receipt of the
REMIC 2 Regular Interests and declares that it holds and will hold
the same in trust for the exclusive use and benefit of the Holders
of the Regular Certificates and the Class R Certificates (in
respect of the Class R-3 Interest). The interests evidenced by the
Class R-3 Interest, together with the Regular Certificates,
constitute the entire beneficial ownership interest in REMIC
3.
(e) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1
(including the Residual Interest therein represented by the Class
R-1 Interest) and the acceptance by the Trustee thereof, pursuant
to Section 2.08(a), (ii) [reserved], (iii) the assignment and
delivery to the Trustee of REMIC 2 (including the Residual Interest
therein represented by the Class R-2 Interest) and the acceptance
by the Trustee thereof, pursuant to Section 2.08(c), and (iv) the
assignment and delivery to the Trustee of REMIC 3 (including the
Residual Interest therein represented by the Class R-3 Interest)
and the acceptance by the Trustee thereof, pursuant to Section
2.08(d), the Trustee, pursuant to the written request of the
Depositor executed by an officer of the Depositor, has executed,
authenticated and delivered to or upon the order of the Depositor,
the Class R Certificates in authorized denominations evidencing the
Class R-1 Interest, the Class R-2 Interest and the Class R-3
Interest.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
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Section 3.01
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Master Servicer to Act as Master
Servicer .
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The Master Servicer shall service
and administer the Mortgage Loans on behalf of the Trust and in the
best interests of and for the benefit of the Certificateholders and
the Certificate Insurer (as determined by the Master Servicer in
its reasonable judgment) in accordance with the terms of this
Agreement and the Mortgage Loans and, to the extent consistent with
such terms, in the same manner in which it services and administers
similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of
mortgage lenders and loan servicers administering similar mortgage
loans but without regard to:
(i) any
relationship that the Master Servicer, any Sub-Servicer or any
Affiliate of the Master Servicer or any Sub-Servicer may have with
the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Master
Servicer or any Affiliate of the Master Servicer;
(iii) the
Master Servicer’s obligation to make Advances or Servicing
Advances; or
(iv) the
Master Servicer’s or any Sub-Servicer’s right to
receive compensation for its services hereunder or with respect to
any particular transaction.
Subject only to the above-described
servicing standards and the terms of this Agreement and of the
Mortgage Loans, the Master Servicer shall have full power and
authority, acting alone or through Sub-Servicers as provided in
Section 3.02, to do or cause to be done any and all things in
connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the
foregoing, the Master Servicer in its own name or in the name of a
Sub-Servicer is hereby authorized and empowered by the Trustee,
when the Master Servicer believes it appropriate in its best
judgment in accordance with the servicing standards set forth
above, to execute and deliver, on behalf of the Certificateholders,
the Certificate Insurer and the Trustee, and upon notice to the
Trustee and the Certificateholders, any and all instruments of
satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to
the Mortgage Loans and the Mortgaged Properties and to institute
foreclosure proceedings or obtain a deed-in-lieu of foreclosure so
as to convert the ownership of such properties, and to hold or
cause to be held title to such properties, on behalf of the Trustee
and Certificateholders. The Master Servicer shall service and
administer the Mortgage Loans in accordance with applicable state
and federal law and shall provide to the Mortgagors any reports
required to be provided to them thereby. Subject to Section 3.17,
the Trustee shall execute, at the written request of the Master
Servicer, and furnish to the Master
Servicer and any Sub-Servicer any
special or limited powers of attorney and other documents necessary
or appropriate to enable the Master Servicer or any Sub-Servicer to
carry out their servicing and administrative duties hereunder;
provided, such limited powers of attorney or other documents shall
be prepared by the Master Servicer and submitted to the Trustee for
execution. The Trustee shall not be liable for the actions of the
Master Servicer or any Sub-Servicers under such powers of
attorney.
Subject to Section 3.09 hereof, in
accordance with the servicing standards of the preceding
paragraphs, the Master Servicer shall advance or cause to be
advanced funds as necessary for the purpose of effecting the timely
payment of taxes and assessments on the Mortgaged Properties, which
advances shall be Servicing Advances reimbursable in the first
instance from related collections from the Mortgagors pursuant to
Section 3.09, and further as provided in Section 3.11. Any cost
incurred by the Master Servicer or by Sub-Servicers in effecting
the timely payment of taxes and assessments on a Mortgaged Property
shall not, for the purpose of calculating distributions to
Certificateholders, be added to the unpaid Stated Principal Balance
of the related Mortgage Loan, notwithstanding that the terms of
such Mortgage Loan so permit.
Notwithstanding anything in this
Agreement to the contrary, the Master Servicer may not make any
future advances with respect to a Mortgage Loan (except as provided
in Section 4.03) and the Master Servicer shall not (i) permit any
modification with respect to any Mortgage Loan that would change
the Mortgage Rate, reduce or increase the Stated Principal Balance
(except for reductions resulting from actual payments of principal)
or change the final maturity date on such Mortgage Loan (unless, as
provided in Section 3.07, the Mortgagor is in default with respect
to the Mortgage Loan or such default is, in the judgment of the
Master Servicer, reasonably foreseeable) or (ii) permit any
modification, waiver or amendment of any term of any Mortgage Loan
that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or Treasury
regulations promulgated thereunder) and (B) any REMIC created
hereunder to fail to qualify as a REMIC under the Code or the
imposition of any tax on “prohibited transactions” or
“contributions after the startup date” under the REMIC
Provisions.
Section
3.02 Sub-Servicing Agreements
Between Master Servicer and Sub-Servicers; Special Servicing
.
(a) The
Master Servicer may enter into Sub-Servicing Agreements with
Sub-Servicers for the servicing and administration of the Mortgage
Loans; provided, however, that such agreements would not result in
a withdrawal or a downgrading by any Rating Agency of the rating on
any Class of Certificates (without regard to the
Policy).
Each Sub-Servicer shall be (i)
authorized and licensed to transact business in the state or states
where the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law to enable
the Sub-Servicer to perform its obligations hereunder and under the
Sub-Servicing Agreement and (ii) a Freddie Mac or Fannie Mae
approved mortgage servicer. Each Sub-Servicing Agreement must
impose on the Sub-Servicer requirements conforming to the
provisions set forth in Section 3.08 and provide for servicing of
the Mortgage Loans consistent with the terms of this Agreement. The
Master Servicer will examine each Sub-Servicing Agreement and will
be familiar with the terms thereof. The terms of any
Sub-Servicing
Agreement will not be inconsistent
with any of the provisions of this Agreement. The Master Servicer
and the Sub-Servicers may enter into and make amendments to the
Sub-Servicing Agreements or enter into different forms of
Sub-Servicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not
violate the provisions of this Agreement, and that no such
amendment or different form shall be made or entered into which
could be reasonably expected to be materially adverse to the
interests of the Certificateholders or the Certificate Insurer
without the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights (excluding any Certificates held by
the Seller, the Master Servicer or any Affiliate thereof) and the
Certificate Insurer (unless the Policy has been canceled upon the
payment in full of the Insured Certificates or a Certificate
Insurer Default has occurred and is continuing); provided, further,
that the consent of the Holders of Certificates entitled to at
least 66% of the Voting Rights (excluding any Certificates held by
the Seller, the Master Servicer or any Affiliate thereof) or the
Certificate Insurer shall not be required (i) to cure any ambiguity
or defect in a Sub-Servicing Agreement, (ii) to correct, modify or
supplement any provisions of a Sub-Servicing Agreement, or (iii) to
make any other provisions with respect to matters or questions
arising under a Sub-Servicing Agreement, which, in each case, shall
not be inconsistent with the provisions of this Agreement. Any
variation without the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights (excluding any
Certificates held by the Seller, the Master Servicer or any
Affiliate thereof) and the Certificate Insurer (unless the Policy
has been canceled upon the payment in full of the Insured
Certificates or a Certificate Insurer Default has occurred and is
continuing) from the provisions set forth in Section 3.08 relating
to insurance or priority requirements of Sub-Servicing Accounts, or
credits and charges to the Sub-Servicing Accounts or the timing and
amount of remittances by the Sub-Servicers to the Master Servicer,
are conclusively deemed to be inconsistent with this Agreement and
therefore prohibited. The Master Servicer shall deliver to the
Trustee copies of all Sub-Servicing Agreements, and any amendments
or modifications thereof, promptly upon the Master Servicer’s
execution and delivery of such instruments.
(b) As
part of its servicing activities hereunder, the Master Servicer,
for the benefit of the Trustee, the Certificate Insurer and the
Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement and of the
Seller under the Mortgage Loan Purchase Agreement, including,
without limitation, any obligation to make advances in respect of
delinquent payments as required by a Sub-Servicing Agreement, or to
purchase a Mortgage Loan on account of missing or defective
documentation or on account of a breach of a representation,
warranty or covenant, as described in Section 2.03(a). Such
enforcement, including, without limitation, the legal prosecution
of claims, termination of Sub-Servicing Agreements, and the pursuit
of other appropriate remedies, shall be in such form and carried
out to such an extent and at such time as the Master Servicer, in
its good faith business judgment, would require were it the owner
of the related Mortgage Loans. The Master Servicer shall pay the
costs of such enforcement at its own expense, and shall be
reimbursed therefor only (i) from a general recovery resulting from
such enforcement, to the extent, if any, that such recovery exceeds
all amounts due in respect of the related Mortgage Loans, or (ii)
from a specific recovery of costs, expenses or attorneys’
fees against the party against whom such enforcement is directed.
Enforcement of the Mortgage Loan Purchase Agreement against the
Seller shall be effected by the Master Servicer to the extent it is
not the Seller, and otherwise by the Trustee in accordance with the
foregoing provisions of this paragraph.
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Section 3.03
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Successor
Sub-Servicers .
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The Master Servicer shall be
entitled to terminate any Sub-Servicing Agreement and the rights
and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such
Sub-Servicing Agreement. In the event of termination of any
Sub-Servicer, all servicing obligations of such Sub-Servicer shall
be assumed simultaneously by the Master Servicer without any act or
deed on the part of such Sub-Servicer or the Master Servicer, and
the Master Servicer either shall service directly the related
Mortgage Loans or shall enter into a Sub-Servicing Agreement with a
successor Sub-Servicer which qualifies under Section
3.02.
Any Sub-Servicing Agreement shall
include the provision that such agreement may be immediately
terminated by the Master Servicer or the Trustee (if the Trustee is
acting as Master Servicer) without fee, in accordance with the
terms of this Agreement, in the event that the Master Servicer (or
the Trustee, if such party is then acting as Master Servicer)
shall, for any reason, no longer be the Master Servicer (including
termination due to a Master Servicer Event of
Termination).
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Section 3.04
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Liability of the Master
Servicer .
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Notwithstanding any Sub-Servicing
Agreement or the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer and a
Sub-Servicer or reference to actions taken through a Sub-Servicer
or otherwise, the Master Servicer shall remain obligated and
primarily liable to the Trustee, the Certificate Insurer and the
Certificateholders for the servicing and administering of the
Mortgage Loans in accordance with the provisions of Section 3.01
without diminution of such obligation or liability by virtue of
such Sub-Servicing Agreements or arrangements or by virtue of
indemnification from the Sub-Servicer and to the same extent and
under the same terms and conditions as if the Master Servicer alone
were servicing and administering the Mortgage Loans. The Master
Servicer shall be entitled to enter into any agreement with a
Sub-Servicer for indemnification of the Master Servicer by such
Sub-Servicer and nothing contained in this Agreement shall be
deemed to limit or modify such indemnification.
Section
3.05
No Contractual Relationship Between Sub-Servicers and the
Trustee or Certificateholders .
Any Sub-Servicing Agreement that may
be entered into and any transactions or services relating to the
Mortgage Loans involving a Sub-Servicer in its capacity as such
shall be deemed to be between the Sub-Servicer and the Master
Servicer alone, and neither the Trustee nor the Certificateholders
shall be deemed parties thereto, and neither the Trustee nor the
Certificateholders shall have any claims, rights, obligations,
duties or liabilities with respect to the Sub-Servicer except as
set forth in Section 3.06. The Master Servicer shall be solely
liable for all fees owed by it to any Sub-Servicer, irrespective of
whether the Master Servicer’s compensation pursuant to this
Agreement is sufficient to pay such fees.
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Section 3.06
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Assumption or Termination of
Sub-Servicing Agreements by Trustee .
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In the event the Master Servicer
shall for any reason no longer be the servicer (including by reason
of the occurrence of a Master Servicer Event of Termination), the
successor Master Servicer or the Trustee if it becomes successor
Master Servicer shall thereupon assume all of the rights and
obligations of the Master Servicer under each Sub-Servicing
Agreement that the Master Servicer may have entered into, unless
the Trustee elects to terminate any Sub-Servicing Agreement in
accordance with its terms as provided in Section 3.03. Upon such
assumption, the Trustee (or the successor Master Servicer appointed
pursuant to Section 7.02) shall be deemed, subject to Section 3.03,
to have assumed all of the departing Master Servicer’s
interest therein and to have replaced the departing Master Servicer
as a party to each Sub-Servicing Agreement to the same extent as if
each Sub-Servicing Agreement had been assigned to the assuming
party, except that (i) the departing Master Servicer shall not
thereby be relieved of any liability or obligations under any
Sub-Servicing Agreement that arose before it ceased to be the
Master Servicer and (ii) neither the Trustee nor any successor
Master Servicer shall be deemed to have assumed any liability or
obligation of the Master Servicer that arose before it ceased to be
the Master Servicer.
The Master Servicer at its expense
shall, upon request of the Trustee, deliver to the assuming party
all documents and records relating to each Sub-Servicing Agreement
and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use
its best efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreements to the assuming party. All Servicing
Transfer Costs shall be paid by the predecessor Master Servicer
(or, if the predecessor Master Servicer is the Trustee, the Master
Servicer that immediately preceded the Trustee) upon presentation
of reasonable documentation of such costs, and if such predecessor
Master Servicer defaults in its obligation to pay such costs, such
costs shall be paid by the successor Master Servicer or the Trustee
(in which case, the successor Master Servicer or the Trustee, as
applicable, shall be entitled to reimbursement therefor from the
assets of the Trust Fund).
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Section 3.07
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Collection of Certain Mortgage
Loan Payments .
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The Master Servicer shall make
reasonable efforts to collect all payments called for under the
terms and provisions of the Mortgage Loans, and shall, to the
extent such procedures shall be consistent with this Agreement and
the terms and provisions of any applicable insurance policies,
follow such collection procedures as it would follow with respect
to mortgage loans comparable to the Mortgage Loans and held for its
own account. Consistent with the foregoing, the Master Servicer may
in its discretion (i) waive any late payment charge or, if
applicable, any penalty interest, or (ii) extend the due dates for
the Monthly Payments due on a Mortgage Note for a period of not
greater than 180 days; provided, however, that any extension
pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation
hereunder, except as provided below. In the event of any such
arrangement pursuant to clause (ii) above, the Master Servicer
shall make timely advances on such Mortgage Loan during such
extension pursuant to Section 4.03 and in accordance with the
amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangement. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in
the judgment of the Master Servicer, such default is reasonably
foreseeable, the Master Servicer,
consistent with the standards set
forth in Section 3.01, may also waive, modify or vary any term of
such Mortgage Loan (including modifications that would change the
Mortgage Rate, forgive the payment of principal or interest or
extend the final maturity date of such Mortgage Loan), accept
payment from the related Mortgagor of an amount less than the
Stated Principal Balance in final satisfaction of such Mortgage
Loan, or consent to the postponement of strict compliance with any
such term or otherwise grant indulgence to any Mortgagor (any and
all such waivers, modifications, variances, forgiveness of
principal or interest, postponements, or indulgences collectively
referred to herein as “forbearance”); provided,
however, that (i) the Master Servicer shall determine that such
forbearance 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, (ii) the Master Servicer shall not
initiate any new lending to such Mortgagor through the Trust Fund
and (iii) in no event shall the Master Servicer grant any such
forbearance (other than as permitted by the second sentence of this
Section) with respect to any one Mortgage Loan more than once in
any 12 month period or more than three times over the life of such
Mortgage Loan. The Master Servicer’s analysis supporting any
forbearance and the conclusion that any forbearance meets the
standards of Section 3.01 shall be reflected in writing in the
Mortgage File.
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Section 3.08
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Sub-Servicing Accounts
.
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In those cases where a Sub-Servicer
is servicing a Mortgage Loan pursuant to a Sub-Servicing Agreement,
the Sub-Servicer will be required to establish and maintain one or
more accounts (collectively, the “Sub-Servicing
Account”). The Sub-Servicing Account shall be an Eligible
Account and shall comply with all requirements of this Agreement
relating to the Collection Account. The Sub-Servicer shall deposit
in the clearing account in which it customarily deposits payments
and collections on mortgage loans in connection with its mortgage
loan servicing activities on a daily basis, and in no event more
than one Business Day after the Sub-Servicer’s receipt
thereof, all proceeds of Mortgage Loans received by the
Sub-Servicer less its servicing compensation to the extent
permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more
than two Business Days after the receipt of such amounts. The
Sub-Servicer shall thereafter deposit such proceeds in the
Collection Account or remit such proceeds to the Master Servicer
for deposit in the Collection Account not later than two Business
Days after the deposit of such amounts in the Sub-Servicing
Account. For purposes of this Agreement, the Master Servicer shall
be deemed to have received payments on the Mortgage Loans when the
Sub-Servicer receives such payments.
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Section 3.09
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Collection of Taxes, Assessments
and Similar Items; Servicing Accounts .
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The Master Servicer shall establish
and maintain, or cause to be established and maintained, one or
more accounts (the “Servicing Accounts”), into which
all Escrow Payments shall be deposited and retained. Servicing
Accounts shall be Eligible Accounts. The Master Servicer shall
deposit in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no
event more than one Business Day after the Master Servicer’s
receipt thereof, all Escrow Payments collected on account of the
Mortgage Loans and shall thereafter deposit such Escrow Payments in
the Servicing Accounts, in no event more than two Business Days
after the
receipt of such Escrow Payments, all
Escrow Payments collected on account of the Mortgage Loans for the
purpose of effecting the timely payment of any such items as
required under the terms of this Agreement. Withdrawals of amounts
from a Servicing Account may be made only to: (i) effect payment of
taxes, assessments and comparable items in a manner and at a time
that assures that the lien priority of the Mortgage is not
jeopardized (or, with respect to the payment of taxes, in a manner
and at a time that avoids the loss of the Mortgaged Property due to
a tax sale or the foreclosure as a result of a tax lien); (ii)
reimburse the Master Servicer (or a Sub-Servicer to the extent
provided in the related Sub-Servicing Agreement) out of related
collections for any Servicing Advances made pursuant to Section
3.01 (with respect to taxes and assessments); (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay
interest, if required and as described below, to Mortgagors on
balances in the Servicing Account; (v) to pay the Master Servicer
excess interest on funds in the Servicing Accounts to the extent
permitted as provided below; or (vi) clear and terminate the
Servicing Account at the termination of the Master Servicer’s
obligations and responsibilities in respect of the Mortgage Loans
under this Agreement in accordance with Article X. In the event the
Master Servicer shall deposit in a Servicing Account any amount not
required to be deposited therein, it may at any time withdraw such
amount from such Servicing Account, any provision herein to the
contrary notwithstanding. The Master Servicer will be responsible
for the administration of the Servicing Accounts and will be
obligated to make Servicing Advances to such accounts when and as
necessary to avoid the lapse of insurance coverage on the Mortgaged
Property, or which the Master Servicer knows, or in the exercise of
the required standard of care of the Master Servicer hereunder
should know, is necessary to avoid the loss of the Mortgaged
Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the Master Servicer
receives notice of a tax lien with respect to the Mortgage being
imposed, the Master Servicer will, within 10 Business Days of such
notice, advance or cause to be advanced funds necessary to
discharge such lien on the Mortgaged Property. As part of its
servicing duties, the Master Servicer or Sub-Servicers shall pay to
the Mortgagors interest on funds in the Servicing Accounts, to the
extent required by law and, to the extent that interest earned on
funds in the Servicing Accounts is insufficient, to pay such
interest from its or their own funds, without any reimbursement
therefor. The Master Servicer may pay to itself any excess interest
on funds in the Servicing Accounts, to the extent such action is in
conformity with the Servicing Standard, is permitted by law and
such amounts are not required to be paid to Mortgagors or used for
any of the other purposes set forth above.
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Section 3.10
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Collection Account; Distribution
Account .
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(a) On
behalf of the Trust Fund, the Master Servicer shall establish and
maintain, or cause to be established and maintained, one or more
accounts (such account or accounts, the “Collection
Account”), held in trust for the benefit of the Trustee, the
Certificate Insurer and the Certificateholders. On behalf of the
Trust Fund, the Master Servicer shall deposit or cause to be
deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no
event more than one Business Day after the Master Servicer’s
receipt thereof, and shall thereafter deposit in the Collection
Account, in no event more than two Business Days after the Master
Servicer’s receipt thereof, as and when received or as
otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date
(other than in respect of principal or interest on the Mortgage
Loans due on or before the Cut-off Date)
or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date, but
allocable to a Remittance Period subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments
(but not Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee)
on each Mortgage Loan;
(iii) all
Insurance Proceeds and Liquidation Proceeds (other than proceeds
collected in respect of any particular REO Property and amounts
paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 10.01) and Subsequent
Recoveries;
(iv) any
amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(v) any
amounts required to be deposited by the Master Servicer pursuant to
the second paragraph of Section 3.14(a) in respect of any blanket
policy deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in
accordance with Section 2.03, Section 3.16(c) or Section 10.01;
and
(vii) all
amounts required to be deposited in connection with Substitution
Adjustments pursuant to Section 2.03.
The foregoing requirements for
deposit in the Collection Account shall be exclusive, it being
understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment
charges, assumption fees, modification fees, insufficient funds
charges and ancillary income need not be deposited by the Master
Servicer in the Collection Account and may be retained by the
Master Servicer as additional compensation. In the event the Master
Servicer shall deposit in the Collection Account any amount not
required to be deposited therein, it may at any time withdraw such
amount from the Collection Account, any provision herein to the
contrary notwithstanding.
(b) On
behalf of the Trust Fund, the Trustee shall establish and maintain
one or more accounts (such account or accounts, the
“Distribution Account”), held in trust for the benefit
of the Trustee, the Certificate Insurer and the Certificateholders.
On behalf of the Trust Fund, the Master Servicer shall deliver to
the Trustee in immediately available funds for deposit in the
Distribution Account on or before 3:00 p.m. New York time (i) on
the Master Servicer Remittance Date, that portion of the Available
Funds (calculated without regard to the references in the
definition thereof to amounts that may be withdrawn from the
Distribution Account) for the related Distribution Date then on
deposit in the Collection Account and any other amounts deposited
hereunder that are required to be deposited in the Distribution
Account funds reimbursable pursuant to Section 3.27, and (ii) on
each Business Day as of the commencement of which the balance on
deposit in the Collection Account exceeds $75,000 following
any
withdrawals pursuant to the next
succeeding sentence, the amount of such excess, but only if the
Collection Account constitutes an Eligible Account solely pursuant
to clause (ii) of the definition of “Eligible Account.”
If the balance on deposit in the Collection Account exceeds $75,000
as of the commencement of business on any Business Day and the
Collection Account constitutes an Eligible Account solely pursuant
to clause (ii) of the definition of “Eligible Account,”
the Master Servicer shall, on or before 3:00 p.m. New York time on
such Business Day, withdraw from the Collection Account any and all
amounts payable or reimbursable to the Master Servicer, the
Trustee, the Seller or any Sub-Servicer pursuant to Section 3.11
and shall pay such amounts to the Persons entitled
thereto
(c) Funds
in the Collection Account and the Distribution Account shall be
invested in Permitted Investments in accordance with the provisions
set forth in Section 3.12. The Master Servicer shall give notice to
the Trustee and the Certificate Insurer of the location of the
Collection Account maintained by it when established and prior to
any change thereof. The Trustee shall give notice to the Master
Servicer, the Certificate Insurer and the Depositor of the location
of the Distribution Account when established and prior to any
change thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the
Master Servicer to the Trustee for deposit in an account (which may
be the Distribution Account and must satisfy the standards for the
Distribution Account as set forth in the definition thereof) and
for all purposes of this Agreement shall be deemed to be a part of
the Collection Account; provided, however, that the Trustee shall
have the sole authority to withdraw any funds held pursuant to this
subsection (d). In the event the Master Servicer shall deliver to
the Trustee for deposit in the Distribution Account any amount not
required to be deposited therein, it may at any time request in
writing that the Trustee withdraw such amount from the Distribution
Account and remit to it any such amount, any provision herein to
the contrary notwithstanding. In addition, the Master Servicer
shall deliver to the Trustee from time to time for deposit, and the
Trustee shall so deposit, in the Distribution Account:
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(i)
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any Advances, as required pursuant
to Section 4.03;
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(ii) any
amounts required to be deposited pursuant to Section 3.23(d) or (f)
in connection with any REO Property;
(iii) any
amounts to be paid in connection with a purchase of Mortgage Loans
and REO Properties pursuant to Section 10.01;
(iv) any
Compensating Interest to be deposited pursuant to Section 3.24 in
connection with any Prepayment Interest Shortfall;
(v) any
amounts required to be paid or reimbursed to the Trustee pursuant
to the Agreement (to the extent required to be paid by the Master
Servicer), including, but not limited to Section 3.06 and Section
7.02 (to the extent required to be paid by the Master Servicer);
and
(vi) any
amounts required to be deposited pursuant to Section 3.12 in
connection with any losses realized on Permitted Investments with
respect to funds held
in the Distribution Account (other
than any such losses incurred during the Trustee Float
Period).
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Section 3.11
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Withdrawals from the Collection
Account and Distribution Account .
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(a) The
Master Servicer shall, from time to time, make withdrawals from the
Collection Account for any of the following purposes or as
described in Section 4.03:
(i) to
remit to the Trustee for deposit in the Distribution Account the
amounts required to be so remitted pursuant to Section 3.10(b) or
permitted to be so remitted pursuant to the first sentence of
Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Master Servicer for (a) any
unreimbursed Advances to the extent of amounts received which
represent Late Collections (net of the related Servicing Fees) of
Monthly Payments, Liquidation Proceeds and Insurance Proceeds on
Mortgage Loans with respect to which such Advances were made in
accordance with the provisions of Section 4.03 or (b) any
unreimbursed Advances with respect to the final liquidation of a
Mortgage Loan that are Nonrecoverable Advances, but only to the
extent that Late Collections, Liquidation Proceeds, Subsequent
Recoveries and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Master Servicer for
such unreimbursed Advances;
(iii) subject
to Section 3.16(d), to pay the Master Servicer or any Sub-Servicer
(a) any unpaid Servicing Fees, (b) any unreimbursed Servicing
Advances with respect to each Mortgage Loan, but only to the extent
of any Late Collections, Liquidation Proceeds and Insurance
Proceeds received with respect to such Mortgage Loan, and (c) any
Servicing Advances with respect to the final liquidation of a
Mortgage Loan that are Nonrecoverable Advances, but only to the
extent that Late Collections, Liquidation Proceeds and Insurance
Proceeds received with respect to such Mortgage Loan are
insufficient to reimburse the Master Servicer or any Sub-Servicer
for Servicing Advances;
(iv) to
pay to the Master Servicer as servicing compensation (in addition
to the Servicing Fee) on the Master Servicer Remittance Date any
interest or investment income earned on funds deposited in the
Collection Account;
(v) to
pay to the Seller or the Master Servicer, as the case may be, with
respect to each Mortgage Loan that has previously been purchased or
replaced pursuant to Section 2.03 or Section 3.16(c) all amounts
received thereon subsequent to the date of purchase or
substitution, as the case may be;
(vi) to
reimburse the Master Servicer for any Advance or Servicing Advance
previously made which the Master Servicer has determined to be a
Nonrecoverable Advance in accordance with the provisions of Section
4.03;
(vii) to
pay, or to reimburse the Master Servicer for Servicing Advances in
respect of, expenses incurred in connection with any Mortgage Loan
pursuant to Section 3.16(b);
(viii) to
reimburse the Master Servicer or the Depositor for expenses
incurred by or reimbursable to the Master Servicer or the Depositor
pursuant to Section 6.03;
(ix) to
reimburse the Master Servicer or the Trustee, as the case may be,
for expenses reasonably incurred in connection with any breach or
defect giving rise to the purchase obligation under Section 2.03 of
this Agreement, including any expenses arising out of the
enforcement of the purchase obligation;
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(x)
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to pay itself any Prepayment
Interest Excess;
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(xi)
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to pay itself to the extent
permitted under Section 3.06;
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(xii) to
withdraw any funds deposited in the Collection Account in error;
and
(xiii) to
clear and terminate the Collection Account pursuant to Section
10.01.
The foregoing requirements for
withdrawal from the Collection Account shall be exclusive. In the
event the Master Servicer shall deposit in the Collection Account
any amount not required to be deposited therein, it may at any time
withdraw such amount from the Collection Account, any provision
herein to the contrary notwithstanding.
The Master Servicer shall keep and
maintain separate accounting, on a Mortgage Loan by Mortgage Loan
basis, for the purpose of justifying any withdrawal from the
Collection Account, to the extent held by or on behalf of it,
pursuant to subclauses (ii), (iii), (iv), (v), (vi) and (vii)
above. The Master Servicer shall provide written notification to
the Trustee, on or prior to the next succeeding Master Servicer
Remittance Date, upon making any withdrawals from the Collection
Account pursuant to subclause (vi) above; provided that an
Officer’s Certificate in the form described under Section
4.03(d) shall suffice for such written notification to the Trustee
in respect hereof.
(b) The
Trustee shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without
priority:
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(i)
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to make distributions in accordance
with Section 4.01;
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(ii) to
pay itself the Trustee Fee pursuant to Section 4.01 and Section
8.05;
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(iii)
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to pay any amounts in respect of
taxes pursuant to Section 9.01(g);
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(iv) to
clear and terminate the Distribution Account pursuant to Section
10.01;
(v) to
pay any amounts required to be paid to the Trustee pursuant to this
Agreement, including but not limited to funds required to be paid
pursuant to Section 2.01, Section 3.06, Section 7.02, Section 8.05
and Section 9.01(c);
(vi) to
pay to itself as additional compensation any interest or investment
income earned on funds on deposit in the Distribution Account
during the Trustee Float Period to the extent provided in Section
3.12(b);
(vii) to
pay to the Master Servicer as servicing compensation any interest
or investment income earned on funds on deposit in the Distribution
Account (other than during the Trustee Float Period) to the extent
provided in Section 3.12(b);
(viii) to
withdraw any funds deposited in the Distribution Account in error;
and
(ix) to
make distributions to the Swap Account in accordance with Section
4.07.
Section 3.12
Investment of Funds in the Collection Account and the
Distribution Account .
(a) The
Master Servicer shall direct any depository institution maintaining
the Collection Account, (except with respect to the Trustee Float
Period) and the Distribution Account, and the Trustee may direct
any depository institution maintaining (during the Trustee Float
Period) the Distribution Account (each such account, for purposes
of this Section 3.12, an “Investment Account”) to
invest the funds in such Investment Account in one or more
Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required
to be withdrawn from such account pursuant to this Agreement, if a
Person other than the Trustee is the obligor thereon or if such
investment is managed or advised by a Person other than the Trustee
or an Affiliate of the Trustee, and (ii) no later than the date on
which such funds are required to be withdrawn from such account
pursuant to this Agreement, if the Trustee is the obligor thereon.
Funds in the Distribution Account may also be held uninvested. All
such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account
shall be made in the name of the Trustee (in its capacity as such),
or in the name of a nominee of the Trustee. The Trustee shall be
entitled to sole possession (except with respect to investment
direction of funds held in the Collection Account and, other than
with respect to the Trustee Float Period, the Distribution Account
and any income realized thereon) over each such investment, and any
certificate or other instrument evidencing any such investment
shall be delivered directly to the Trustee or its agent, together
with any document of transfer necessary to transfer title to such
investment to the Trustee or its nominee. In the event amounts on
deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Trustee
shall:
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(x)
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consistent with any notice required
to be given thereunder, demand that payment thereon be made on the
last day such Permitted Investment may otherwise mature hereunder
in an amount equal to the lesser of (1) all amounts then payable
thereunder and (2) the amount required to be withdrawn on such
date; and
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(y)
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demand payment of all amounts due
thereunder promptly upon determination by a Responsible Officer of
the Trustee that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account, it being understood and agreed that the
Trustee shall have no duty to monitor investments in the Investment
Accounts.
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(b) All
income realized from the investment of funds on deposit in the
Collection Account, the Distribution Account (except with respect
to the Trustee Float Period), and any REO Account held by or on
behalf of the Master Servicer shall be for the benefit of the
Master Servicer and shall be subject to its withdrawal in
accordance with Section 3.11 or Section 3.23, as applicable. All
income realized from the investment of funds on deposit in the
Distribution Account during the Trustee Float Period held by or on
behalf of the Trustee shall be for the benefit of the Trustee and
shall be subject to its withdrawal in accordance with Section 3.12.
The Master Servicer shall deposit in the Collection Account, the
Distribution Account (except with respect to the Trustee Float
Period) or any REO Account, as applicable, the amount of any loss
of principal incurred in respect of any such Permitted Investment
made with funds in such account immediately upon realization of
such loss. The Trustee shall deposit in the Distribution Account
the amount of any loss of principal incurred in respect of any such
Permitted Investment made with funds in such account during the
Trustee Float Period immediately upon realization of such loss. The
Trustee or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Trustee’s
economic self-interest for (i) serving as investment adviser,
administrator, shareholder, servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments,
(ii) using Affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted
Investments. The Trustee does not guarantee the performance of any
Permitted Investment.
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Section 3.13
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[Reserved]
.
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Section 3.14
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Maintenance of Errors and
Omissions and Fidelity Coverage .
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The Master Servicer shall keep in
force during the term of this Agreement a policy or policies of
insurance covering errors and omissions for failure in the
performance of the Master Servicer’s obligations under this
Agreement, which policy or policies shall be in such form and
amount that would meet the requirements of Fannie Mae or Freddie
Mac if it were the purchaser of the Mortgage Loans, unless the
Master Servicer has obtained a waiver of such requirements from
Fannie Mae or Freddie Mac. The Master Servicer shall also maintain
a fidelity bond in the form and amount that would meet the
requirements of Fannie Mae or Freddie Mac, unless the Master
Servicer has obtained a waiver of such requirements from Fannie Mae
or Freddie Mac. The Master Servicer shall be deemed to have
complied with this provision if an Affiliate of the Master Servicer
has such errors and omissions and fidelity bond coverage and, by
the terms of
such insurance policy or fidelity
bond, the coverage afforded thereunder extends to the Master
Servicer. Any such errors and omissions policy and fidelity bond
shall by its terms not be cancelable without thirty days’
prior written notice to the Trustee. The Master Servicer shall also
cause each Sub-Servicer to maintain a policy of insurance covering
errors and omissions and a fidelity bond which would meet such
requirements.
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Section 3.15
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Enforcement of Due-On-Sale
Clauses; Assumption Agreements .
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The Master Servicer will, to the
extent it has knowledge of any conveyance or prospective conveyance
of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor
remains or is to remain liable under the Mortgage Note and/or the
Mortgage), exercise its rights to accelerate the maturity of such
Mortgage Loan under the “due-on-sale” clause, if any,
applicable thereto; provided, however, that the Master Servicer
shall not be required to take such action 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 the Mortgage related thereto and the consent of the mortgagee
under the Mortgage Note or the Mortgage is not otherwise so
required under the Mortgage Note or the Mortgage as a condition to
the transfer. The Master Servicer shall not exercise any such
rights if prohibited by law from doing so. If the Master Servicer
reasonably believes it is unable under applicable law to enforce
such “due-on-sale” clause, or if any of the other
conditions set forth in the proviso to the preceding sentence
apply, the Master Servicer will enter into an assumption and
modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant
to which such person becomes liable under the Mortgage Note and, to
the extent permitted by applicable state law, the Mortgagor remains
liable thereon. The Master Servicer is also authorized to enter
into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability
and such person is substituted as the Mortgagor and becomes liable
under the Mortgage Note; provided, that no such substitution shall
be effective unless such person satisfies the underwriting criteria
of the Master Servicer and has a credit risk rating at least equal
to that of the original Mortgagor. In connection with any
assumption or substitution, the Master Servicer shall apply such
underwriting standards and follow such practices and procedures as
shall be normal and usual in its general mortgage servicing
activities and as it applies to other mortgage loans owned solely
by it. Any fee collected by the Master Servicer in respect of an
assumption, modification or substitution of liability agreement
shall be retained by the Master Servicer as additional servicing
compensation. In connection with any such assumption, no material
term of the Mortgage Note (including but not limited to the related
Mortgage Rate and the amount of the Monthly Payment) may be amended
or modified, except as otherwise required pursuant to the terms
thereof. The Master Servicer shall notify the Trustee that any such
substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of
such substitution, modification or assumption agreement, which
document shall be added to the related Mortgage File and shall, for
all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a
part thereof.
Notwithstanding the foregoing
paragraph or any other provision of this Agreement, the Master
Servicer shall not be deemed to be in default, breach or any other
violation of its obligations hereunder by reason of any assumption
of a Mortgage Loan by operation of law or by
the terms of the Mortgage Note or
any assumption which the Master Servicer may be restricted by law
from preventing, for any reason whatsoever. For purposes of this
Section 3.15, the term “assumption” is deemed to also
include a sale (of the Mortgaged Property) subject to the Mortgage
that is not accompanied by an assumption or substitution of
liability agreement.
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Section 3.16
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Realization Upon Defaulted
Mortgage Loans .
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(a) The
Master Servicer shall use reasonable efforts, in accordance with
the Servicing Standard, to foreclose upon or otherwise comparably
convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. The Master Servicer shall be
responsible for all costs and expenses incurred by it in any such
proceedings; provided, however, that such costs and expenses will
be recoverable as Servicing Advances by the Master Servicer as
contemplated in Section 3.11 and Section 3.23. The foregoing is
subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the
Master Servicer shall not be required to expend its own funds
toward the restoration of such property unless it shall determine
in its discretion that such restoration will increase the proceeds
of liquidation of the related Mortgage Loan after reimbursement to
itself for such expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any
