Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc.,
Purchaser
and
IndyMac Bank, F.S.B.,
Company
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SELLER'S WARRANTIES AND SERVICING AGREEMENT
Dated as of September 1, 2005
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Conventional Residential Fixed and Adjustable Rate Mortgage Loans
Group No. 2005-1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS;
DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage Files;
Maintenance of Servicing Files............................................17
Section 2.02 Books and Records; Transfers of Mortgage Loans.............................17
Section 2.03 Delivery of Documents......................................................18
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties.....................................19
Section 3.02 Representations and Warranties Regarding Individual Mortgage Loans.........22
Section 3.03 Remedies for Breach of Representations and Warranties......................36
Section 3.04 Restrictions and Requirements Applicable in the Event that a Mortgage
Loan is Acquired by a REMIC...............................................38
Section 3.05 Review of Mortgage Loans...................................................39
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer.................................................40
Section 4.02 Liquidation of Mortgage Loans..............................................41
Section 4.03 Collection of Mortgage Loan Payments.......................................42
Section 4.04 Establishment of and Deposits to Custodial Account.........................42
Section 4.05 Permitted Withdrawals From Custodial Account...............................44
Section 4.06 Establishment of and Deposits to Escrow Account............................45
Section 4.07 Permitted Withdrawals From Escrow Account..................................45
Section 4.08 Payment of Taxes, Insurance and Other Charges..............................46
Section 4.09 Protection of Accounts.....................................................47
Section 4.10 Maintenance of Hazard Insurance............................................47
Section 4.11 Maintenance of Mortgage Impairment Insurance...............................49
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Section 4.12 Maintenance of Fidelity Bond and Errors and Omissions Insurance............49
Section 4.13 Inspections................................................................50
Section 4.14 Restoration of Mortgaged Property..........................................50
Section 4.15 Maintenance of PMI Policy; Claims..........................................50
Section 4.16 Title, Management and Disposition of REO Property..........................52
Section 4.17 Real Estate Owned Reports..................................................53
Section 4.18 Liquidation Reports........................................................53
Section 4.19 Reports of Foreclosures and Abandonments of Mortgaged Property.............53
Section 4.20 Notification of Adjustments................................................53
Section 4.21 Credit Reporting...........................................................54
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances................................................................54
Section 5.02 Statements to Purchaser....................................................55
Section 5.03 Monthly Advances by Company................................................55
[Section 5.04 Due Dates Other Than the First of the Month.]..............................56
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property............................................56
Section 6.02 Satisfaction of Mortgages and Release of Mortgage Files....................57
Section 6.03 Servicing Compensation.....................................................57
Section 6.04 Annual Statement as to Compliance..........................................58
Section 6.05 Annual Independent Public Accountants' Servicing Report....................58
Section 6.06 Right to Examine Company Records...........................................59
ARTICLE VII
PASS-THROUGH TRANSFER
Section 7.01 Removal of Mortgage Loans from Inclusion Under this Agreement Upon a
Pass-Through Transfer on One or More Reconstitution Dates.................60
Section 7.02 Purchaser's Repurchase and Indemnification Obligations.....................63
ARTICLE VIII
COMPANY TO COOPERATE
Section 8.01 Provision of Information...................................................64
Section 8.02 Financial Statements; Servicing Facility...................................64
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ARTICLE IX
THE COMPANY
Section 9.01 Indemnification; Third Party Claims........................................65
Section 9.02 Merger or Consolidation of the Company.....................................65
Section 9.03 Limitation on Liability of Company and Others..............................66
Section 9.04 Limitation on Resignation and Assignment by Company........................66
ARTICLE X
DEFAULT
Section 10.01 Events of Default..........................................................67
Section 10.02 Waiver of Defaults.........................................................69
ARTICLE XI
TERMINATION
Section 11.01 Termination................................................................69
Section 11.02 Termination Without Cause..................................................69
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company.......................................................70
Section 12.02 Amendment..................................................................71
Section 12.03 Governing Law..............................................................71
Section 12.04 Duration of Agreement......................................................71
Section 12.05 Notices....................................................................71
Section 12.06 Severability of Provisions.................................................72
Section 12.07 Relationship of Parties....................................................72
Section 12.08 Execution; Successors and Assigns..........................................72
Section 12.09 Recordation of Assignments of Mortgage.....................................72
Section 12.10 Assignment by Purchaser....................................................72
Section 12.11 No Personal Solicitation...................................................72
Section 12.12 Appointment and Designation of Master Servicer.............................73
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EXHIBITS
EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B CONTENTS OF EACH MORTGAGE FILE
EXHIBIT C MORTGAGE LOAN DOCUMENTS
EXHIBIT D-1 FORM OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT D-2 FORM OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT E-1 FORM OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT E-2 FORM OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT F FORM OF MONTHLY REMITTANCE ADVICE
EXHIBIT G FORM OF ASSIGNMENT AND ASSUMPTION
EXHIBIT H UNDERWRITING GUIDELINES
EXHIBIT I ANNUAL CERTIFICATION
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This is a Seller's Warranties and Servicing Agreement for
conventional fixed and adjustable rate residential first lien mortgage loans
(the "Mortgage Loans") on a servicing retained basis as described herein, dated
and effective as of September 1, 2005, and is executed between Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings Inc., as purchaser (the "Purchaser"), and
IndyMac Bank, F.S.B., as seller and servicer (the "Company").
W I T N E S S E T H:
WHEREAS, from time to time, the Company desires to sell to the
Purchaser, and from time to time, the Purchaser desires to purchase from the
Company certain conventional fixed and adjustable rate residential first lien
mortgage loans (the "Mortgage Loans") on a servicing retained basis as described
herein, and which shall be delivered as whole loans;
WHEREAS, each Mortgage Loan is secured by a mortgage, deed of
trust or other security instrument creating a first lien on a residential
dwelling located in the jurisdiction indicated on the Mortgage Loan Schedule,
which is annexed hereto as Exhibit A; and
WHEREAS, the Purchaser and the Company wish to prescribe the
manner of purchase of the Mortgage Loans and the management, servicing and
control of the Mortgage Loans.
NOW, THEREFORE, in consideration of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Purchaser and the
Company agree as follows:
ARTICLE I
DEFINITIONS
Whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
Accepted Servicing Practices: With respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property, or, with respect to a
Cooperative Loan, where the related Cooperative Project, is located.
Acknowledgment Agreement: The document, substantially in the form
of Exhibit I, to be executed by the Purchaser and the Company on or prior to
each Closing Date which document shall amend the Mortgage Loan Schedule attached
as Exhibit A hereto to reflect the addition of Mortgage Loans to such Exhibit A
and which document reflects the addition of Mortgage Loans which are subject to
the terms and conditions of this Agreement.
Agency Transfer: The sale or transfer by Purchaser of some or all
of the Mortgage Loans to Xxxxxx Xxx under its Cash Purchase Program or its MBS
Swap Program (Special Servicing Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx
Xxxx Program or Gold PC Program, retaining the Company as "servicer thereunder".
Agreement: This Seller's Warranties and Servicing Agreement and
all amendments hereof and supplements hereto.
ALTA: The American Land Title Association or any successor
thereto.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property or Cooperative Unit, as applicable.
Appropriate Federal Banking Agency: Appropriate Federal Banking
Agency shall have the meaning ascribed to it by Section 1813(q) of Title 12 of
the United States Code, as amended from time to time.
Approved Flood Insurance Contract Provider: A flood insurance
contract provider acceptable to the Purchaser or its designee, in its sole
discretion.
Approved Tax Service Contract Provider: First American Real
Estate Tax Service.
ARM Mortgage Loan: An adjustable rate Mortgage Loan.
Assignment and Conveyance: An Assignment and Conveyance in the
form of Exhibit 6 to the Mortgage Loan Purchase Agreement dated as of the date
hereof, by and between the Seller and the Purchaser.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to the Purchaser.
BIF: The Bank Insurance Fund, or any successor thereto.
BPO:...A broker's price opinion with respect to a Mortgaged
Property.
Business Day: Any day other than (i) a Saturday or Sunday, or
(ii) a day on which banking and savings and loan institutions in the States of
New York or California are authorized or obligated by law or executive order to
be closed.
Closing Date: The date or dates set forth on the related Purchase
Price and Terms Letter on which the Purchaser from time to time shall purchase
and the Company from time to time shall sell, the Mortgage Loans listed on the
related Mortgage Loan Schedule.
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Code: The Internal Revenue Code of 1986, as it may be amended
from time to time or any successor statute thereto, and applicable U.S.
Department of the Treasury regulations issued pursuant thereto.
Commission: The United States Securities and Exchange Commission.
Company: IndyMac Bank, F.S.B., or its successor in interest or
assigns, or any successor to the Company under this Agreement appointed as
herein provided.
Condemnation Proceeds: All awards or settlements in respect of a
Mortgaged Property, whether permanent or temporary, partial or entire, by
exercise of the power of eminent domain or condemnation, to the extent not
required to be released to a Mortgagor in accordance with the terms of the
related Mortgage Loan Documents.
Cooperative Corporation: The cooperative apartment corporation
that holds legal title to a Cooperative Project and grants occupancy rights to
units therein to stockholders through Proprietary Leases or similar
arrangements.
Cooperative Loan: A Mortgage Loan identified as such on the
applicable Mortgage Loan Schedule that is secured by a first lien on and a
perfected security interest in Cooperative Shares and the related Proprietary
Lease granting exclusive rights to occupy the related Cooperative Unit in the
building owned by the related Cooperative Corporation.
Cooperative Project: All real property owned by a Cooperative
Corporation including the land, separate dwelling units and all common elements.
Cooperative Shares: The shares of stock issued by a Cooperative
Corporation and allocated to a Cooperative Unit and represented by a stock
certificate.
Cooperative Unit: Means a specific unit in a Cooperative Project.
Custodial Agreement: That certain Custodial Agreement, dated as
of September 1, 1999, by and between the Purchaser and the Custodian.
Custodian: U.S. Bank Trust National Association.
Cut-off Date: The date set forth on the related Purchase Price
and Terms Letter.
Deleted Mortgage Loan: A Mortgage Loan which is repurchased by
the Company in accordance with the terms of this Agreement and which is, in the
case of a substitution pursuant to Section 3.03, replaced or to be replaced with
a Qualified Substitute Mortgage Loan.
Determination Date: The 15th day (or if such day is not a
Business Day, the Business Day immediately preceding such 15th day) of the month
of the related Remittance Date.
Disqualified Organization: An organization defined as such in
Section 860E(e) of the Code.
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Due Date: The day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace. With respect to the
Mortgage Loans for which payment from the Mortgagor is due on a day other than
the first day of the month, such Mortgage Loans will be treated as if the
Monthly Payment is due on the first day of the month of such Due Date.
Due Period: With respect to each Remittance Date, the period
commencing on the second day of the month preceding the month of the Remittance
Date and ending on the first day of the month of the Remittance Date.
Eligible Investments: Any one or more of the obligations and
securities listed below which investment provides for a date of maturity not
later than the Determination Date in each month:
(i) direct obligations of, and obligations fully guaranteed by,
the United States of America, or any agency or instrumentality of the
United States of America the obligations of which are backed by the full
faith and credit of the United States of America; and
(ii) federal funds, demand and time deposits in, certificates
of deposits of, or bankers' acceptances issued by, any depository
institution or trust company incorporated or organized under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal and/or state banking authorities,
so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term
debt obligations of such depository institution or trust company (or, in
the case of a depository institution or trust company which is the
principal subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) are rated "P-1" by
Xxxxx'x Investors Service, Inc. and the long-term debt obligations of
such holding company) are rated "Aa" by Xxxxx'x Investors Service, Inc.
and the long-term debt obligations of such depository institution or
trust company (or, in the case of a depository institution or trust
company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least
"Aa" by Xxxxx'x Investors Service, Inc.;
provided, however, that no such instrument shall be an Eligible Investment if
such instrument evidences either (i) a right to receive only interest payments
with respect to the obligations underlying such instrument, or (ii) both
principal and interest payments derived from obligations underlying such
instrument and the principal and interest payments with respect to such
instrument provide a yield to maturity of greater than 120% of the yield to
maturity at par of such underlying obligations.
Errors and Omissions Insurance Policy: An errors and omissions
insurance policy to be maintained by the Company pursuant to Section 4.12.
Escrow Account: The separate account or accounts created and
maintained pursuant to Section 4.06.
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Escrow Mortgage Loan: A Mortgage Loan for which Escrow Payments
are required to be escrowed by the Mortgage or any other document.
Escrow Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other related
document.
Event of Default: Any one of the conditions or circumstances
enumerated in Section 10.01.
Exception Mortgage Loan: A Mortgage Loan which was originated as
an exception to the Company's underwriting guidelines in effect at the time of
origination, as attached hereto as Exhibit H.
Xxxxxx Mae: Xxxxxx Xxx, or any successor thereto.
Xxxxxx Mae Guides: The Xxxxxx Xxx Xxxxxxx' Guide and the Xxxxxx
Mae Servicers' Guide and all amendments or additions thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FICO Score: A statistical credit score obtained by mortgage
lenders in connection with the loan application to help assess a borrower's
credit worthiness.
Fidelity Bond: A fidelity bond to be maintained by the Company
pursuant to Section 4.12.
First Remittance Date: With respect to each Mortgage Loan, the
18th day of the month following the month in which the related Cut-off Date
occurs, or if such 18th day is not a Business Day, the first Business Day
immediately following such 18th day.
Xxxxxxx Mac: Xxxxxxx Mac, or any successor thereto.
Gross Margin: With respect to each ARM Mortgage Loan, the fixed
percentage amount set forth in the related Mortgage Note.
Index: With respect to each ARM Mortgage Loan, the index set
forth in the related Mortgage Note.
Insurance Proceeds: With respect to each Mortgage Loan, proceeds
of insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
Insured Depository Institution: Insured Depository Institution
shall have the meaning ascribed to such term by Section 1813(c)(2) of Title 12
of the United States Code, as amended from time to time.
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Interest Rate Adjustment Date: The date on which an adjustment to
the Mortgage Interest Rate with respect to each ARM Mortgage Loan becomes
effective
Lifetime Rate Cap: With respect to each ARM Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum Mortgage
Interest Rate thereunder.
Liquidation Proceeds: Cash received in connection with the
liquidation of a defaulted Mortgage Loan, whether through the sale or assignment
of such Mortgage Loan, trustee's sale, foreclosure sale or otherwise, or the
sale of the related Mortgaged Property if the Mortgaged Property is acquired in
satisfaction of the Mortgage Loan.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan,
the ratio of the Stated Principal Balance of the Mortgage Loan as of the Cut-off
Date (unless otherwise indicated) to the lesser of (a) the Appraised Value of
the Mortgaged Property and (b) if the Mortgage Loan was made to finance the
acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property, expressed as a percentage.
LPMI Fee: With respect to each Mortgage Loan which has an LPMI
Policy, the premium due on the related LPMI Policy.
LPMI Policy: A policy of primary mortgage guaranty insurance
issued by a Qualified Insurer.
Monthly Advance: The portion of Monthly Payment delinquent with
respect to each Mortgage Loan at the close of business on the Determination Date
required to be advanced by the Company pursuant to Section 5.03 on the Business
Day immediately preceding the Remittance Date of the related month.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: The mortgage, deed of trust, Pledge Agreement or other
instrument securing a Mortgage Note, which creates a first lien on an
unsubordinated estate in fee simple in real property securing the Mortgage Note,
or in the case of each Cooperative Loan creates a first priority security
interest on the Cooperative Shares and Proprietary Lease securing the Mortgage
Note.
Mortgage File: The items pertaining to a particular Mortgage Loan
referred to in Exhibit B annexed hereto, and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
Mortgage Impairment Insurance Policy: A mortgage impairment or
blanket hazard insurance policy as described in Section 4.11.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note.
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Mortgage Loan: An individual Mortgage Loan which is the subject
of this Agreement, each Mortgage Loan originally sold and subject to this
Agreement being identified on the related Mortgage Loan Schedule, which Mortgage
Loan includes without limitation the Mortgage File, the Monthly Payments,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan.
Mortgage Loan Documents: The documents listed in Exhibit C
hereto.
Mortgage Loan Package: A pool of Mortgage Loans sold to the
Purchaser by the Company on a Closing Date.
Mortgage Loan Remittance Rate: With respect to each Mortgage
Loan, the annual rate of interest remitted to the Purchaser, which shall be
equal to the Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage Loan Schedule: With respect to each Mortgage Loan
Package, a schedule of Mortgage Loans annexed hereto as Exhibit A, each such
schedule setting forth the following information with respect to each Mortgage
Loan: (1) the Seller's Mortgage Loan identifying number; (2) the Mortgagor's and
Co-Mortgagor's (if applicable) names; (3) the street address of the Mortgaged
Property, including the city, state, zip code, county, lot number, block number
and section number; (4) a code indicating whether the Mortgaged Property is a
single family residence, a 2 family dwelling, a 3-4 family dwelling, a
manufactured home, a PUD, a townhouse, a unit in a condominium project, a
co-operative, a mixed-use property, land, or a non-residential property; (5) a
code indicating the Mortgage Loan is a fixed rate or adjustable rate Mortgage
Loan (to be provided in accordance with Standard and Poor's loan type
requirements-Field 14); (6) product description (to be provided in accordance
with Standard and Poor's description categories-Field 7); (7) a code indicating
the lien status of the Mortgage Loan; (8) the original months to maturity or the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule, and if different, the maturity expressed in the
same manner but based on the actual amortization schedule; (9) the Loan-to-Value
Ratio at origination; (10) the combined Loan-to-Value Ratio at origination; (11)
the Mortgage Interest Rate as of the Cut-off Date; (12) the payment and rate
adjustment frequencies (if applicable); (13) the Index (if applicable); (14) the
initial Interest Rate Adjustment Date (if applicable); (15) the initial payment
adjustment date (if applicable); (16) the next Interest Rate Adjustment Date (if
applicable); (17) the next payment adjustment date (if applicable); (18) the
Gross Margin (if applicable); (19) the minimum Mortgage Interest Rate under the
terms of the Mortgage Note (if applicable); (20) Mortgage Interest Rate
adjustment frequencies (if applicable); (21) the maximum Mortgage Interest Rate
under the terms of the Mortgage Note (if applicable); (22) the Periodic Rate cap
at the initial Interest Rate Adjustment Date (if applicable); (23) the Periodic
Rate Cap at all subsequent Interest Rate Adjustment Dates (if applicable); (24)
the Lifetime Rate Cap (if applicable); (25) the rounding provisions under the
terms of the Mortgage Note (if applicable); (26) the lookback provisions (#of
days) under the terms of the Mortgage Note (if applicable); (27) negative
amortization indicator and limit; (28) the date on which the first Monthly
Payment is due; (29) the original term of the Mortgage Loan; (30) the stated
maturity date; (31) the amount of the Monthly Payment; (32) the annual payment
cap expressed as a percentage (for ARM Mortgage Loans only); (33) the next Due
Date as of the Cut-off Date;
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(34) the original principal amount of the Mortgage Loan; (35) the senior and
subordinate balances (if applicable); (36) the closing date of the Mortgage
Loan; (37) the principal balance of the Mortgage Loan as of the close of
business on the Cut-off Date; after deduction of payments of principal actually
received on or before the Cut-off Date; (38) monthly payment histories on
current and prior mortgages (24 months if available); (39) prior foreclosure
history (for the past 24 months); (40) prior bankruptcy history (for the past 24
months); (41) the Mortgage Loan purpose code; (42) the occupancy code; (43) the
Mortgage Loan documentation type, (to be provided in conformance with Standard
and Poor's documentation categories- Field 5); (44) Asset Verification (purchase
money Mortgage Loans only), (yes or no); (45) a code indicating the Credit Grade
of the Mortgage Loan; (46) the debt to income ratio; (47) the Mortgagor's and
co-Mortgagor's (if applicable) social security numbers; (48) the Mortgagor's and
co-Mortgagor's (if applicable) original FICO score and the Next Generation FICO
score for new credit scores; (49) the date of the FICO score; (50) the
Mortgagor's mailing address if different from Number (3) above; (51) the
Mortgagor's home telephone number; (52) the Mortgagor's business telephone
number; (53) the purchase price of the Mortgaged Property (if a purchase); (54)
the appraisal date and the Appraised Value of the Mortgaged Property; (55) the
Mortgagor's and Co-Mortgagor's (if applicable) race; (56) the Mortgagor's and
Co-Mortgagor's (if applicable) gender; (57) the Mortgagor's and Co-Mortgagor's
(if applicable) date of birth; (58) the number of bedrooms; (59) rental income
per unit; (60) the combined annual income; (61) the application date; (62) the
broker's name; (63) the broker's firm name; (64) the appraiser's name; (65) the
appraiser's firm name; (66) the settlement agent; (67) the origination channel
(wholesale, retail, or correspondent); (68) flood insurance contract provider;
(69) tax service contract provider; (70) number of units; (71) as of date; (72)
amortization term; (73) balloon flag; (74) prepayment penalty flag; (75)
prepayment penalty term and prepayment penalty description (i.e.- 6 months
interest, set percentage of UPB); (76) payment history current Mortgage Loan;
(77) payment history previous mortgage loan and all refinanced mortgage loans;
(78) mortgage insurance provider, or code for LPMI; (79) PMI Policy coverage
percentage; (80) PMI Policy cost; (81) PMI Policy certificate number; (82)
number of Mortgagors; (83) first time home buyer flag; (84) the year in which
the Mortgaged Property was built; (85) the monthly tax and insurance payment;
(86) the monthly servicing fee; (87) the escrow balance as of the Cut-off Date;
(88) the MIN number assigned to each Mortgage Loan, if applicable; (89) a code
indicating the Appraisal Type (Tax Assessment, BPO, Drive-By Form 704, URAR,
Form 2065, Form 2055 (Exterior only), Form 2055 (Interior Inspection), or AVM;
(90) if the Appraisal Type in #89 is an AVM, then a description of the AVM type;
(91) a code indicating whether the Borrower(s) is self-employed (yes or no);
(92) a section 32 flag and the origination points and or fees; (93) a code
indicating if the Mortgage Loan is assumable (yes or no); and (94) a code
indicating if the Mortgage Loan is a High Cost Loan as such terms are defined in
the then current Standard & Poor's LEVELS(R) Glossary. With respect to the
Mortgage Loans in each Mortgage Loan Package in the aggregate, the related
Mortgage Loan Schedule shall set forth the following information, as of the
related Cut-off Date: (1) the number of Mortgage Loans; (2) the current
aggregate outstanding principal balance of the Mortgage Loans; (3) the weighted
average Mortgage Interest Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans.
Mortgage Note: The note or other evidence of the indebtedness of
a Mortgagor secured by a Mortgage.
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Mortgaged Property: The residential real property securing
repayment of the debt evidenced by a Mortgage Note or with respect to a
Cooperative Loan, the Cooperative Shares and the Proprietary Lease.
Mortgagor: The obligor on a Mortgage Note.
NOI: A notice of intent to foreclose delivered by the Company to
the applicable Mortgagor in compliance with applicable law.
Nonrecoverable Advance: Any Servicing Advance or Monthly Advance
in respect of a Mortgage Loan or REO Property that, pursuant to Accepted
Servicing Practices, would not be recoverable from Insurance Proceeds or
Liquidation Proceeds with respect to such Mortgage Loan or REO Property.
Officer's Certificate: A certificate signed by the Chairman of
the Board or the Vice Chairman of the Board or the President or a Vice President
or an assistant Vice President and by the Treasurer or the Secretary or one of
the Assistant Treasurers or Assistant Secretaries of the Company, and delivered
to the Purchaser as required by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be an
employee of the Company, reasonably acceptable to the Purchaser, provided that
any Opinion of Counsel relating to (a) qualification of the Mortgage Loans in a
REMIC or (b) compliance with the REMIC Provisions, must be an opinion of counsel
who (i) is in fact independent of the Company and any master servicer of the
Mortgage Loans, (ii) does not have any material direct or indirect financial
interest in the Company or any master servicer of the Mortgage Loans or in an
affiliate of either and (iii) is not connected with the Company or any master
servicer of the Mortgage Loans as an officer, employee, director or person
performing similar functions.
Pass-Through Transfer: The sale or transfer of some or all of the
Mortgage Loans to a trust to be formed as part of a publicly-issued and/or
privately placed, rated or unrated, mortgage pass-through transaction, retaining
the Company as "servicer" (with or without a master servicer) thereunder.
Periodic Rate Cap: With respect to each ARM Mortgage Loan, the
provision of each Mortgage Note which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase on an Interest Rate
Adjustment Date above the Mortgage Interest Rate previously in effect.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
Pledge Agreement: The specific security agreement or pledge
agreement creating a security interest on and pledge of the Cooperative Shares
and the appurtenant Proprietary Lease securing a Cooperative Loan.
PMI Policy: A policy of primary mortgage guaranty insurance
issued by a Qualified Insurer, as required by this Agreement with respect to
certain Mortgage Loans.
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Prepayment Interest Shortfall Amount: With respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
during any Principal Prepayment Period, which Principal Prepayment was applied
to such Mortgage Loan prior to such Mortgage Loan's Due Date in such Due Period,
the amount of interest (net the related Servicing Fee) that would have accrued
on the amount of such Principal Prepayment during the period commencing on the
date as of which such Principal Prepayment was applied to such Mortgage Loan and
ending on the day immediately preceding such Due Date, inclusive.
Prime Rate: The prime rate announced to be in effect from time to
time, as published as the average rate in the "Money Rates" section of The Wall
Street Journal.
Principal Prepayment: Any payment or other recovery of principal
on a Mortgage Loan which is received in advance of its scheduled Due Date,
including any prepayment penalty or premium thereon and which is not accompanied
by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
Principal Prepayment Period: The month preceding the month in
which the related Remittance Date occurs.
Proprietary Lease: A lease on (or occupancy agreement with
respect to) a Cooperative Unit evidencing the possessory interest of the owner
of the Cooperative Shares or the Company in such Cooperative Unit.
Purchaser: Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings
Inc., or its successor in interest or any successor to the Purchaser under this
Agreement as herein provided.
Qualified Depository: A depository the accounts of which are
insured by the FDIC through the BIF or the SAIF or the debt obligations of which
are rated AA or better by Standard & Poor's Corporation.
Qualified Insurer: A mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac and
the Rating Agencies.
Qualified Substitute Mortgage Loan: A mortgage loan eligible to
be substituted by the Company for a Deleted Mortgage Loan which must, on the
date of such substitution, (i) have an outstanding principal balance, after
deduction of all scheduled payments due in the month of substitution (or in the
case of a substitution of more than one mortgage loan for a Deleted Mortgage
Loan, an aggregate principal balance), not in excess of the Stated Principal
Balance of the Deleted Mortgage Loan; (ii) be of the same type as the Deleted
Mortgage Loan (e.g. fixed rate Mortgage Loan vs. ARM Mortgage Loan); (iii) have
a Mortgage Interest Rate not less than and not more than 2% greater than the
Mortgage Interest Rate of the Deleted Mortgage Loan; (iv) have a remaining term
to maturity not greater than and not more than one year less than that of the
Deleted Mortgage Loan; (v) comply with each representation and warranty set
forth in Sections 3.01 and 3.02; and (vi) be a REMIC Eligible Mortgage Loan.
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Rating Agency: Any of Fitch, Xxxxx'x or Standard & Poor's or
their respective successors designed by the Purchaser.
Reconstitution Agreements: The agreement or agreements entered
into by the Purchaser, the Company, or certain third parties on the
Reconstitution Date(s) with respect to any or all of the Mortgage Loans serviced
hereunder, in connection with a Pass-Through Transfer as set forth in Section
7.01, including, but not limited to, a Pooling and Servicing Agreement and
master servicing agreement and related custodial/trust agreement and related
documents with respect to a Pass-Through Transfer. Such agreement or agreements
shall prescribe the rights and obligations of the Company in servicing the
related Mortgage Loans and shall provide for servicing compensation to the
Company (calculated on a weighted average basis for all the related Mortgage
Loans as of the Reconstitution Date) at least equal to the Servicing Fee due the
Company in accordance with this Agreement or the servicing fee required pursuant
to the Reconstitution Agreement, whichever is less. The form of relevant
Reconstitution Agreement to be entered into by the Purchaser and/or master
servicer or trustee and the Company with respect to Pass-Through Transfers shall
be reasonably satisfactory in form and substance to the Purchaser and the
Company (giving due regard to any rating or master servicing requirements) and
the representations and warranties and servicing provisions contained therein
shall be substantially similar to those contained in this Agreement, unless
otherwise mutually agreed by the parties.
Reconstitution Date: The date or dates on which any or all of the
Mortgage Loans serviced under this Agreement shall be removed from this
Agreement and reconstituted as part of a Pass-Through Transfer pursuant to
Section 7.01 hereof. On such date or dates, the Mortgage Loans transferred shall
cease to be covered by this Agreement and the Company's servicing
responsibilities shall cease under this Agreement with respect to the related
transferred Mortgage Loans.
Record Date: The close of business of the last Business Day of
the month preceding the month of the related Remittance Date.
Regulation AB: Regulation AB of the Securities Act of 1933, as
amended from time to time.
REMIC: A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
REMIC Documents: The document or documents creating and governing
the administration of a REMIC.
REMIC Eligible Mortgage Loan: A Mortgage Loan held by a REMIC
which satisfies and/or complies with all applicable REMIC Provisions.
REMIC Provisions: Provisions of the federal income tax law
relating to a REMIC, which appear at Section 860A through 860G of Subchapter M
of Chapter 1, Subtitle A of the Code, and related provisions, and regulations,
rulings or pronouncements promulgated thereunder, as the foregoing may be in
effect from time to time.
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Remittance Date: The 18th day (or if such day is not a Business
Day, the Business Day immediately following such 18th day).
REO Disposition: The final sale by the Company of any REO
Property.
REO Disposition Proceeds: All amounts received with respect to an
REO Disposition pursuant to Section 4.16.
REO Property: A Mortgaged Property acquired by the Company on
behalf of the Purchasers through foreclosure or by deed in lieu of foreclosure,
as described in Section 4.16.
Repurchase Price: With respect to any Mortgage Loan, a price
equal to (i) the Stated Principal Balance of the Mortgage Loan plus (ii)
interest on such Stated Principal Balance at the Mortgage Loan Remittance Rate
from the date on which interest has last been paid or advanced and distributed
to the Purchaser to the date of repurchase, less amounts received in the month
of repurchase, if any, plus amounts advanced, if any, by any servicer, in
respect of such repurchased Mortgage Loan plus (iii) any costs and damages
incurred by the trust with respect to any securitization of the Mortgage Loan in
connection with any violation by such Mortgage Loan of any predatory- or
abusive-lending law.
SAIF: The Savings Association Insurance Fund, or any successor
thereto.
Securities Act of 1933 or the 1933 Act: The Securities Act of
1933, as amended.
Servicing Advances: All customary, reasonable and necessary "out
of pocket" costs and expenses other than Monthly Advances (including reasonable
attorneys' fees and disbursements) incurred in the performance by the Company of
its servicing obligations, including, but not limited to, the cost of (a) the
preservation, restoration and protection of the Mortgaged Property, (b) any
enforcement or judicial proceedings, including foreclosures, (c) the management
and liquidation of any REO Property and (d) compliance with the obligations
under Section 4.08.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, which as of the date hereof consists of the following:
(a) General servicing considerations.
(1) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in accordance with the
transaction agreements.
(2) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to monitor the third
party's performance and compliance with such servicing activities.
(3) Any requirements in the transaction agreements to maintain
a back-up servicer for the mortgage loans are maintained.
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(4) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing function throughout the
reporting period in the amount of coverage required by and otherwise in
accordance with the terms of the transaction agreements.
(b) Cash collection and administration.
(1) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank clearing accounts no more
than two business days of receipt, or such other number of days specified in the
transaction agreements.
(2) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized personnel.
(3) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the transaction
agreements.
(4) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of overcollateralization, are
separately maintained (e.g., with respect to commingling of cash) as set forth
in the transaction agreements.
(5) Each custodial account is maintained at a federally
insured depository institution as set forth in the transaction agreements. For
purposes of this criterion, "federally insured depository institution" with
respect to a foreign financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
(6) Unissued checks are safeguarded so as to prevent unauthorized
access.
(7) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A) mathematically
accurate; (B) prepared within 30 calendar days after the bank statement cutoff
date, or such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
(c) Investor remittances and reporting.
(1) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction agreements and
applicable Commission requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Company.
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(2) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other terms set forth in
the transaction agreements.
(3) Disbursements made to an investor are posted within two
business days to the Company's investor records, or such other number of days
specified in the transaction agreements.
(4) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or custodial bank
statements.
(d) Mortgage Loan administration.
(1) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage loan documents.
(2) Mortgage loan and related documents are safeguarded as
required by the transaction agreements.
(3) Any additions, removals or substitutions to the asset pool
are made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
(4) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to the Company's
obligor records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance with the related
mortgage loan documents.
(5) The Company's records regarding the mortgage loans agree
with the Company's records with respect to an obligor's unpaid principal
balance.
(6) Changes with respect to the terms or status of an
obligor's mortgage loan (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with the transaction
agreements and related mortgage loan documents.
(7) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded in
accordance with the timeframes or other requirements established by the
transaction agreements.
(8) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a monthly basis,
or such other period specified in the transaction agreements, and describe the
entity's activities in monitoring delinquent mortgage loans including, for
example, phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or unemployment).
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(9) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on the related mortgage
loan documents.
(10) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance with the obligor's
mortgage loan documents, on at least an annual basis, or such other period
specified in the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan documents and
state laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loan, or such other number of
days specified in the transaction agreements.
(11) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such payments,
provided that such support has been received by the servicer at least 30
calendar days prior to these dates, or such other number of days specified in
the transaction agreements.
(12) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the servicer's funds and not
charged to the obligor, unless the late payment was due to the obligor's error
or omission.
(13) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records maintained by the servicer, or
such other number of days specified in the transaction agreements.
(14) Delinquencies, charge-offs and uncollectable accounts are
recognized and recorded in accordance with the transaction agreements.
(15) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained as set
forth in the transaction agreements.
Servicing Fee: With respect to each Mortgage Loan, the amount of
the annual fee the Purchaser shall pay to the Company, which shall, for a period
of one full month, be equal to one-twelfth of the product of (a) the Servicing
Fee Rate and (b) the outstanding principal balance of such Mortgage Loan. Such
fee shall be payable monthly, computed on the basis of the same principal amount
and period respecting which any related interest payment on a Mortgage Loan is
computed. The obligation of the Purchaser to pay the Servicing Fee is limited
to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds, to the
extent permitted by Section 4.05) of such Monthly Payment collected by the
Company, or as otherwise provided under Section 4.05.
Servicing Fee Rate: 0.44% per annum.
Servicing File: With respect to each Mortgage Loan, the file
retained by the Company consisting of originals of all documents in the Mortgage
File which are not delivered to the Custodian and copies of the Mortgage Loan
Documents listed in Exhibit C, the originals of which are delivered to the
Custodian pursuant to Section 2.01.
15
Servicing Officer: Any officer of the Company involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Company to the
Purchaser upon request, as such list may from time to time be amended.
Stated Principal Balance: As to each Mortgage Loan, (i) the
principal balance of the Mortgage Loan at the related Cut-off Date after giving
effect to payments of principal due on or before such date, whether or not
received, minus (ii) all amounts previously distributed to the Purchaser with
respect to the related Mortgage Loan representing payments or recoveries of
principal or advances in lieu thereof.
Static Pool Information: Information set forth in Item 1105(a) of
Regulation AB.
Tax Returns: The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of any REMIC under the REMIC Provisions, together with any
and all other information, reports or returns that may be required to be
furnished to the certificate holders under a REMIC or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal, state or local tax laws.
Transfer: Any of an Agency Transfer, Whole Loan Transfer or
Pass-Through Transfer.
Underwriting Guidelines: The underwriting guidelines of the
Seller for jumbo prime mortgage loans, as attached
hereto as Exhibit H.
Well Capitalized: With respect to any Insured Depository
Institution, the maintenance by such Insured Depository Institution of capital
ratios at or above the required minimum levels for such capital category under
the regulations promulgated pursuant to Section 1831(o) of the United States
Code, as amended from time to time, by the Appropriate Federal Banking Agency
for such institution, as such regulation may be amended from time to time.
Whole Loan Transfer: The sale or transfer of some or all of the
Mortgage Loans to a third party purchaser in a whole loan transaction pursuant
to a seller's warranties and servicing agreement or a participation and
servicing agreement, retaining the Company as "servicer" thereunder.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS AND RECORDS;
DELIVERY OF DOCUMENTS
Section 2.01 Conveyance of Mortgage Loans; Possession of Mortgage
Files; Maintenance of Servicing Files.
The Company, on each Closing Date, does hereby sell, transfer,
assign, set over and convey to the Purchaser, without recourse, but subject to
the terms of this Agreement, all the right, title and interest of the Company in
and to the Mortgage Loans in the related Mortgage Loan Package. Pursuant to
Section 2.03, the Company has delivered the Mortgage Loan Documents for each
Mortgage Loan in the Mortgage Loan Package to the Custodian.
The contents of each Mortgage File not delivered to the Custodian
are and shall be held in trust by the Company for the benefit of the Purchaser
as the owner thereof. The Company shall maintain a Servicing File consisting of
a copy of the contents of each Mortgage File and the originals of the documents
in each Mortgage File not delivered to the Custodian. The possession of each
Servicing File by the Company is at the will of the Purchaser for the sole
purpose of servicing the related Mortgage Loan, and such retention and
possession by the Company is in a custodial capacity only. Upon the sale of the
Mortgage Loans the ownership of each Mortgage Note, the related Mortgage and the
related Mortgage File and Servicing File shall vest immediately in the
Purchaser, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Company shall vest immediately in the Purchaser and shall be retained and
maintained by the Company, in trust, at the will of the Purchaser and only in
such custodial capacity. Each Servicing File shall be segregated from the other
books and records of the Company and shall be marked appropriately to reflect
clearly the sale of the related Mortgage Loan to the Purchaser. The Company
shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Purchaser, unless such release is
required as incidental to the Company's servicing of the Mortgage Loans or is in
connection with a repurchase of any Mortgage Loan pursuant to Section 3.03,
3.04, 3.05 or 6.02.
Section 2.02 Books and Records; Transfers of Mortgage Loans.
From and after the sale of the Mortgage Loans to the Purchaser
all rights arising out of the Mortgage Loans in a Mortgage Loan Package
including but not limited to all funds received on or in connection with the
Mortgage Loans, shall be received and held by the Company in trust for the
benefit of the Purchaser as owner of such Mortgage Loans, and the Company shall
retain record title to the related Mortgages for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
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The sale of each Mortgage Loan in a Mortgage Loan Package shall
be reflected on the Company's balance sheet and other financial statements as a
sale of assets by the Company. The Company shall be responsible for maintaining,
and shall maintain, a complete set of books and records for each Mortgage Loan
which shall be marked clearly to reflect the ownership of each Mortgage Loan by
the Purchaser. In particular, the Company shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver to
the Purchaser upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of Xxxxxx Mae or Xxxxxxx
Mac, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval by
Xxxxxx Mae and periodic inspection reports as required by Section 4.13. To the
extent that original documents are not required for purposes of realization of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche or such other reliable means of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of the Xxxxxx
Xxx Selling and Servicing Guides, as amended from time to time.
This Agreement continuously, from the time of its execution,
shall be an official record of the Company and Company will maintain a copy of
this Agreement and each agreement related hereto in its official books and
records.
The Company shall maintain with respect to each Mortgage Loan and
shall make available for inspection by any Purchaser or its designee the related
Servicing File during the time the Purchaser retains ownership of a Mortgage
Loan and thereafter in accordance with applicable laws and regulations.
The Company shall keep at its servicing office books and records
in which, subject to such reasonable regulations as it may prescribe, the
Company shall note transfers of Mortgage Loans. No transfer of a Mortgage Loan
may be made unless such transfer is in compliance with the terms hereof. For the
purposes of this Agreement, the Company shall be under no obligation to deal
with any person with respect to this agreement or the Mortgage Loans unless the
books and records show such person as the owner of the Mortgage Loan. The
Purchaser may, subject to the terms of this Agreement, sell and transfer one or
more of the Mortgage Loans, provided, however, that (i) the transferee will not
be deemed to be a Purchaser hereunder binding upon the Company unless such
transferee shall agree in writing to be bound by the terms of this Agreement and
an original counterpart of the instrument of transfer and an assignment and
assumption of this Agreement in the form of Exhibit G hereto executed by the
transferee shall have been delivered to the Company, and (ii) with respect to
each Mortgage Loan Package, in no event shall there be more than four Persons at
any given time having the status of "Purchaser" hereunder. The Purchaser also
shall advise the Company of the transfer. Upon receipt of notice of the
transfer, the Company shall xxxx its books and records to reflect the ownership
of the Mortgage Loans of such assignee, and shall release the previous Purchaser
from its obligations hereunder with respect to the Mortgage Loans sold or
transferred.
Section 2.03 Delivery of Documents.
On or prior to the date set forth in the related Purchase Price
and Terms Letter, the Company shall deliver and release to the Custodian those
Mortgage Loan Documents as required by this Agreement with respect to each
Mortgage Loan in the related Mortgage Loan Package, a list of which is attached
to the related Assignment and Conveyance.
18
On or prior to the related Closing Date, the Custodian shall
certify its receipt of all such Mortgage Loan Documents required to be delivered
pursuant to the Custodial Agreement, as evidenced by the Initial Certification
of the Custodian in the form annexed to the Custodial Agreement. The Purchaser
shall be responsible for maintaining the Custodial Agreement for the benefit of
the Purchaser and shall pay all fees and expenses of the Custodian.
The Company shall forward to the Custodian original documents
evidencing an assumption, modification, consolidation or extension of any
Mortgage Loan entered into in accordance with Section 4.01 or 6.01 within one
week of their execution, provided, however, that the Company shall provide the
Custodian with a certified true copy of any such document submitted for
recordation within one week 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 sixty days of its submission for recordation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
REMEDIES AND BREACH
Section 3.01 Company Representations and Warranties.
The Company represents and warrants to the Purchaser that as of
each Closing Date:
(a)Due Organization and Authority. The Company is a federally
chartered savings bank duly organized, validly existing and in good standing
under the laws of the United States and has all licenses necessary to carry on
its business as now being conducted and is licensed, qualified and in good
standing in each state where a 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 Company, and in any event the Company is in compliance
with the laws of any such state to the extent necessary to ensure the
enforceability of the related Mortgage Loan and the servicing of such Mortgage
Loan in accordance with the terms of this Agreement; the Company has the full
corporate 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 Company 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 Company; and all
requisite corporate action has been taken by the Company to make this Agreement
valid and binding upon the Company in accordance with its terms;
(b)Ordinary Course of Business. The consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Company, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Company pursuant to this Agreement are
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction;
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(c)No Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage Loans to the Purchaser or the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the terms, conditions or
provisions of the Company's charter or by-laws or any legal restriction or any
agreement or instrument to which the Company is now a party or by which it is
bound, or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject, or impair
the ability of the Purchaser to realize on the Mortgage Loans, or impair the
value of the Mortgage Loans;
(d)Ability to Service. The Company is an approved seller/servicer
of conventional residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac, with
the facilities, procedures, and experienced personnel necessary for the sound
servicing of mortgage loans of the same type as the Mortgage Loans. The Company
is in good standing to sell mortgage loans to and service mortgage loans for
Xxxxxx Mae or Xxxxxxx Mac, and no event has occurred, including but not limited
to a change in insurance coverage, which would make the Company unable to comply
with Xxxxxx Mae or Xxxxxxx Mac eligibility requirements or which would require
notification to either Xxxxxx Mae or Xxxxxxx Mac;
(e)Reasonable Servicing Fee. The Company acknowledges and agrees
that the Servicing Fee, as calculated at the Servicing Fee Rate, represents
reasonable compensation for performing such services and that the entire
Servicing Fee shall be treated by the Company, for accounting and tax purposes,
as compensation for the servicing and administration of the Mortgage Loans
pursuant to this Agreement.
(f)Ability to Perform. The Company does not believe, nor does it
have any reason or cause to believe, that it cannot comply in all material
respects each and every covenant contained in this Agreement. The Company is
solvent and the sale of the Mortgage Loans will not cause the Company to become
insolvent. The sale of the Mortgage Loans is not undertaken with the intent to
hinder, delay or defraud any of the Company's creditors;
(g)No Litigation Pending. There is no action, suit, proceeding or
investigation pending or, to the best of the Company's knowledge, threatened
against the Company which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations, financial
condition, properties or assets of the Company, or in any material impairment of
the right or ability of the Company to carry on its business substantially as
now conducted, or in any material liability on the part of the Company, or which
would draw into question the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with the obligations of the
Company contemplated herein, or which would be likely to impair materially the
ability of the Company to perform under the terms of this Agreement;
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(h)No Consent Required. No consent, approval, authorization or
order of any court or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the Company with
this Agreement or the sale of the Mortgage Loans as evidenced by the
consummation of the transactions contemplated by this Agreement, or if required,
such approval has been obtained prior to the related Closing Date;
(i)Selection Process. The Mortgage Loans were not selected in a
manner so as to affect adversely the interests of the Purchaser;
(j)Pool Characteristics. With respect to each Mortgage Loan
Package, the Mortgage Loan characteristics set forth on Exhibit 2 to the related
Assignment and Conveyance are true and complete.
(k)No Untrue Information. Neither this Agreement (with the
exception of sub-part (j) of this Section) nor any statement, report or other
document furnished or to be furnished pursuant to this Agreement or in
connection with the transactions contemplated hereby contains any material
untrue statement of fact regarding the Company or omits to state a material fact
necessary to make the statements contained therein regarding the Seller not
misleading;
(l) Sale Treatment. The Company has determined that the
disposition of the Mortgage Loans pursuant to this Agreement will be afforded
sale treatment for accounting and tax purposes;
(m)Financial Statements. The Company has delivered to the
Purchaser financial statements as to its last three complete fiscal years and
any later quarter ended more than 60 days prior to the execution of this
Agreement. All such financial statements fairly present the pertinent results of
operations and changes in financial position at the end of each such period of
the Company and its subsidiaries and have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as set forth in the notes thereto. There has been no
change in the business, operations, financial condition, properties or assets of
the Company since the date of the Company's financial statements that would have
a material adverse effect on its ability to perform its obligations under this
Agreement.;
(n)No Brokers' Fees. The Company has not dealt with any broker,
investment banker, agent or other person that may be entitled to any commission
or compensation in connection with the sale of the Mortgage Loans;
(o) Insured Depository Institution Representations. Company is an
"insured depository institution" as that term is defined in Section 1813(c)(2)
of Title 12 of the United States Code, as amended, and accordingly, Company
makes the following additional representations and warranties:
(i) This Agreement between Purchaser and Company conforms to
all applicable statutory and regulatory requirements; and
(ii) This Agreement is (1) executed contemporaneously with the
agreement reached by Purchaser and Company, and (2) an official record
of the Company. A copy of such resolution, certified by a vice president
or higher officer of Company has been provided to Purchaser.
21
Section 3.02 Representations and Warranties Regarding Individual
Mortgage Loans.
As to each Mortgage Loan, the Company hereby represents and
warrants to the Purchaser that as of the related Closing Date:
(a)Mortgage Loans as Described. The information set forth in the
Mortgage Loan Schedule is materially complete, true and correct;
(b)Payments Current. All payments required to be made up to the
related Closing Date for the Mortgage Loan under the terms of the Mortgage Note
have been made and credited. No payment required under the Mortgage Loan is 30
days or more delinquent nor has any payment under the Mortgage Loan been
delinquent for 30 days or more in the 12 months preceding the related Closing
Date. The first Monthly Payment was made with respect to the Mortgage Loan
within 30 days of its Due Date;
(c)No Outstanding Charges. There are no material defaults in
complying with the terms of the Mortgage, and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents which previously became due and owing have been paid,
or, with respect to each Escrow Mortgage Loan, an escrow of funds has been
established in an amount sufficient to pay for every such item which remains
unpaid and which has been assessed but is not yet due and payable. The Company
has not advanced funds, or induced, solicited or knowingly received any advance
of funds by a party other than the Mortgagor, directly or indirectly, for the
payment of any amount required under the Mortgage Loan, except for interest
accruing from the date of the Mortgage Note or date of disbursement of the
Mortgage Loan proceeds, whichever is earlier, to the day which precedes by one
month the Due Date of the first installment of principal and interest;
(d)Original Terms Unmodified. The terms of the Mortgage Note and
Mortgage have not been impaired, waived, altered or modified in any respect,
except by a written instrument which has been recorded, if necessary to protect
the interests of the Purchaser and which has been delivered to the Custodian.
The substance of any such waiver, alteration or modification has been approved
by the issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the Mortgage Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy, and
which assumption agreement is part of the Mortgage Loan File delivered to the
Custodian and the terms of which are reflected in the Mortgage Loan Schedule;
(e)No Defenses. The Mortgage Loan is not subject to any right of
rescission, set-off, counterclaim or defense, including without limitation the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part, or subject to
any right of rescission, set-off, counterclaim or defense, including without
limitation the defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect thereto, and no Mortgagor
was a debtor in any state or federal bankruptcy or insolvency proceeding, or was
subject to a foreclosure proceeding, at the time the Mortgage Loan was
originated or during the 24 months prior to origination;
22
(f)Hazard Insurance. With respect to Mortgage Loans other than
Cooperative Loans, pursuant to the terms of the Mortgage, all buildings or other
improvements upon the Mortgaged Property are insured by a generally acceptable
insurer against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Xxxxxx Mae and
Xxxxxxx Mac. If, upon origination of the Mortgage Loan (other than a Cooperative
Loan), the Mortgaged Property was in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood hazards (and
such flood insurance has been made available) a flood insurance policy meeting
the requirements of the current guidelines of the Federal Flood Insurance
Administration is in effect which policy conforms to the requirements of Xxxxxx
Mae and Xxxxxxx Mac. With respect to each Cooperative Loan, the related
Cooperative Project is insured by a generally acceptable insurer against loss by
fire, hazards of extended coverage and such other hazards as are customary in
the area where the Cooperative Project is located pursuant to insurance policies
conforming to the requirements of Xxxxxx Mae and Xxxxxxx Mac. All individual
insurance policies contain a standard mortgagee clause naming the Company and
its successors and assigns as mortgagee, and all premiums thereon have been
paid. The Mortgage obligates the Mortgagor thereunder to maintain the hazard
insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to obtain and maintain
such insurance at such Mortgagor's cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or regulation, with
respect to Mortgage Loans other than Cooperative Loans, the Mortgagor has been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a "master" or "blanket" hazard insurance policy
covering the common facilities of a planned unit development. The hazard
insurance policy is the valid and binding obligation of the insurer, is in full
force and effect, and will be in full force and effect and inure to the benefit
of the Purchaser upon the consummation of the transactions contemplated by this
Agreement. The Company has not engaged in, and has no knowledge of the
Mortgagor's or any subservicer's having engaged in, any act or omission which
would impair the coverage of any such policy, the benefits of the endorsement
provided for herein, or the validity and binding effect of either, including,
without limitation, no unlawful fee, commission, kickback or other unlawful
compensation or value of any kind has been or will be received, retained or
realized by any attorney, firm or other person or entity, and no such unlawful
items have been received, retained or realized by the Company;
(g)Compliance with Applicable Laws. Each Mortgage Loan at the
time it was made complied in all material respects with applicable local, state,
and federal laws, including, but not limited to all applicable predatory and
abusive lending laws and any and all requirements of any federal, state or local
law (including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
disclosure laws, all applicable predatory and abusive lending laws or unfair and
deceptive practices laws) applicable to the Mortgage Loan have been complied
with, and the Company shall maintain in its possession, available for the
Purchaser's inspection, and shall deliver to the Purchaser upon demand, evidence
of compliance with all such requirements.
23
(h)No Satisfaction of Mortgage. The Mortgage has not been
satisfied, canceled, subordinated or rescinded, in whole or in part, and the
Mortgaged Property has not been released from the lien of the Mortgage, in whole
or in part, nor has any instrument been executed that would effect any such
release, cancellation, subordination or rescission. The Company has not waived
the performance by the Mortgagor of any action, if the Mortgagor's failure to
perform such action would cause the Mortgage Loan to be in default, nor has the
Company waived any default resulting from any action or inaction by the
Mortgagor;
(i)Location and Type of Mortgaged Property. The Mortgaged
Property (other than with respect to a Cooperative Loan) is a fee simple
property. The Mortgaged Property or, with respect to each Cooperative Loan,
Cooperative Unit is located in the state identified in the related Mortgage Loan
Schedule and consists of a single parcel of real property with a detached single
family residence erected thereon, or a two- to four-family dwelling, or an
individual condominium unit in a low-rise condominium project, or a Cooperative
Unit, or an individual unit in a planned unit development, provided, however,
that (I) any condominium unit or planned unit development shall conform with the
Company's Underwriting Guidelines regarding such dwellings, and (II) that no
residence or dwelling is a mobile home or manufactured housing. No portion of
the Mortgaged Property or, with respect to each Cooperative Loan, the
Cooperative Unit is used for commercial purposes;
(j)Valid First Lien. The Mortgage (other than with respect to a
Cooperative Loan) is a valid, subsisting, enforceable and perfected first
priority lien and first priority security interest on the Mortgaged Property,
including all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. The lien of the Mortgage (other
than with respect to a Cooperative Loan) is subject only to:
(1)the lien of current real property taxes and assessments
not yet due and payable;
(2)covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of
recording acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and (i) referred to or
to otherwise considered in the appraisal made for the originator of the
Mortgage Loan or (ii) which do not adversely affect the Appraised Value
of the Mortgaged Property set forth in such appraisal; and
(3)other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the mortgage or the use, enjoyment, value or
marketability of the related Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and the Company has full right to sell and assign
the same to the Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed to
secured debt or other security instrument creating a lien subordinate to the
lien of the Mortgage;
24
(k)Validity of Mortgage Documents. The Mortgage Note and the
Mortgage are genuine, and each is the legal, valid and binding obligation of the
maker thereof enforceable in accordance with its terms except as enforceability
may be limited by bankruptcy, insolvency or reorganization. All parties to the
Mortgage Note and the Mortgage and any other related agreement had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage and any other related agreement, and the Mortgage Note,
the Mortgage and any other related agreement have been duly and properly
executed by such parties. The Company has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein;
(l)Full Disbursement of Proceeds. The Mortgage Loan has been
closed and the proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder, and any and all requirements
as to completion of any on-site or off-site improvement and as to disbursements
of any escrow funds therefor have been complied with. All costs, fees and
expenses incurred in making or closing the Mortgage Loan and the recording of
the Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage;
(m) Ownership. The Company is the sole owner of record and holder
of the Mortgage Loan. The Mortgage Loan is not assigned or pledged, and the
Company has good and marketable title thereto, and has full right to transfer
and sell the Mortgage Loan therein to the Purchaser free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest, and has full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign each
Mortgage Loan pursuant to this Agreement;
(n)Doing Business. All parties which have had any interest in the
Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or,
during the period in which they held and disposed of such interest, were) (1) in
compliance with any and all applicable licensing requirements of the laws of the
state wherein the Mortgaged Property or with respect to each Cooperative Loan,
the Cooperative Unit, is located, and (2) organized under the laws of such
state, or (3) qualified to do business in such state, or (4) federal savings and
loan associations or national banks having principal offices in such state, or
(5) not doing business in such state;
25
(o)LTV, PMI Policy. If the LTV of the Mortgage Loan is more than
80% (an "80% Loan") either (i) the Mortgage Loan will be insured as to payment
defaults by a PMI Policy acceptable to Xxxxxx Mae until the LTV of such Mortgage
Loan is reduced to 80% (a "PMI Loan") or (ii) such Mortgage Loan is listed on an
exhibit to the applicable Assignment and Conveyance. All provisions of such PMI
Policy have been and are being complied with, such policy is in full force and
effect, and all premiums due thereunder have been paid. No action, inaction, or
event has occurred and no state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject to
a PMI Policy obligates the Mortgagor thereunder to maintain the PMI Policy and
to pay all premiums and charges in connection therewith. The Mortgage Interest
Rate for the Mortgage Loan as set forth on the Mortgage Loan Schedule is net of
any such insurance premium. All information provided by the Company to the PMI
Policy insurer is accurate and complete. The Company has notified the PMI Policy
insurer of the sale of the Mortgage Loan to the Purchaser. The Company has no
knowledge of any potential cancellation or rescission of the PMI Policy and has
had no dialogue with the PMI Policy insurer regarding any issues or
circumstances which may result in a cancellation or rescission of the PMI
Policy;
(p)Title Insurance. The Mortgage Loan (other than each
Cooperative Loan) is covered by an ALTA lender's title insurance policy or other
generally acceptable form of policy of insurance acceptable to Xxxxxx Xxx or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac
and qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring the Company, its successors and assigns, as to the first
priority lien, as applicable, of the Mortgage, in the original principal amount
of the Mortgage Loan (or to the extent that a Mortgage Note provides for
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), and against any loss by reason of the invalidity or
unenforceability of the lien resulting from the provisions of the Mortgage
providing for adjustment in the Mortgage Interest Rate and Monthly Payment,
subject only to the exceptions contained in clauses (1), (2) and (3) of
paragraph (j) of this Section 3.02. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. Additionally, such lender's title insurance
policy affirmatively insures ingress and egress, and against encroachments by or
upon the Mortgaged Property or any interest therein. The Company is the sole
insured of such lender's title insurance policy, and such lender's title
insurance policy is in full force and effect and will be in force and effect
upon the consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender's title insurance policy, and no prior
holder of the Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such lender's title insurance policy
including without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the Company;
(q)No Defaults. There is no material default, breach, violation
or event of acceleration existing under the Mortgage or the Mortgage Note and no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event of
acceleration, and neither the Company nor its predecessors have waived any
default, breach, violation or event of acceleration;
(r)No Mechanics' Liens. There are no mechanics' or similar liens
or claims which have been filed for work, labor or material (and no rights are
outstanding that under the law could give rise to such liens) affecting the
related Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage;
26
(s)Location of Improvements; No Encroachments. All improvements
which were considered in determining the Appraised Value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines of the
Mortgaged Property or, with respect to each Cooperative Loan, the Cooperative
Unit and no improvements on adjoining properties encroach upon the Mortgaged
Property or, with respect to each Cooperative Loan, the Cooperative Unit. No
improvement located on or being part of the Mortgaged Property or, with respect
to each Cooperative Loan, the Cooperative Unit is in violation of any applicable
zoning law or regulation;
(t)Origination: Payment Terms. At the time the Mortgage Loan was
originated, the originator was a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Act or a savings and loan association, a savings bank, a commercial bank or
similar banking institution which is supervised and examined by a Federal or
State authority. The Mortgage Interest Rate is (a) with respect to fixed rate
mortgage loans, the fixed interest rate set forth in the Mortgage Note and (b)
with respect to ARM Mortgage Loans, adjusted on each Interest Rate Adjustment
Date to equal the Index plus the Gross Margin, rounded up. Except with respect
to interest only Mortgage Loans and negative amortization mortgage loans, the
Mortgage Note is payable each month in equal monthly installments of principal
and interest, with interest calculated and payable in arrears, and except for
any balloon Mortgage Loan, sufficient to amortize the Mortgage Loan fully by the
stated maturity date, over an original term of not more than thirty years from
commencement of amortization. The interest only Mortgage Loans are payable in
equal monthly installments of interest for the initial three or five year period
(as applicable) and thereafter payable each month in equal monthly installments
of principal and interest, with interest calculated and payable in arrears
sufficient to amortize the Mortgage Loan fully by the stated maturity date, over
an original term of not more than thirty years from commencement of
amortization.
(u)Customary Provisions. With respect to each Mortgage Loan other
than a Cooperative Loan, the Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on,
or trustee's sale of, the Mortgaged Property pursuant to the proper procedures,
the holder of the Mortgage Loan will be able to deliver good and merchantable
title to the Mortgaged Property. To the best of the Company's knowledge, there
is no homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose the Mortgage;
(v)Conformance with Underwriting Guidelines. The Mortgage Loan
was underwritten in accordance with the Company's Underwriting Guidelines in
effect at the time the Mortgage Loan was originated, subject to the exception
guidelines and processes they include. The Mortgage Note and Mortgage are on
forms acceptable to Xxxxxxx Mac or Xxxxxx Mae;
(w)Occupancy of the Mortgaged Property or Cooperative Unit. As of
the date of origination of the related Mortgage Loan, the Mortgaged Property or
Cooperative Unit, as applicable is lawfully occupied under applicable law. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property or Cooperative Unit,
as applicable, and, with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
27
(x)No Additional Collateral. The Mortgage Note is not and has not
been secured by any collateral except the lien of the corresponding Mortgage and
the security interest of any applicable security agreement or chattel mortgage
referred to in (j) above;
(y)Deeds of Trust. In the event the Mortgage constitutes a deed
of trust, a trustee, duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named in the Mortgage,
and no fees or expenses are or will become payable by the Purchaser to the
trustee under the deed of trust, except in connection with a trustee's sale
after default by the Mortgagor;
(z)Acceptable Investment. The Company has no knowledge of any
circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, or Cooperative Unit, as applicable, the Mortgagor or the Mortgagor's
credit standing that can reasonably be expected to cause private institutional
investors using reasonable business judgment to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage Loan to become delinquent, or
adversely affect the value or marketability of the Mortgage Loan;
(aa) Delivery of Mortgage Documents. The Mortgage Note, the
Mortgage, the Assignment of Mortgage and any other documents required to be
delivered for the Mortgage Loan by the Company under this Agreement as set forth
in Exhibit C attached hereto have been delivered to the Custodian. The Company
is in possession of a complete, true and accurate Mortgage File in compliance
with Exhibit B, except for such documents the originals of which have been
delivered to the Custodian;
(bb) Condominiums/Planned Unit Developments. If the Mortgaged
Property is a condominium unit or a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project meets Xxxxxx Xxx eligibility requirements for sale to Xxxxxx Mae or is
located in a condominium or planned unit development project which has received
Xxxxxx Xxx project approval and the representations and warranties required by
Xxxxxx Mae with respect to such condominium or planned unit development have
been made and remain true and correct in all respects;
(cc) Transfer of Mortgage Loans. The Assignment of Mortgage is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) Due on Sale. For each fixed rate Mortgage Loan and for each
ARM Mortgage Loan prior to the first Interest Rate Adjustment Date, the
Mortgage, contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property or Cooperative Shares, as applicable, is sold or transferred
without the prior written consent of the Mortgagee thereunder;
28
(ee) No Buydown Provisions; No Graduated Payments or Contingent
Interests. The Mortgage Loan does not contain provisions pursuant to which
Monthly Payments are paid or partially paid with funds deposited in any separate
account established by the Company, the Mortgagor or anyone on behalf of the
Mortgagor, or paid by any source other than the Mortgagor nor does it contain
any other similar provisions currently in effect which may constitute a
"buydown" provision. The Mortgage Loan is not a graduated payment mortgage loan
and the Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
(ff) Consolidation of Future Advances. Any future advances made
prior to the related Cut-off Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term. The lien
of the Mortgage securing the consolidated principal amount is expressly insured
as having first lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title evidence
acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan;
(gg) Mortgaged Property Undamaged. At origination, there was no
proceeding pending or threatened for the total or partial condemnation of the
Mortgaged Property or the Cooperative Project, as applicable. The Mortgaged
Property or the Cooperative Project, as applicable, is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty so as
to affect adversely the value of the Mortgaged Property or the Cooperative
Project, as applicable, as security for the Mortgage Loan or the use for which
the premises were intended;
(hh) Collection Practices; Escrow Deposits; ARM Adjustments. The
origination and collection practices used with respect to the Mortgage Loan have
been in accordance with Accepted Servicing Practices, in all respects in
compliance with all applicable laws and regulations. With respect to escrow
deposits and Escrow Payments, all such payments are in the possession of the
Company and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law. An
escrow of funds is not prohibited by applicable law and has been established in
an amount sufficient to pay for every item which remains unpaid and which has
been assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Seller have been capitalized under
the Mortgage or the Mortgage Note. All Mortgage Interest Rate adjustments have
been made in strict compliance with state and federal law and the terms of the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(ii) Appraisal. The Mortgage File contains an appraisal of the
related Mortgage Property or the Cooperative Unit, as applicable, signed prior
to the approval of the Mortgage Loan application by a Qualified Appraiser. Each
Mortgage File contains an appraisal of the related Mortgage Property or the
Cooperative Unit, as applicable, signed prior to the approval of the Mortgage
Loan application by a Qualified Appraiser. The Appraised Value as set forth on
the Appraisal accurately reflects the value of the Mortgage Property, and takes
into consideration the condition of the Mortgaged Property, all improvements
made to the Mortgaged Property, and the market value of similar mortgaged
properties in the area where the Mortgaged Property is located. Any variance of
15% or more in the value of the Mortgaged Property from the Appraised Value
shall be deemed to be material.
29
(jj) Servicemembers Civil Relief Act. The Mortgagor has not
notified the Company, and the Company has no knowledge of any relief requested
or allowed to the Mortgagor under the Servicemembers Civil Relief Act, as
amended from time to time;
(kk) Environmental Matters. To the best of the Company's
knowledge, the Mortgaged Property or the Cooperative Unit, as applicable, is
free from any and all toxic or hazardous substances and there exists no
violation of any local, state or federal environmental law, rule or regulation.
There is no pending action or proceeding directly involving any Mortgaged
Property or Cooperative Unit, as applicable, of which the Company is aware in
which compliance with any environmental law, rule or regulation is an issue; and
to the best of the Company's knowledge, nothing further remains to be done to
satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
(ll) Conversion to Fixed Interest Rate. With respect to each ARM
Mortgage Loan; the Mortgage Loan does not contain a provision permitting or
requiring conversion to a fixed interest rate Mortgage Loan.
(mm) No Construction Loans. No Mortgage Loan was made in
connection with (i) the construction or rehabilitation of a Mortgaged Property
or Cooperative Unit, as applicable or (ii) facilitating the trade-in or exchange
of a Mortgaged Property;
(nn) No Denial of Insurance. No action, inaction, or event has
occurred and no state of facts exists or has existed that has resulted or will
result in the exclusion from, denial of, or defense to coverage under any
applicable special hazard insurance policy, PMI Policy, or bankruptcy bond,
irrespective of the cause of such failure of coverage. In connection with the
placement of any such insurance, no commission, fee, or other compensation has
been or will be received by the Company or any designee of the Company or any
corporation in which the Company or any officer, director, or employee had a
financial interest at the time of placement of such insurance;
(oo) Regarding the Mortgagor. The Mortgagor is one or more
natural persons and/or trustees for an Illinois land trust or a trustee under a
"living trust" and such "living trust" is in compliance with Xxxxxx Xxx
guidelines for such trusts.
(pp) Texas Home Equity Loans. With respect to any Mortgage Loan
which is a Texas Home Equity Loan, any and all requirements of Section 50,
Article XVI of the Texas Constitution applicable to Texas Home Equity Loans
which were in effect at the time of the origination of the Mortgage Loan have
been complied with. Specifically, without limiting the generality of the
foregoing, any fees paid in connection with such Mortgage Loan in order for the
Mortgagor to receive a reduced interest rate are not required to be included in
the calculation of the aggregate fees pursuant to Section 50(a)(6)(E) of the
Texas Constitution.
(qq) Simple Interest Mortgage Loans. None of the Mortgage Loans
are simple interest Mortgage Loans.
30
(rr) Single Premium Credit Life Insurance. No Mortgagor was
required to purchase any single premium credit insurance policy (e.g., life,
disability, accident, unemployment, or health insurance product) or debt
cancellation agreement as a condition of obtaining the extension of credit. No
Mortgagor obtained a prepaid single premium credit insurance policy (e.g., life,
disability, accident, unemployment, mortgage, or health insurance) in connection
with the origination of the Mortgage Loan from the Seller. No proceeds from any
Mortgage Loan were used to purchase single premium credit insurance policies or
debt cancellation agreements as part of the origination of, or as a condition to
closing, such Mortgage Loan. None of the proceeds of the Mortgage Loans were
used to finance single premium credit life insurance policies;
(ss) Tax Service Contract The Company has obtained a life of
loan, transferable real estate Tax Service Contract with an Approved Tax Service
Contract Provider on each Mortgage Loan and such contract is assignable without
penalty, premium or cost to the Purchaser. Such Tax Service Contract shall
contain complete and accurate information with respect to the Mortgage Loan and
the Mortgaged Property;
(tt) Flood Certification Contract. The Company has obtained a
life of loan, transferable flood certification contract for each Mortgage Loan
and such contract is assignable without penalty, premium or cost to the
Purchaser. Such Tax Service Contract shall contain complete and accurate
information with respect to the Mortgage Loan and the Mortgaged Property;
(uu) Recordation. Each original Mortgage was recorded and, except
for those Mortgage Loans subject to the MERS identification system, all
subsequent assignments of the original Mortgage (other than the assignment to
the Purchaser) have been recorded in the appropriate jurisdictions wherein such
recordation is necessary to perfect the lien thereof as against creditors of the
Company, or is in the process of being recorded;
(vv) FICO Scores. Each Mortgage Loan has a non-zero FICO score;
(ww) Prepayment Fee. With respect to each Mortgage Loan that has
a prepayment fee feature, each such prepayment fee is enforceable and will be
enforced by the Company, and each prepayment penalty in permitted pursuant to
federal, state and local law, including the Parity Act of 1982. No Mortgage Loan
will impose a prepayment penalty for a term in excess of five years from the
date such Mortgage Loan was originated. Except as otherwise set forth in the
related Mortgage Loan Schedule, with respect to each Mortgage Loan that contains
a prepayment fee, such prepayment fee is at least equal to the lesser of (A) the
maximum amount permitted under applicable law and (B) six months interest at the
related Mortgage Interest Rate on the amount prepaid in excess of 20% of the
original principal balance of such Mortgage Loan. With respect to any Mortgage
Loan that contains a provision permitting imposition of a premium upon a
prepayment prior to maturity: (i) prior to the loan's origination, the Mortgagor
agreed to such premium in exchange for a monetary benefit, including but not
limited to a rate or fee reduction, (ii) prior to the loan's origination, the
Mortgagor was offered the option of obtaining a mortgage loan that did not
require payment of such a premium, (iii) the prepayment premium is disclosed to
the borrower in the loan documents pursuant to applicable state and federal law,
(iv) except as set forth on the related Mortgage Loan Schedule, for Mortgage
Loans originated on or after September 1, 2004, the duration of the prepayment
period shall not exceed three (3) years from the date of the note, unless the
Mortgage Loan was modified to reduce the prepayment period to no more than three
years from the date of the Mortgage Note and the Mortgagor was notified in
writing of such reduction in prepayment period, and (v) notwithstanding any
state or federal law to the contrary, prior to the Transfer Date, the Company or
any servicer of the Mortgage Loan shall not have imposed such prepayment premium
in any instance when the mortgage debt is accelerated as the result of the
Mortgagor's default in making the loan payments;
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(xx) Predatory Lending Regulations; High Cost Loans. None of the
Mortgage Loans are classified as (a) "high cost" loans under the Home Ownership
and Equity Protection Act of 1994 or (b) "high cost," "threshold," "predatory",
"covered" loans under any other applicable state, federal or local law. (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees). Each Mortgage
Loan is in compliance with the anti-predatory lending eligibility for purchase
requirements of Xxxxxx Mae's Selling Guide. No Mortgage Loan is a High Cost Loan
or Covered Loan, as applicable (as such terms are defined in the then current
Standard & Poor's LEVELS(R) Glossary);
(yy) Cooperative Loans. With respect to each Cooperative Loan the
Company represents and warrants:
(i) the Cooperative Loan is secured by a valid, subsisting,
enforceable and perfected first lien on the corporation stock, shares or
membership certificate issued to the related Mortgagor with respect to
such Cooperative Loan. The lien of the Pledge Agreement is subject only
to the Cooperative Corporation's lien against such corporation stock,
shares or membership certificate for unpaid assessments of the
Cooperative Corporation to the extent required by applicable law. Any
security agreement, chattel mortgage or equivalent document related to
and delivered in connection with the Cooperative Loan establishes and
creates a valid, subsisting and enforceable first lien and first
priority security interest on the property described therein and the
Company has full right to sell and assign the same to the Purchaser. The
Cooperative Unit was not, as of the date of origination of the
Cooperative Loan, subject to a mortgage, deed of trust, deed to secure
debt or other security instrument creating a lien subordinate to the
lien of the Pledge Agreement.
(ii) There is no proceeding pending or threatened for the total
or partial condemnation of the building owned by the applicable
Cooperative Corporation (the "Underlying Mortgaged Property"). The
Underlying Mortgaged Property is undamaged by waste, fire, earthquake or
earth movement, windstorm, flood, tornado or other casualty so as to
affect adversely the value of the Underlying Mortgaged Property as
security for the mortgage loan on such Underlying Mortgaged Property
(the "Cooperative Mortgage") or the use for which the premises were
intended.
(iii) There is no default, breach, violation or event of
acceleration existing under the Cooperative Mortgage or the mortgage
note related thereto and no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration.
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(iv) The Cooperative Corporation has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction
of its formation. The Cooperative Corporation has requisite power and
authority to (i) own its properties, and (ii) transact the business in
which it is now engaged. The Cooperative Corporation possesses all
rights, licenses, permits and authorizations, governmental or otherwise,
necessary to entitle it to own its properties and to transact the
businesses in which is now engaged.
(v) The Cooperative Corporation complies in all material
respects with all applicable legal requirements. The Cooperative
Corporation is not in default or violation of any order, writ,
injunction, decree or demand of any governmental authority, the
violation of which might materially adversely affect the condition
(financial or otherwise) or business of the Cooperative Corporation.
(vi) The Company has delivered to the Purchaser or its designee
each of the following documents (collectively, the "Cooperative Loan
Documents"): (i) the Cooperative Loan Note, duly endorsed in accordance
with the endorsement requirements for Mortgage Notes set forth in this
Agreement, (ii) the Pledge Agreement, accompanied by an Assignment of
Pledge Agreement, in recordable form, (iii) the corporation stock,
shares or membership certificate accompanied by a stock power which
authorizes the lender to transfer shares in the event of a default under
the Cooperative Loan Documents, (iv) the proprietary lease or occupancy
agreement, accompanied by an assignment in blank of such proprietary
lease, (v) a recognition agreement executed by the Cooperative
Corporation, which requires the Cooperative Corporation to recognize the
rights of the lender and its successors in interest and assigns, under
the Cooperative Loan, accompanied by an assignment of such recognition
agreement in blank, (vi) UCC-1 financing statements with recording
information thereon from the appropriate state and county recording
offices if necessary to perfect the security interest of the Cooperative
Loan under the Uniform Commercial Code in the state in which the
Cooperative Project is located, accompanied by UCC-3 financing
statements executed in blank for recordation of the change in the
secured party thereunder, and (vii) any guarantees, if applicable. The
Cooperative Loan Documents are assignable to the Purchaser and its
successors and assigns and have been duly assigned to the Purchaser in
accordance with this sub-section (6).
(vii) The Pledge Agreement contains customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of
the benefits of the security provided thereby.
(zz) No Fraud. Company does not have actual knowledge of any
material misrepresentation, fraud or similar occurrence with respect to a
Mortgage Loan that has taken place on the part of any person including without
limitation the Mortgagor, any appraiser, any builder or developer, or any other
party involved in the origination of the Mortgage Loan or, in the application of
any insurance in relation to such Mortgage Loan; no predatory or deceptive
lending practices, including, without limitation, the extension of credit
without regard to the ability of the borrower to repay and the extension of
credit which has no apparent benefit to the borrower, were employed in the
origination of the Mortgage Loan. The documents, instruments and agreements
submitted for loan underwriting were not falsified and contain no untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the information and statements therein not
misleading;
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(aaa) Mortgagor Acknowledgment. The Mortgagor has executed a
statement to the effect that the Mortgagor has received all disclosure materials
required by applicable law with respect to the making of adjustable rate
mortgage loans. The Company shall maintain such statement in the Mortgage File;
(bbb) Compliance with Anti-Money Laundering Laws. The Company has
complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
"Anti-Money Laundering Laws"); the Company has established an anti-money
laundering compliance program as required by the Anti-Money Laundering Laws and
the regulations promulgated by the Office of Foreign Assets Control ("OFAC") of
the United States Department of Treasury, has conducted the requisite due
diligence in connection with the origination of each Mortgage Loan for purposes
of the Anti-Money Laundering Laws that also requires regular checks of the
Specially Designated Nationals ("SDN") list issued by OFAC, including with
respect to the legitimacy of the applicable Mortgagor and the origin of the
assets used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws.
(ccc) Credit Reporting. The Company has fully furnished in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information on the Mortgagor credit files to Equifax,
Experian and Trans Union Credit Information Company on a monthly basis. Prior to
the Transfer Date, the Company shall have transmitted full-file credit reporting
data for each Mortgage Loan pursuant to Xxxxxx Xxx Guide Announcement 95-19,
and, for each Mortgage Loan, prior to the Transfer Date, the Company shall have
reported one of the following statuses each month as follows: new origination,
current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or charged-off;
(ddd) Points and Fees; Mortgagor Acknowledgment. All points, fees
and charges (including finance charges), whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing of
each Mortgage Loan has been disclosed in writing to the Mortgagor in accordance
with applicable state and federal law and regulation. Except in the case of a
Mortgage Loan in an original principal amount of less than $60,000 which would
have resulted in an unprofitable origination, no Mortgagor was charged "points
and fees" (whether or not financed) in an amount greater than 5% of the
principal amount of such Mortgage Loan, such 5% limitation is calculated in
accordance with Xxxxxx Mae's anti-predatory lending requirements as set forth in
the Xxxxxx Xxx Selling Guide. The Mortgagor has executed a statement to the
effect that the Mortgagor has received all disclosure materials required by
applicable law with respect to the making of adjustable rate mortgage loans. The
Company shall maintain such statement in the Mortgage File;
(eee) Georgia Loans. No Mortgage Loan is a "High Cost Home Loan"
as defined in the Georgia Fair Lending Act, as amended (the "Georgia Act"). No
Mortgage Loan subject to the Georgia Act and secured by owner occupied real
property or an owner occupied manufactured home located in the State of Georgia
was originated (or modified) on or after October 1, 2002 through and including
March 6, 2003;
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(fff) New York Loans. No Mortgage Loan is a "High Cost Home Loan"
as defined in New York Banking Law 6-1;
(ggg) Arkansas Loans. No Mortgage Loan is a "High Cost Home Loan"
as defined in the Arkansas Home Loan Protection Act effective July 16, 2003 (Act
1340 of 2003);
(hhh) Kentucky Loans. No Mortgage Loan is a "High Cost Home Loan"
as defined in the Kentucky high-cost home loan statute effective June 24, 2003
(Ky. Rev. Stat. Section 360.100);
(iii) New Mexico Loans. No Mortgage Loan is a "High-Cost Home
Loan" as defined in the New Mexico Home Loan Protection Act effective January 1,
2004 (N.M. Stat. Xxx. xx.xx. 58-21A-1 et seq.);
(jjj) New Jersey Loans. No Mortgage Loan is a "High Cost Home
Loan" as defined in the New Jersey Home Ownership Security Act of 2002 (the "NJ
Act");
(kkk) Illinois Mortgage Loans. No Mortgage Loan is a "High-Risk
Home Loan" as defined in the Illinois High-Risk Home Loan Act effective January
1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.) No Mortgage Loan for which the
related Mortgaged Property is located in the state of Illinois has a Mortgage
Interest Rate greater than 8% and fees equal to or in excess of 3% of the
principal amount of the loan.
(lll) Massachusetts Mortgage Loans. No Mortgage Loan is a
"High-Cost Home Mortgage Loan" as defined in the Massachusetts Predatory Home
Loan Practices Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C);
(mmm) Qualified Mortgage. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code;
(nnn) Underwriting Methodology. The methodology used in
underwriting the extension of credit for each Mortgage Loan employs objective
mathematical principles which relate the Mortgagor's income, assets and
liabilities to the proposed payment and such underwriting methodology does not
rely on the extent of the Mortgagor's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination (application/approval) the
Mortgagor had a reasonable ability to make timely payments on the Mortgage Loan
(ooo) Higher Cost Products. No Mortgagor was encouraged or
required to select a Mortgage Loan product offered by the Mortgage Loan's
originator which is a higher cost product designed for less creditworthy
borrowers, unless at the time of the Mortgage Loan's origination, such Mortgagor
did not qualify taking into account credit history and debt to income ratios for
a lower cost credit product then offered by the Mortgage Loan's originator or
any affiliate of the Mortgage Loan's originator. If, at the time of loan
application, the Mortgagor may have qualified for a lower cost credit product
then offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the Mortgagor's application
to such affiliate for underwriting consideration; and
35
(ppp) Arbitration. No Mortgage Loan is subject to mandatory
arbitration except when the terms of the arbitration also contain a waiver
provision that provides that in the event of a sale or transfer of the Mortgage
Loan or interest in the Mortgage Loan to Xxxxxx Mae, the terms of the
arbitration are null and void. The Company hereby covenants that the Company or
servicer of the Mortgage Loan, as applicable, will notify the Mortgagor in
writing within 60 days of the sale or transfer of the Mortgage Loan to Xxxxxx
Xxx that the terms of the arbitration are null and void.
(qqq) Balloon Mortgage Loans; No Convertibility. No Mortgage Loan
is convertible to a fixed rate mortgage loan. No Mortgage Loan is a balloon
mortgage loan that has an original stated maturity of less than seven (7) years;
(rrr) Negative Amortization Mortgage Loans. Each negative
amortization Mortgage Loan is payable each month in monthly installments of
principal and interest in accordance with the terms of the related Mortgage
Note, as indicated on the related Mortgage Loan Schedule. With respect to each
negative amortization Mortgage Loan, during the term of the Mortgage Loan, the
unpaid principal balance of the Mortgage Loan (not including Mortgage Loans
where the related Mortgaged Property is located in the state of New York) shall
not exceed 110% of the initial approved principal balance of the Mortgage Loan.
During the term of each negative amortization Mortgage Loan where the related
Mortgaged Property is located in the state of New York, the unpaid principal
balance of the Mortgage Loan shall not exceed 115% of the initial unpaid
principal balance of the Mortgage Loan
Section 3.03 Remedies for Breach of Representations and
Warranties.
(a)It is understood and agreed that the representations and
warranties set forth in Sections 3.01 and 3.02 shall survive the sale of the
Mortgage Loans to the Purchaser and the delivery of the Mortgage Loan Documents
to the Custodian and shall inure to the benefit of the Purchaser,
notwithstanding any restrictive or qualified endorsement on any Mortgage Note or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. Upon discovery by either the Company or the Purchaser of a breach of any
of the foregoing representations and warranties which materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser, or
which materially and adversely affects the interests of Purchaser in the related
Mortgage Loan in the case of a representation and warranty relating to a
particular Mortgage Loan (in the case of any of the foregoing, a "Breach"), the
party discovering such Breach shall give prompt written notice to the other.
36
Within 60 days of the earlier of either discovery by or notice to
the Company of any Breach of a representation or warranty, the Company shall use
its best efforts promptly to cure such Breach in all material respects and, if
such Breach cannot be cured, the Company shall, at the Purchaser's option and
subject to Section 3.04, repurchase such Mortgage Loan at the Repurchase Price.
In the event that a Breach shall involve any representation or warranty set
forth in Section 3.01, and such Breach cannot be cured within 60 days of the
earlier of either discovery by or notice to the Company of such Breach, all of
the Mortgage Loans shall, at the Purchaser's option and subject to Section 3.04,
be repurchased by the Company at the Repurchase Price. However, if the Breach
shall involve a representation or warranty set forth in Section 3.02 and the
Company discovers or receives notice of any such Breach within 120 days of the
related Closing Date, the Company shall, at the Purchaser's option and provided
that the Company has a Qualified Substitute Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan (a
"Deleted Mortgage Loan") and substitute in its place a Qualified Substitute
Mortgage Loan or Loans, provided that any such substitution shall be effected
not later than 120 days after the related Closing Date. If the Company has no
Qualified Substitute Mortgage Loan, it shall repurchase the deficient Mortgage
Loan. Any repurchase of a Mortgage Loan or Loans pursuant to the foregoing
provisions of this Section 3.03 shall be accomplished by deposit in the
Custodial Account of the amount of the Repurchase Price for distribution to
Purchaser on the next scheduled Remittance Date, after deducting therefrom any
amount received in respect of such repurchased Mortgage Loan or Loans and being
held in the Custodial Account for future distribution.
At the time of repurchase or substitution, the Purchaser and the
Company shall arrange for the reassignment of the Deleted Mortgage Loan to the
Company and the delivery to the Company of any documents held by the Custodian
relating to the Deleted Mortgage Loan. In the event of a repurchase or
substitution, the Company shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase or substitution has taken
place, amend the related Mortgage Loan Schedule to reflect the withdrawal of the
Deleted Mortgage Loan from this Agreement, and, in the case of substitution,
identify a Qualified Substitute Mortgage Loan and amend the related Mortgage
Loan Schedule to reflect the addition of such Qualified Substitute Mortgage Loan
to this Agreement. In connection with any such substitution, the Company shall
be deemed to have made as to such Qualified Substitute Mortgage Loan the
representations and warranties set forth in this Agreement except that all such
representations and warranties set forth in this Agreement shall be deemed made
as of the date of such substitution. The Company shall effect such substitution
by delivering to the Custodian for such Qualified Substitute Mortgage Loan the
documents required by Section 2.03, with the Mortgage Note endorsed as required
by Section 2.03. No substitution will be made in any calendar month after the
Determination Date for such month. The Company shall deposit in the Custodial
Account the Monthly Payment less the Servicing Fee due on such Qualified
Substitute Mortgage Loan or Loans in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by the Company. For the
month of substitution, distributions to Purchaser shall include the Monthly
Payment due on any Deleted Mortgage Loan in the month of substitution, and the
Company shall thereafter be entitled to retain all amounts subsequently received
by the Company in respect of such Deleted Mortgage Loan.
For any month in which the Company substitutes a Qualified
Substitute Mortgage Loan for a Deleted Mortgage Loan, the Company shall
determine the amount (if any) by which the aggregate principal balance of all
Qualified Substitute Mortgage Loans as of the date of substitution is less than
the aggregate Stated Principal Balance of all Deleted Mortgage Loans (after
application of scheduled principal payments due in the month of substitution).
The amount of such shortfall shall be distributed by the Company in the month of
substitution pursuant to Section 5.01. Accordingly, on the date of such
substitution, the Company shall deposit from its own funds into the Custodial
Account an amount equal to the amount of such shortfall.
37
In addition to such repurchase or substitution obligation, the
Company shall indemnify the Purchaser and hold it harmless against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees and
related costs, judgments, and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from, a
Breach of the Company representations and warranties contained in this
Agreement. It is understood and agreed that the obligations of the Company set
forth in this Section 3.03 to cure, substitute for or repurchase a defective
Mortgage Loan and to indemnify the Purchaser as provided in this Section 3.03
constitute the sole remedies of the Purchaser respecting a Breach of the
foregoing representations and warranties.
Any cause of action against the Company relating to or arising
out of the Breach of any representations and warranties made in Sections 3.01
and 3.02 shall accrue as to any Mortgage Loan upon (i) discovery of such Breach
by the Purchaser or notice thereof by the Company to the Purchaser, (ii)
failures by the Company to cure such Breach or repurchase such Mortgage Loan as
specified above, and (iii) demand upon the Company by the Purchaser for
compliance with this Agreement.
(b)With respect to any Mortgage Loan, if the related Mortgagor
has not made the Mortgage Loan's first or second Monthly Payment due to the
Purchaser after the related Closing Date within 30 days of its first Due Date (a
"First Payment Default"), the Company shall promptly repurchase such Mortgage
Loan from the Purchaser in accordance with Section 3.03(a) hereof. Company shall
promptly notify the Purchaser of the occurrence of a First Payment Default.
Section 3.04 Restrictions and Requirements Applicable in the
Event that a Mortgage Loan is Acquired by a REMIC.
In the event that any Mortgage Loan is held by a REMIC,
notwithstanding any contrary provision of this Agreement, the following
provisions shall be applicable to such Mortgage Loan:
(A) Repurchase of Mortgage Loans.
With respect to any Mortgage Loan that is not in default or as to
which no default is imminent, no repurchase or substitution pursuant to
Subsection 3.03, 3.05 or 7.02 shall be made, unless, if so required by the
applicable REMIC Documents the Company has obtained an Opinion of Counsel to the
effect that such repurchase will not (i) result in the imposition of taxes on
"prohibited transactions" of such REMIC (as defined in Section 860F of the Code)
or otherwise subject the REMIC to tax, or (ii) cause the REMIC to fail to
qualify as a REMIC at any time.
38
(B) General Servicing Obligations.
The Company shall sell any REO Property within three years after
its acquisition by the REMIC unless (i) the Company applies for an extension of
such three-year period from the Internal Revenue Service pursuant to the REMIC
Provisions and Code Section 856(e)(3), in which event such REO Property shall be
sold within the applicable extension period, or (ii) the Company obtains for the
Purchaser an Opinion of Counsel, addressed to the Purchaser and the Company, to
the effect that the holding by the REMIC of such REO Property subsequent to such
three year period will not result in the imposition of taxes on "prohibited
transactions" as defined in Section 860F of the Code or cause the REMIC to fail
to qualify as a REMIC under the REMIC Provisions or comparable provisions of
relevant state laws at any time. The Company shall manage, conserve, protect and
operate each REO Property for the Purchaser solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) or
result in the receipt by the REMIC of any "income from non-permitted assets"
within the meaning of Section 860F(a)(2)(B) of the Code or any "net income from
foreclosure property" which is subject to taxation under Section 860G(a)(1) of
the Code. Pursuant to its efforts to sell such REO Property, the Company shall
either itself or through an agent selected by the Company protect and conserve
such REO Property in the same manner and to such extent as is customary in the
locality where such REO Property is located and may, incident to its
conservation and protection of the interests of the Purchaser, rent the same, or
any part thereof, as the Company deems to be in the best interest of the Company
and the Purchaser for the period prior to the sale of such REO Property;
provided, however, that any rent received or accrued with respect to such REO
Property qualifies as "rents from real property" as defined in Section 856(d) of
the Code.
(C) Additional Covenants.
In addition to the provision set forth in this Section 3.04, if a
REMIC election is made with respect to the arrangement under which any of the
Mortgage Loans or REO Properties are held, then, with respect to such Mortgage
Loans and/or REO Properties, and notwithstanding the terms of this Agreement,
the Company shall not take any action, cause the REMIC to take any action or
fail to take (or fail to cause to be taken) any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) endanger the
status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon
the REMIC (including but not limited to the tax on "prohibited transactions" as
defined in Section 860F(a)(2) of the Code and the tax on "contributions" to a
REMIC set forth in Section 860G(d) of the Code) unless the Company has received
an Opinion of Counsel (at the expense of the party seeking to take such action)
to the effect that the contemplated action will not endanger such REMIC status
or result in the imposition of any such tax.
Subject to Section 7.01 of this Agreement, if a REMIC election is
made with respect to the arrangement under which any Mortgage Loans or REO
Properties are held, the Company shall amend this Agreement at the Purchaser's
expense such that it will meet all Rating Agency requirements.
39
Section 3.05 Review of Mortgage Loans.
To the extent provided for in the related Purchase Price and
Terms Letter, the Purchaser shall have the post-Closing Date right to review the
Mortgage Files and obtain BPOs on the Mortgaged Properties relating to the
Mortgage Loans to be purchased on the related Closing Date. In addition,
Purchaser shall have the right to reject any Mortgage Loan which in the
Purchaser's reasonable determination (i) fails to conform to Company's
Underwriting Guidelines, provided that with respect to Mortgage Loans which do
not conform with the Underwriting Guidelines, the Purchaser will review the
credit/risk profile of such Mortgage Loan to determine, in the Purchaser's sole
discretion, if there may be compensating factors present that would warrant the
acceptance of such Mortgage Loan, (ii) were underwritten without verification of
Mortgagor's income and assets (if so required under the applicable documentation
program) and there is no credit report and FICO Score on file, (iii) the value
of the Mortgaged Property pursuant to any BPO is less than 85% of the lesser of
(A) the original appraised value of the Mortgaged Property or (B) the purchase
price of the Mortgaged Property as of the date of origination or (iv) the
Purchaser does not deem the Mortgage Loan to be an acceptable credit risk. In
the event that the Purchaser so rejects any Mortgage Loan, the Company shall
repurchase the rejected Mortgage Loan at the Repurchase Price in the manner
prescribed in Section 3.03 upon receipt of notice from the Purchaser of the
rejection of such Mortgage Loan. Any rejected Mortgage Loan shall be removed
from the terms of this Agreement. The Company shall make available files
required by Purchaser in order to complete its review, including all CRA/HMDA
required data fields. To the extent that the Purchaser's review discloses that
the Mortgage Loans do not conform to the Underwriting Guidelines or the terms
set forth in the related Purchase Price and Terms Letter, the Purchaser may in
its sole discretion increase its due diligence review and obtain additional
BPO's or other property evaluations.
ARTICLE IV
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 4.01 Company to Act as Servicer.
The Company, as an independent contractor, shall service and
administer the Mortgage Loans and shall have full power and authority, acting
alone, to do any and all things in connection with such servicing and
administration which the Company may deem necessary or desirable, consistent
with the terms of this Agreement and with Accepted Servicing Practices.
Consistent with the terms of this Agreement, the Company may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor if in the Company's reasonable and prudent
determination such waiver, modification, postponement or indulgence is not
materially adverse to the Purchaser, provided, however, that (a) the Company
shall not make any future advances with respect to a Mortgage Loan and (unless
the Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of the Company, imminent and the Company has obtained the
prior written consent of the Purchaser) the Company shall not permit any
modification of any material term of any Mortgage Loan including any
modifications that would change the Mortgage Interest Rate, defer or forgive the
payment of principal or interest, reduce or increase the outstanding principal
balance (except for actual payments of principal) or change the final maturity
date on such Mortgage Loan and (b) the Company may not waive any prepayment
penalty unless such waiver would reduce the loss severity of a Mortgage Loan,
and (c) the Company may not waive any prepayment penalty for the refinancing of
a Mortgage Loan. In the event of any such modification which permits the
deferral of interest or principal payments on any Mortgage Loan, the Company
shall, on the Business Day immediately preceding the Remittance Date in any
month in which any such principal or interest payment has been deferred, deposit
in the Custodial Account from its own funds, in accordance with Section 5.03,
the difference between (a) such month's principal and one month's interest at
the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Company shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 5.03. Without limiting the generality of the
foregoing, the Company shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Purchasers, all instruments
of satisfaction or cancellation, or of partial or full release, discharge and
all other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Company, the
Purchaser shall furnish the Company with any powers of attorney and other
documents necessary or appropriate to enable the Company to carry out its
servicing and administrative duties under this Agreement.
40
In servicing and administering the Mortgage Loans, the Company
shall employ procedures (including collection procedures) and exercise the same
care that it customarily employs and exercises in servicing and administering
mortgage loans for its own account, giving due consideration to Accepted
Servicing Practices where such practices do not conflict with the requirements
of this Agreement, and the Purchaser's reliance on the Company.
Section 4.02 Liquidation of Mortgage Loans.
In the event that any payment due under any Mortgage Loan and not
postponed pursuant to Section 4.01 is not paid when the same becomes due and
payable, or in the event the Mortgagor fails to perform any other covenant or
obligation under the Mortgage Loan and such failure continues beyond any
applicable grace period, the Company shall take such action as (1) the Company
would take under similar circumstances with respect to a similar mortgage loan
held for its own account for investment, (2) shall be consistent with Accepted
Servicing Practices, (3) the Company shall determine prudently to be in the best
interest of Purchaser, and (4) is consistent with any related PMI Policy. In the
event that any payment due under any Mortgage Loan is not postponed pursuant to
Section 4.01 and remains delinquent for a period of 90 days or any other default
continues for a period of 90 days beyond the expiration of any grace or cure
period, the Company shall commence foreclosure proceedings, provided that, prior
to commencing foreclosure proceedings, the Company shall notify the Purchaser in
writing of the Company's intention to do so, and the Company shall not commence
foreclosure proceedings if the Purchaser objects to such action within 10
Business Days of receiving such notice and following such objection, the Company
shall have no obligation to make Monthly Advances with respect to such Mortgage
Loan. In such connection, the Company shall from its own funds make all
necessary and proper Servicing Advances, provided, however, that the Company
shall not be required to expend its own funds in connection with any foreclosure
or towards the restoration or preservation of any Mortgaged Property, unless it
shall determine (a) that such preservation, restoration and/or foreclosure will
increase the proceeds of liquidation of the Mortgage Loan to Purchaser after
reimbursement to itself for such expenses and (b) that such expenses will be
recoverable by it either through Liquidation Proceeds (respecting which it shall
have priority for purposes of withdrawals from the Custodial Account pursuant to
Section 4.05) or through Insurance Proceeds (respecting which it shall have
similar priority).
Notwithstanding anything to the contrary contained herein, in
connection with a foreclosure or acceptance of a deed in lieu of foreclosure, in
the event the Company has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests an environmental inspection or review of such Mortgaged
Property to be conducted by a qualified inspector. Upon completion of the
inspection, the Company shall promptly provide the Purchaser with a written
report of the environmental inspection.
41
After reviewing the environmental inspection report, the
Purchaser shall determine how the Company shall proceed with respect to the
Mortgaged Property. In the event (a) the environmental inspection report
indicates that the Mortgaged Property is contaminated by hazardous or toxic
substances or wastes and (b) the Purchaser directs the Company to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall be
reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Company, the
Company shall be entitled to be reimbursed from amounts in the Custodial Account
pursuant to Section 4.05 hereof. In the event the Purchaser directs the Company
not to proceed with foreclosure or acceptance of a deed in lieu of foreclosure,
the Company shall be reimbursed for all Servicing Advances made with respect to
the related Mortgaged Property from the Custodial Account pursuant to Section
4.05 hereof.
Section 4.03 Collection of Mortgage Loan Payments.
Continuously from the date hereof until the principal and
interest on all Mortgage Loans are paid in full, the Company shall proceed
diligently to collect all payments due under each of the Mortgage Loans when the
same shall become due and payable and shall ascertain and estimate Escrow
Payments and all other charges that will become due and payable with respect to
the Mortgage Loan and the Mortgaged Property, to the end that the installments
payable by the Mortgagors will be sufficient to pay such charges as and when
they become due and payable.
Section 4.04 Establishment of and Deposits to Custodial Account.
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan separate and apart from any of its own
funds and general assets and shall establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, titled "IndyMac Bank,
FSB in trust for the Purchaser of Conventional Residential Conventional
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2005-1 and
various Mortgagors". The Custodial Account shall be established with a Qualified
Depository acceptable to the Purchaser. Any funds deposited in the Custodial
Account shall at all times be fully insured to the full extent permitted under
applicable law. Funds deposited in the Custodial Account may be drawn on by the
Company in accordance with Section 4.05. The creation of any Custodial Account
shall be evidenced by a certification in the form of Exhibit D-1 hereto, in the
case of an account established with the Company, or by a letter agreement in the
form of Exhibit D-2 hereto, in the case of an account held by a depository other
than the Company. A copy of such certification or letter agreement shall be
furnished to the Purchaser and, upon request, to any subsequent Purchaser.
42
The Company shall deposit in the Custodial Account on a daily
basis, and retain therein, the following collections received by the Company and
payments made by the Company after the related Cut-off Date, other than payments
of principal and interest due on or before the related Cut-off Date, or received
by the Company prior to the related Cut-off Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal on the Mortgage Loans,
including all Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans
adjusted to the Mortgage Loan Remittance Rate;
(iii) all Liquidation Proceeds;
(iv) all Insurance Proceeds including amounts required to be
deposited pursuant to Section 4.10 (other than proceeds to be held in
the Escrow Account and applied to the restoration or repair of the
Mortgaged Property or released to the Mortgagor in accordance with
Section 4.14), Section 4.11 and Section 4.15;
(v) all Condemnation Proceeds which are not applied to the
restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14;
(vi) any amount required to be deposited in the Custodial
Account pursuant to Section 4.01, 4.09, 5.03, 6.01 or 6.02;
(vii) any amounts payable in connection with the repurchase of
any Mortgage Loan pursuant to Section 3.03, 3.05 or 3.06 and all amounts
required to be deposited by the Company in connection with a shortfall
in principal amount of any Qualified Substitute Mortgage Loan pursuant
to Section 3.03;
(viii) with respect to each Principal Prepayment in full or in
part, the Prepayment Interest Shortfall Amount, if any, for the month of
distribution. Such deposit shall be made from the Company's own funds,
without reimbursement therefor up to a maximum amount per month of the
Servicing Fee actually received for such month for the Mortgage Loans;
(ix) any amounts required to be deposited by the Company
pursuant to Section 4.11 in connection with the deductible clause in any
blanket hazard insurance policy; and
(x) any amounts received with respect to or related to any REO
Property and all REO Disposition Proceeds pursuant to Section 4.16.
The foregoing requirements for deposit into the Custodial Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges and
assumption fees, to the extent permitted by Section 6.01, need not be deposited
by the Company into the Custodial Account. Any interest paid on funds deposited
in the Custodial Account by the depository institution shall accrue to the
benefit of the Company and the Company shall be entitled to retain and withdraw
such interest from the Custodial Account pursuant to Section 4.05.
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Section 4.05 Permitted Withdrawals From Custodial Account.
The Company shall, from time to time, withdraw funds from the
Custodial Account for the following purposes:
(i) to make payments to the Purchaser in the amounts and in the
manner provided for in Section 5.01;
(ii) to reimburse itself for Monthly Advances of the Company's
funds made pursuant to Section 5.03, the Company's right to reimburse
itself pursuant to this subclause (ii) being limited to amounts received
on the related Mortgage Loan which represent late payments of principal
and/or interest respecting which any such advance was made, it being
understood that, in the case of any such reimbursement, the Company's
right thereto shall be prior to the rights of Purchaser, except that,
where the Company is required to repurchase a Mortgage Loan pursuant to
Section 3.03, 3.04, 3.05 or 6.02, the Company's right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts
required to be paid to the Purchaser with respect to such Mortgage Loan;
(iii) to reimburse itself for unreimbursed Servicing Advances,
and for any unpaid Servicing Fees, the Company's right to reimburse
itself pursuant to this subclause (iii) with respect to any Mortgage
Loan being limited to related Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and such other amounts as may be collected
by the Company from the Mortgagor or otherwise relating to the Mortgage
Loan, it being understood that, in the case of any such reimbursement,
the Company's right thereto shall be prior to the rights of Purchaser
except where the Company is required to repurchase a Mortgage Loan
pursuant to Section 3.03, 3.04, 3.05 or 6.02, in which case the
Company's right to such reimbursement shall be subsequent to the payment
to the Purchasers of the Repurchase Price pursuant to such sections and
all other amounts required to be paid to the Purchasers with respect to
such Mortgage Loan;
(iv) to pay itself interest on funds deposited in the Custodial
Account;
(v) to reimburse itself for expenses incurred and reimbursable
to it pursuant to Section 9.01;
(vi) to pay any amount required to be paid pursuant to Section
4.16 related to any REO Property, it being understood that in the case
of any such expenditure or withdrawal related to a particular REO
Property, the amount of such expenditure or withdrawal from the
Custodial Account shall be limited to amounts on deposit in the
Custodial Account with respect to the related REO Property;
(vii) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(viii) to withdraw funds deposited in error.
44
In the event that the Custodial Account is interest bearing, on
each Remittance Date, the Company shall withdraw all funds from the Custodial
Account except for those amounts which, pursuant to Section 5.01, the Company is
not obligated to remit on such Remittance Date. The Company may use such
withdrawn funds only for the purposes described in this Section 4.05.
Section 4.06 Establishment of and Deposits to Escrow Account.
The Company shall segregate and hold all funds collected and
received pursuant to a Mortgage Loan constituting Escrow Payments separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more Escrow Accounts, in the form of time deposit or demand
accounts, titled, "IndyMac Bank, FSB, in trust for the Purchaser of Conventional
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2005-1, and
various Mortgagors". The Escrow Accounts shall be established with a Qualified
Depository, in a manner which shall provide maximum available insurance
thereunder. Funds deposited in the Escrow Account may be drawn on by the Company
in accordance with Section 4.07. The creation of any Escrow Account shall be
evidenced by a certification in the form of Exhibit E-1 hereto, in the case of
an account established with the Company, or by a letter agreement in the form of
Exhibit E-2 hereto, in the case of an account held by a depository other than
the Company. A copy of such certification shall be furnished to the Purchaser
and, upon request, to any subsequent Purchaser.
The Company shall deposit in the Escrow Account or Accounts on a
daily basis, and retain therein:
(i) all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting timely payment of any such items as
required under the terms of this Agreement; and
(ii) all amounts representing Insurance Proceeds or
Condemnation Proceeds which are to be applied to the restoration or
repair of any Mortgaged Property.
The Company shall make withdrawals from the Escrow Account only
to effect such payments as are required under this Agreement, as set forth in
Section 4.07. The Company shall be entitled to retain any interest paid on funds
deposited in the Escrow Account by the depository institution, other than
interest on escrowed funds required by law to be paid to the Mortgagor. To the
extent required by law, the Company shall pay interest on escrowed funds to the
Mortgagor notwithstanding that the Escrow Account may be non-interest bearing or
that interest paid thereon is insufficient for such purposes.
Section 4.07 Permitted Withdrawals From Escrow Account.
Withdrawals from the Escrow Account or Accounts may be made by
the Company only:
(i) to effect timely payments of ground rents, taxes,
assessments, water rates, mortgage insurance premiums, condominium
charges, fire and hazard insurance premiums or other items constituting
Escrow Payments for the related Mortgage;
45
(ii) to reimburse the Company for any Servicing Advances made
by the Company pursuant to Section 4.08 with respect to a related
Mortgage Loan, but only from amounts received on the related Mortgage
Loan which represent late collections of Escrow Payments thereunder;
(iii) to refund to any Mortgagor any funds found to be in
excess of the amounts required under the terms of the related Mortgage
Loan;
(iv) for transfer to the Custodial Account and application to
reduce the principal balance of the Mortgage Loan in accordance with the
terms of the related Mortgage and Mortgage Note;
(v) for application to restoration or repair of the Mortgaged
Property in accordance with the procedures outlined in Section 4.14;
(vi) to pay to the Company, or any Mortgagor to the extent
required by law, any interest paid on the funds deposited in the Escrow
Account;
(vii) to clear and terminate the Escrow Account on the
termination of this Agreement; and
(viii) to withdraw funds deposited in error.
Section 4.08 Payment of Taxes, Insurance and Other Charges.
With respect to each Mortgage Loan, the Company shall maintain
accurate records reflecting the status of ground rents, taxes, assessments,
water rates, sewer rents, and other charges which are or may become a lien upon
the Mortgaged Property and the status of PMI Policy premiums and fire and hazard
insurance coverage and shall obtain, from time to time, all bills for the
payment of such charges (including renewal premiums) and shall effect payment
thereof prior to the applicable penalty or termination date, employing for such
purpose deposits of the Mortgagor in the Escrow Account which shall have been
estimated and accumulated by the Company in amounts sufficient for such
purposes, as allowed under the terms of the Mortgage. To the extent that a
Mortgage does not provide for Escrow Payments, the Company shall determine that
any such payments are made by the Mortgagor at the time they first become due.
The Company assumes full responsibility for the timely payment of all such bills
and shall effect timely payment of all such charges irrespective of each
Mortgagor's faithful performance in the payment of same or the making of the
Escrow Payments, and the Company shall make advances from its own funds to
effect such payments; provided, that the Seller shall not be required to make
any Nonrecoverable Advance. In the event that the Seller determines that any
advance would be a Nonrecoverable Advance, the Seller shall promptly deliver to
the Purchaser notification of such determination, accompanies by an officer's
certificate of the Seller setting forth the reason such advance is determined to
be nonrecoverable. Upon liquidations of a Mortgage Loan, if the Liquidation
Proceeds are insufficient to reimburse the Seller for any Nonrecoverable
Advances made, the Purchaser shall reimburse the Seller for such shortfall.
46
Section 4.09 Protection of Accounts.
The Company may transfer the Custodial Account or the Escrow
Account to a different Qualified Depository from time to time. Such transfer
shall be made only upon obtaining the consent of the Purchaser, which consent
shall not be withheld unreasonably.
The Company shall bear any expenses, losses or damages sustained
by the Purchaser because the Custodial Account and/or the Escrow Account are not
demand deposit accounts.
Amounts on deposit in the Custodial Account and the Escrow
Account may at the option of the Company be invested in Eligible Investments;
provided that in the event that amounts on deposit in the Custodial Account or
the Escrow Account exceed the amount fully insured by the FDIC (the "Insured
Amount") the Company shall be obligated to invest the excess amount over the
Insured Amount in Eligible Investments on the same Business Day as such excess
amount becomes present in the Custodial Account or the Escrow Account. Any such
Eligible Investment shall mature no later than the Business Day prior to the
Remittance Date next following the date of such Eligible Investment, provided,
however, that if such Eligible Investment is an obligation of a Qualified
Depository (other than the Company) that maintains the Custodial Account or the
Escrow Account, then such Eligible Investment may mature on such Remittance
Date. Any such Eligible Investment shall be made in the name of the Company in
trust for the benefit of the Purchaser. All income on or gain realized from any
such Eligible Investment shall be for the benefit of the Company and may be
withdrawn at any time by the Company. Any losses incurred in respect of any such
investment shall be deposited in the Custodial Account or the Escrow Account, by
the Company out of its own funds immediately as realized.
Section 4.10 Maintenance of Hazard Insurance.
The Company shall cause to be maintained for each Mortgage Loan
hazard insurance such that all buildings upon the Mortgaged Property are insured
by a Qualified Insurer against loss by fire, hazards of extended coverage and
such other hazards as are customary in the area where the Mortgaged Property is
located, in an amount which is at least equal to the lesser of (i) the
replacement value of the improvements securing such Mortgage Loan and (ii) the
greater of (a) the outstanding principal balance of the Mortgage Loan and (b) an
amount such that the proceeds thereof shall be sufficient to prevent the
Mortgagor or the loss payee from becoming a co-insurer.
If upon origination of the Mortgage Loan, the related Mortgaged
Property was located in an area identified in the Federal Register by the Flood
Emergency Management Agency as having special flood hazards (and such flood
insurance has been made available) a flood insurance policy meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect with a Qualified Insurer in an amount representing coverage equal
to the lesser of (i) the minimum amount required, under the terms of coverage,
to compensate for any damage or loss on a replacement cost basis (or the unpaid
balance of the mortgage if replacement cost coverage is not available for the
type of building insured) and (ii) the maximum amount of insurance which is
available under the Flood Disaster Protection Act of 1973, as amended. If at any
time during the term of the Mortgage Loan, the Company determines in accordance
with applicable law and pursuant to the Xxxxxx Xxx Guides that a Mortgaged
Property is located in a special flood hazard area and is not covered by flood
insurance or is covered in an amount less than the amount required by the Flood
Disaster Protection Act of 1973, as amended, the Company shall notify the
related Mortgagor that the Mortgagor must obtain such flood insurance coverage,
and if said Mortgagor fails to obtain the required flood insurance coverage
within forty-five (45) days after such notification, the Company shall
immediately force place the required flood insurance on the Mortgagor's behalf.
47
If a Mortgage is secured by a unit in a condominium project, the
Company shall verify that the coverage required of the owner's association,
including hazard, flood, liability, and fidelity coverage, is being maintained
in accordance with then current Xxxxxx Mae requirements, and secure from the
owner's association its agreement to notify the Company promptly of any change
in the insurance coverage or of any condemnation or casualty loss that may have
a material effect on the value of the Mortgaged Property as security.
The Company shall cause to be maintained on each Mortgaged
Property earthquake or such other or additional insurance as may be required
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance, or pursuant to the
requirements of any private mortgage guaranty insurer, or as may be required to
conform with Accepted Servicing Practices.
In the event that any Purchaser or the Company shall determine
that the Mortgaged Property should be insured against loss or damage by hazards
and risks not covered by the insurance required to be maintained by the
Mortgagor pursuant to the terms of the Mortgage, the Company shall communicate
and consult with the Mortgagor with respect to the need for such insurance and
bring to the Mortgagor's attention the desirability of protection of the
Mortgaged Property.
All policies required hereunder shall name the Company as loss
payee and shall be endorsed with standard or union mortgagee clauses, without
contribution, which shall provide for at least 30 days prior written notice of
any cancellation, reduction in amount or material change in coverage.
The Company shall not interfere with the Mortgagor's freedom of
choice in selecting either his insurance carrier or agent, provided, however,
that the Company shall only accept any such insurance policies from Qualified
Insurers licensed to do business in the jurisdiction in which the Mortgaged
Property is located. The Company shall determine that such policies provide
sufficient risk coverage and amounts, that they insure the property owner, and
that they properly describe the property address. The Company shall furnish to
the Mortgagor a formal notice of expiration of any such insurance in sufficient
time for the Mortgagor to arrange for renewal coverage by the expiration date.
Pursuant to Section 4.04, any amounts collected by the Company
under any such policies (other than amounts to be deposited in the Escrow
Account and applied to the restoration or repair of the related Mortgaged
Property, or property acquired in liquidation of the Mortgage Loan, or to be
released to the Mortgagor, in accordance with the Company's normal servicing
procedures as specified in Section 4.14) shall be deposited in the Custodial
Account subject to withdrawal pursuant to Section 4.05.
48
Section 4.11 Maintenance of Mortgage Impairment Insurance.
In the event that the Company shall obtain and maintain a blanket
policy insuring against losses arising from fire and hazards covered under
extended coverage on all of the Mortgage Loans, then, to the extent such policy
provides coverage in an amount equal to the amount required pursuant to Section
4.10 and otherwise complies with all other requirements of Section 4.10, it
shall conclusively be deemed to have satisfied its obligations as set forth in
Section 4.10. Any amounts collected by the Company under any such policy
relating to a Mortgage Loan shall be deposited in the Custodial Account subject
to withdrawal pursuant to Section 4.05. Such policy may contain a deductible
clause, in which case, in the event that there shall not have been maintained on
the related Mortgaged Property a policy complying with Section 4.10, and there
shall have been a loss which would have been covered by such policy, the Company
shall deposit in the Custodial Account at the time of such loss the amount not
otherwise payable under the blanket policy because of such deductible clause,
such amount to deposited from the Company's funds, without reimbursement
therefor. Upon request of any Purchaser, the Company shall cause to be delivered
to such Purchaser a certificate of insurance setting forth the related coverage.
Section 4.12 Maintenance of Fidelity Bond and Errors and
Omissions Insurance.
The Company shall maintain with responsible companies, at its own
expense, a blanket Fidelity Bond and an Errors and Omissions Insurance Policy,
with broad coverage on all officers, employees or other persons acting in any
capacity requiring such persons to handle funds, money, documents or papers
relating to the Mortgage Loans ("Company Employees"). Any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be in the form of the Mortgage
Banker's Blanket Bond and shall protect and insure the Company against losses,
including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such Company Employees. Such Fidelity Bond and Errors and
Omissions Insurance Policy also shall protect and insure the Company against
losses in connection with the release or satisfaction of a Mortgage Loan without
having obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.12 requiring such Fidelity Bond and Errors and
Omissions Insurance Policy shall diminish or relieve the Company from its duties
and obligations as set forth in this Agreement. The minimum coverage under any
such bond and insurance policy shall be at least equal to the corresponding
amounts required by Xxxxxx Xxx in the Xxxxxx Mae Mortgage-Backed Securities
Selling and Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx' &
Servicers' Guide. Upon the request of any Purchaser, the Company shall cause to
be delivered to such Purchaser a certified true copy of such fidelity bond and
insurance policy, or a certificate of insurance setting forth the related
coverage, and a statement from the surety and the insurer that such fidelity
bond and insurance policy shall in no event be terminated or materially modified
without 30 days' prior written notice to the Purchaser.
49
Section 4.13 Inspections.
The Company shall inspect the Mortgaged Property as often as
deemed necessary by the Company to assure itself that the value of the Mortgaged
Property is being preserved. In addition, if any Mortgage Loan is more than 60
days delinquent, the Company immediately shall inspect the Mortgaged Property
and shall conduct subsequent inspections in accordance with Accepted Servicing
Practices or as may be required by the primary mortgage guaranty insurer. The
Company shall keep a written report of each such inspection.
Section 4.14 Restoration of Mortgaged Property.
The Company need not obtain the approval of the Purchaser prior
to releasing any Insurance Proceeds or Condemnation Proceeds to the Mortgagor to
be applied to the restoration or repair of the Mortgaged Property if such
release is in accordance with Accepted Servicing Practices. At a minimum, the
Company shall comply with the following conditions in connection with any such
release of Insurance Proceeds or Condemnation Proceeds:
(i) the Company shall receive satisfactory independent
verification of completion of repairs and issuance of any required
approvals with respect thereto;
(ii) the Company shall take all steps necessary to preserve the
priority of the lien of the Mortgage, including, but not limited to
requiring waivers with respect to mechanics' and materialmen's liens;
(iii) the Company shall verify that the Mortgage Loan is not in
default; and
(iv) pending repairs or restoration, the Company shall place
the Insurance Proceeds or Condemnation Proceeds in the Escrow Account.
If the Purchaser is named as an additional loss payee, the
Company is hereby empowered to endorse any loss draft issued in respect of such
a claim in the name of the Purchaser.
Section 4.15 Maintenance of PMI Policy; Claims.
(a)With respect to each Mortgage Loan, the Company shall, without
any cost to the Purchaser, maintain or cause the Mortgagor to maintain in full
force and effect a PMI Policy conforming to Xxxxxx Xxx requirements, and shall
pay or shall cause the Mortgagor to pay the premium thereon on a timely basis,
until the LTV of such Mortgage Loan is reduced to 80%. In the event that such
PMI Policy shall be terminated, the Company shall obtain from another Qualified
Insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated PMI Policy. If the insurer shall cease to
be a Qualified Insurer, the Company shall determine whether recoveries under the
PMI Policy are jeopardized for reasons related to the financial condition of
such insurer, it being understood that the Company shall in no event have any
responsibility or liability for any failure to recover under the PMI Policy for
such reason. If the Company determines that recoveries are so jeopardized, it
shall notify the Purchaser and the Mortgagor, if required, and obtain from
another Qualified Insurer a replacement insurance policy. The Company shall not
take any action which would result in noncoverage under any applicable PMI
Policy of any loss which, but for the actions of the Company would have been
covered thereunder. In connection with any assumption or substitution agreement
entered into or to be entered into pursuant to Section 6.01, the Company shall
promptly notify the insurer under the related PMI Policy, if any, of such
assumption or substitution of liability in accordance with the terms of such PMI
Policy and shall take all actions which may be required by such insurer as a
condition to the continuation of coverage under such PMI Policy. If such PMI
Policy is terminated as a result of such assumption or substitution of
liability, the Company shall obtain a replacement PMI Policy as provided above.
50
(b) With respect to each Mortgage Loan the Company shall
maintain in full force and effect any LPMI Policy, and from time to time,
withdraw the premium with respect to such Mortgage Loans from the Custodial
Account in order to pay the premium thereon on a timely basis. In the event that
the interest payments made with respect to the Mortgage Loan are less than the
premium with respect to the LPMI Policy, the Company shall advance from its own
funds the amount of any such shortfall in the LPMI Policy premiums, in payment
of such premium. Any such advance shall be a Servicing Advance subject to
reimbursement pursuant to the provisions on Section 4.05. In the event that such
LPMI Policy shall be terminated, the Company shall obtain from another Qualified
Insurer a comparable replacement policy, with a total coverage equal to the
remaining coverage of such terminated LPMI Policy, at substantially the same fee
level. If the insurer shall cease to be a Qualified Insurer, the Company shall
determine whether recoveries under the LPMI Policy are jeopardized for reasons
related to the financial condition of such insurer, it being understood that the
Company shall in no event have any responsibility or liability for any failure
to recover under the LPMI Policy for such reason. If the Company determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Company shall not take any action which would result in noncoverage
under any applicable LPMI Policy of any loss which, but for the actions of the
Company would have been covered thereunder. In connection with any assumption or
substitution agreement entered into or to be entered into pursuant to Section
4.01, the Company shall promptly notify the insurer under the related LPMI
Policy, if any, of such assumption or substitution of liability in accordance
with the terms of such LPMI Policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such LPMI Policy. If such LPMI Policy is terminated as a result of such
assumption or substitution of liability, the Company shall obtain a replacement
LPMI Policy as provided above.
(c) Purchaser, in its sole discretion, at any time, may (i)
either obtain an additional LPMI Policy on any Mortgage Loan which already has
an LPMI Policy in place, or (ii) obtain a LPMI Policy for any Mortgage Loan
which does not already have a LPMI Policy in place. In any event, the Company
agrees to administer such LPMI Policies in accordance with the Agreement or any
Reconstitution Agreement.
(d)In connection with its activities as servicer, the Company
agrees to prepare and present, on behalf of itself and the Purchaser, claims to
the insurer under any PMI Policy in a timely fashion in accordance with the
terms of such PMI Policy and, in this regard, to take such action as shall be
necessary to permit recovery under any PMI Policy respecting a defaulted
Mortgage Loan. Pursuant to Section 4.04, any amounts collected by the Company
under any PMI Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 4.05.
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Section 4.16 Title, Management and Disposition of REO Property.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Purchaser or as the Purchaser shall direct.
The Company shall manage, conserve, protect and operate each REO
Property for the Purchaser solely for the purpose of its prompt disposition and
sale. The Company, either itself or through an agent selected by the Company,
shall manage, conserve, protect and operate the REO Property in the same manner
that it manages, conserves, protects and operates other foreclosed property for
its own account, and in the same manner that similar property in the same
locality as the REO Property is managed. The Company shall attempt to sell the
same (and may temporarily rent the same for a period not greater than one year,
except as otherwise provided below) on such terms and conditions as the Company
deems to be in the best interest of the Purchaser.
The Company shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, unless (i)
(A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, and (ii) the Company
determines, and gives an appropriate notice to the Purchaser to such effect,
that a longer period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, (i) the Company shall report
monthly to the Purchaser as to the progress being made in selling such REO
Property and (ii) if, with the written consent of the Purchaser, a purchase
money mortgage is taken in connection with such sale, such purchase money
mortgage shall name the Company as mortgagee, and such purchase money mortgage
shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Company and Purchaser shall be entered into
with respect to such purchase money mortgage.
The Company shall also maintain on each REO Property fire and
hazard insurance with extended coverage in amount which is at least equal to the
maximum insurable value of the improvements which are a part of such property,
liability insurance and, to the extent required and available under the Flood
Disaster Protection Act of 1973, as amended, flood insurance in the amount
required above.
The disposition of REO Property shall be carried out by the
Company at such price, and upon such terms and conditions, as the Company deems
to be in the best interests of the Purchaser. The proceeds of sale of the REO
Property shall be promptly deposited in the Custodial Account. As soon as
practical thereafter the expenses of such sale shall be paid and the Company
shall reimburse itself for any related unreimbursed Servicing Advances, unpaid
Servicing Fees and unreimbursed advances made pursuant to Section 5.03, and on
the Remittance Date immediately following the Principal Prepayment Period in
which such sale proceeds are received the net cash proceeds of such sale
remaining in the Custodial Account shall be distributed to the Purchaser.
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The Company shall withdraw the Custodial Account funds necessary
for the proper operation, management and maintenance of the REO Property,
including the cost of maintaining any hazard insurance pursuant to Section 4.10
and the fees of any managing agent of the Company or the Company itself. The REO
management fee shall be an amount that is reasonable and customary in the area
where the Mortgaged Property is located. The Company shall make monthly
distributions on each Remittance Date to the Purchasers of the net cash flow
from the REO Property (which shall equal the revenues from such REO Property net
of the expenses described in the Section 4.16 and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
Notwithstanding the foregoing, at any time and from time to time,
the Purchaser may at its election terminate this Agreement with respect to one
or more REO Properties as provided by Section 11.02.
Section 4.17 Real Estate Owned Reports.
Together with the statement furnished pursuant to Section 5.02,
the Company shall furnish to the Purchaser on or before the Remittance Date each
month a statement with respect to any REO Property covering the operation of
such REO Property for the previous month and the Company's efforts in connection
with the sale of such REO Property and any rental of such REO Property
incidental to the sale thereof for the previous month. That statement shall be
accompanied by such other information as the Purchaser shall reasonably request.
Section 4.18 Liquidation Reports.
Upon the foreclosure sale of any Mortgaged Property or the
acquisition thereof by the Purchaser pursuant to a deed in lieu of foreclosure,
the Company shall submit to the Purchaser a liquidation report with respect to
such Mortgaged Property.
Section 4.19 Reports of Foreclosures and Abandonments of
Mortgaged Property.
Following the foreclosure sale or abandonment of any Mortgaged
Property, the Company shall report such foreclosure or abandonment as required
pursuant to Section 6050J of the Code.
Section 4.20 Notification of Adjustments.
With respect to each Mortgage Loan, the Company shall adjust the
Mortgage Interest Rate on the related Interest Rate Adjustment Date in
compliance with the requirements of applicable law and the related Mortgage and
Mortgage Note. The Company shall execute and deliver any and all necessary
notices required under applicable law and the terms of the related Mortgage Note
and Mortgage regarding the Mortgage Interest Rate adjustments. The Company shall
promptly, upon written request therefor, deliver to the Purchaser such
notifications and any additional applicable data regarding such adjustments and
the methods used to calculate and implement such adjustments. Upon the discovery
by the Company or the receipt of notice from the Purchaser that the Company has
failed to adjust a Mortgage Interest Rate in accordance with the terms of the
related Mortgage Note, the Company shall immediately deposit in the Custodial
Account from its own funds the amount of any interest loss or deferral caused
the Purchaser thereby.
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Section 4.21 Credit Reporting
For each Mortgage Loan, the Company shall accurately and fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information on its borrower credit files to
each of the following credit repositories: Equifax Credit Information Services,
Inc., TransUnion, LLC and Experian Information Solution, Inc. on a monthly
basis.
ARTICLE V
PAYMENTS TO PURCHASER
Section 5.01 Remittances.
On each Remittance Date the Company shall remit by wire transfer
of immediately available funds to the Purchaser (a) all amounts deposited in the
Custodial Account as of the close of business on the Determination Date (net of
charges against or withdrawals from the Custodial Account pursuant to Section
4.05), plus (b) all amounts, if any, which the Company is obligated to
distribute pursuant to Section 5.03, minus (c) any amounts attributable to
Principal Prepayments received after the applicable Principal Prepayment Period
which amounts shall be remitted on the following Remittance Date, together with
any additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii),
and minus (d) any amounts attributable to Monthly Payments collected but due on
a Due Date or Dates subsequent to the first day of the month of the Remittance
Date, which amounts shall be remitted on the Remittance Date next succeeding the
Due Period for such amounts.
With respect to any remittance received by the Purchaser after
the second Business Day following the Business Day on which such payment was
due, the Company shall pay to the Purchaser interest on any such late payment at
an annual rate equal to the Prime Rate, adjusted as of the date of each change,
plus three percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in the Custodial
Account by the Company on the date such late payment is made and shall cover the
period commencing with the day following such second Business Day and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Company of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event of
Default by the Company.
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Section 5.02 Statements to Purchaser.
Not later than the 10th calendar day of the month (or if such day
is not a Business Day, the Business Day immediately following such 10th day),
the Company shall furnish to the Purchaser a Monthly Remittance Advice, with a
trial balance report attached thereto, in the form of Exhibit F annexed hereto
in hard copy and electronic medium mutually acceptable to the parties as to the
preceding calendar month.
In addition, not more than 60 days after the end of each calendar
year, the Company shall furnish to each Person who was a Purchaser at any time
during such calendar year an annual statement in accordance with the
requirements of applicable federal income tax law as to the aggregate of
remittances for the applicable portion of such year.
Such obligation of the Company shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Company pursuant to any requirements of the Internal Revenue
Code as from time to time are in force.
At the Purchaser's expense, the Company shall provide any and all
information necessary for the preparation and filing of tax returns, information
statements or other filings required to be delivered to any governmental taxing
authority or to any Purchaser pursuant to any applicable law with respect to the
Mortgage Loans and the transactions contemplated hereby. In addition, the
Company shall provide each Purchaser with such information concerning the
Mortgage Loans as is necessary for such Purchaser to prepare its federal income
tax return as any Purchaser may reasonably request from time to time.
Company would prompt of any material development or change with
respect to any Mortgage Loan.
The Company shall promptly notify the Purchaser of (i) any
litigation or governmental proceedings pending against the Company of the type
described in Section 3.01(g) or (ii) any affiliations or relationships that may
develop following a Securitization Transfer between the Company and any of the
Persons identified in Item 1119 of Regulation AB.
Section 5.03 Monthly Advances by Company.
On the Business Day immediately preceding each Remittance Date,
the Company shall deposit in the Custodial Account from its own funds an amount
equal to all Monthly Payments (with interest adjusted to the Mortgage Loan
Remittance Rate) which were due on the Mortgage Loans during the applicable Due
Period and which were delinquent at the close of business on the immediately
preceding Determination Date or which were deferred pursuant to Section 4.01.
The Company's obligation to make such Monthly Advances as to any Mortgage Loan
will continue through the last Monthly Payment due prior to the payment in full
of the Mortgage Loan, or through the last Remittance Date prior to the
Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation Proceeds)
with respect to the Mortgage Loan; provided, that the Seller shall not be
required to make any Nonrecoverable Advance. In the event that the Seller
determines that any advance would be a Nonrecoverable Advance, the Seller shall
promptly deliver to the Purchaser notification of such determination,
accompanied by an officer's certificate of the Seller setting forth the reason
such advance is determined to be nonrecoverable.
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Section 5.04 Due Dates Other Than the First of the Month.
Mortgage Loans having Due Dates other than the first day of a
month, including Mortgage Loans permitting semi-annual amortization of
principal, shall be accounted for as described in this Section 5.04. Any payment
due on a day other than the first day of each month shall be considered due on
the first day of the month in which that payment is due as if such payment were
due on the first day of said month. For example, a payment due on August 15
shall be considered to be due on August 1 of said month. With respect to a
Mortgage Note permitting semi-annual amortization of principal, the Company
shall be required to remit monthly scheduled principal and interest based on a
monthly amortization schedule. Any payment collected on a Mortgage Loan after
the related Cut-off Date shall be deposited in the Custodial Account. For
Mortgage Loans with Due Dates on the first day of a month, deposits to the
Custodial Account begin with the payment due on the first of the month following
the related Cut-off Date.
ARTICLE VI
GENERAL SERVICING PROCEDURES
Section 6.01 Transfers of Mortgaged Property.
The Company shall use its best efforts to enforce any
"due-on-sale" provision contained in any Mortgage or Mortgage Note and to deny
assumption by the person to whom the Mortgaged Property has been or is about to
be sold whether by absolute conveyance or by contract of sale, and whether or
not the Mortgagor remains liable on the Mortgage and the Mortgage Note. When the
Mortgaged Property has been conveyed by the Mortgagor, the Company shall, to the
extent it has knowledge of such conveyance, exercise its rights to accelerate
the maturity of such Mortgage Loan under the "due-on-sale" clause applicable
thereto, provided, however, that the Company shall not exercise such rights if
prohibited by law from doing so or if the exercise of such rights would impair
or threaten to impair any recovery under the related PMI Policy.
If the Company reasonably believes it is unable under applicable
law to enforce such "due-on-sale" clause, the Company shall enter into (i) an
assumption and modification agreement with the person to whom such property has
been conveyed, pursuant to which such person becomes liable under the Mortgage
Note and the original Mortgagor remains liable thereon or (ii) in the event the
Company is unable under applicable law to require that the original Mortgagor
remain liable under the Mortgage Note and the Company has the prior consent of
the primary mortgage guaranty insurer, a substitution of liability agreement
with the purchaser of the Mortgaged Property pursuant to which the original
Mortgagor is released from liability and the purchaser of the Mortgaged Property
is substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement, such fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage Loan
nor the outstanding principal amount of the Mortgage Loan shall be changed.
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To the extent that any Mortgage Loan is assumable, the Company
shall inquire diligently into the creditworthiness of the proposed transferee,
and shall use the underwriting criteria for approving the credit of the proposed
transferee which are used by Xxxxxx Xxx with respect to underwriting mortgage
loans of the same type as the Mortgage Loans. If the credit of the proposed
transferee does not meet such underwriting criteria, the Company diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section 6.02 Satisfaction of Mortgages and Release of Mortgage
Files.
Upon the payment in full of any Mortgage Loan, or the receipt by
the Company of a notification that payment in full will be escrowed in a manner
customary for such purposes, the Company shall notify the Purchaser in the
Monthly Remittance Advice as provided in Section 5.02, and may request the
release of any Mortgage Loan Documents.
If the Company satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by the Mortgage or
should the Company otherwise prejudice any rights the Purchaser may have under
the mortgage instruments, upon written demand of the Purchaser, the Company
shall repurchase the related Mortgage Loan at the Repurchase Price by deposit
thereof in the Custodial Account within 2 Business Days of receipt of such
demand by the Purchaser. The Company shall maintain the Fidelity Bond and Errors
and Omissions Insurance Policy as provided for in Section 4.12 insuring the
Company against any loss it may sustain with respect to any Mortgage Loan not
satisfied in accordance with the procedures set forth herein.
Section 6.03 Servicing Compensation.
As compensation for its services hereunder, the Company shall be
entitled to withdraw from the Custodial Account or to retain from interest
payments on the Mortgage Loans the amount of its Servicing Fee. The Servicing
Fee shall be payable monthly and shall be computed on the basis of the same
unpaid principal balance and for the period respecting which any related
interest payment on a Mortgage Loan is computed. The Servicing Fee shall be
payable only at the time of and with respect to those Mortgage Loans for which
payment is in fact made of the entire amount of the Monthly Payment. The
obligation of the Purchaser to pay the Servicing Fee is limited to, and payable
solely from, the interest portion of such Monthly Payments collected by the
Company.
Additional servicing compensation in the form of assumption fees,
and late payment charges shall be retained by the Company to the extent not
required to be deposited in the Custodial Account. The Company shall be required
to pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement thereof except as
specifically provided for herein; provided , that the Seller shall not be
required to make any Nonrecoverable Advance. In the event that the Seller
determines that any advance would be a Nonrecoverable Advance, the Seller shall
promptly deliver to the Purchaser notification of such determination,
accompanied by an officer's certificate of the Seller setting forth the reason
such advance is determined to be nonrecoverable.
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Section 6.04 Annual Statement as to Compliance.
The Company shall deliver to the Purchaser, (a) on or before
March 1, 2006, an Officer's Certificate, stating that (i) a review of the
activities of the Company during the preceding calendar year and of performance
under this Agreement has been made under such officer's supervision, and (ii)
the Company has complied fully with the provisions of Article II and Article IV,
and (iii) to the best of such officer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Agreement throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof and the action being taken by the Company to cure such default and (b)
on or before March 1st of each year beginning March 1, 2007, the servicer
compliance statement required by Item 1123 of Regulation AB, which as of the
date hereof requires a statement to the effect that (i) an authorized officer of
the Company has reviewed (or a review has been made under its supervision) of
the Company's activities under this Agreement during the prior calendar year and
(ii) to the best of such officers' knowledge, based on such review, the Company
has fulfilled all of its obligations under this Agreement in all respects
throughout the period covered by the prior calendar year or, if there has been a
failure to fulfill any such obligation in any respect, a statement of such
failure known to such officer and the nature and the status thereof.
Section 6.05 Annual Independent Public Accountants' Servicing
Report.
On or before March 1, 2006, the Company, at its expense, shall
cause a firm of independent public accountants which is a member of the American
Institute of Certified Public Accountants to furnish a statement to each
Purchaser to the effect that such firm has examined certain documents and
records relating to the servicing of the Mortgage Loans and this Agreement and
that such firm is of the opinion that the provisions of Article II and Article
IV have been complied with, and that, on the basis of such examination conducted
substantially in compliance with the Single Attestation Program for Mortgage
Bankers, nothing has come to their attention which would indicate that such
servicing has not been conducted in compliance therewith, except for (i) such
exceptions as such firm shall believe to be immaterial, and (ii) such other
exceptions as shall be set forth in such statement and on or before March 1st of
each year beginning March 1, 2007, furnish to the Purchaser a report by a
registered public accounting firm that attests to, and reports on, the
assessment made by the Company pursuant to Subsection 6.08, as required by Rules
13a-18 and 15d-18 of the Securities Exchange Act and Item 1122(b) of Regulation
AB, which attestation shall be in accordance with Rule 1-02(a)(3) and Rule
2-02(g) of Regulation S-X under the Securities Act and the Securities Exchange
Act.
Section 6.06 Right to Examine Company Records.
The Purchaser shall have the right to examine and audit any and
all of the books, records, or other information of the Company, whether held by
the Company or by another on its behalf, with respect to or concerning this
Agreement or the Mortgage Loans, during business hours or at such other times as
may be reasonable under applicable circumstances, upon reasonable advance
notice.
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Section 6.07 Xxxxxxxx-Xxxxx.
With respect to any Mortgage Loans conveyed in a Securitization
Transfer, the Company agrees that on or before March 1st of each year beginning
March 1, 2006, the Company shall deliver to the depositor, the trustee and the
master servicer, and their officers, directors and affiliates, a certification
in the form attached as Exhibit J hereto, executed by the senior officer in
charge of servicing at the Company for use in connection with any Form 10-K to
be filed with the Securities and Exchange Commission with respect to the
securitization trust. The Company shall indemnify and hold harmless the Person
acting as depositor in the Securitization Transfer, the Person acting as trustee
in the Securitization transaction, the master servicer and their respective
officers, directors and Affiliates, from and against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments and other costs and expenses arising out of or based upon any
breach of the Company's obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the
Company in connection therewith. If the indemnification provided for in the
preceding sentence is unavailable or insufficient to hold harmless any
indemnified party, then the Company agrees that it shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities of such indemnified party in such proportion as
is appropriate to reflect the relative fault of such indemnified party, on the
one hand, and the Company, on the other, in connection with a breach of the
Company's obligations under this paragraph or any material misstatement or
omission, negligence, bad faith or willful misconduct of the Company in
connection therewith.
Section 6.08 Assessment of Servicing Compliance.
The Company shall deliver to the Purchaser or its designee on or
before March 1st of each year, beginning March 1, 2007, a report reasonably
satisfactory to the Purchaser regarding its assessment of compliance with
Servicing Criteria as required by Rules 13a-18 and 15d-18 of the Securities
Exchange Act and Item 1122 of Regulation AB, which as of the date hereof require
a report by an authorized officer of the Company that contains the following:
(a) A statement by such officer of its responsibility of
assessing the Servicing Criteria applicable to the Company;
(b) A statement by such officer that it used the Servicing
Criteria to assess compliance with the Servicing Criteria applicable to the
Company;
(c) A statement by such officer of the Company's compliance
with the applicable Servicing Criteria as of the immediately preceding December
31 and for the period covered by the preceding calendar year and disclosure of
any material instance of noncompliance with respect thereto;
(d) A statement that a registered public accounting firm has
issued an attestation report on the Company's compliance with the applicable
Servicing Criteria as of the immediately preceding December 31, and for the
period covered by the preceding calendar year; and
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(e) A statement as to which of the Servicing Criteria, if any,
are not applicable to the Company (which statement shall be based on the
activities it performs with respect to asset-backed securities transactions
taken as a whole involving the Company that are backed by the same asset type as
the Mortgage Loans).
Section 6.09 Subservicing.
The Company shall not hire or otherwise utilize a subservicer or
other subcontractor hereunder, or permit any subservicer or subcontractor to
itself utilize the services of any subservicer or subcontractor, without the
prior written consent of the Purchaser and its designee. Any such subservicer
must agree in writing to comply with the provisions of Sections 6.04, 6.05, 6.08
and the fifth paragraph of Section 7.01 to the same extent as if such
subservicer were the Company, and with this Section 6.09 and to provide such
information relating to such subservicer as the Purchaser or its designee may
request from time to time in order to permit the Purchaser or its designee to
comply with Regulation AB in connection with any Securitization Transfer. Any
subcontractor that performs any of the functions identified in Item 1122(d) of
Regulation AB must agree in writing that, if the Purchaser determines that such
subcontractor was "participating in the servicing function" within the meaning
of Item 1122, such subcontractor will comply with the provisions of Sections
6.05 and 6.08 to the same extent as if such subcontractor were the Company.
ARTICLE VII
PASS-THROUGH TRANSFER
Section 7.01 Removal of Mortgage Loans from Inclusion Under
this Agreement Upon a Pass-Through Transfer on One
or More Reconstitution Dates.
The Purchaser and the Company agree that with respect to some or
all of the Mortgage Loans, from time to time the Purchaser shall effect a Whole
Loan Transfer, a Pass-Through Transfer or an Agency Transfer, retaining the
Company as the servicer thereof, or as applicable the "seller/servicer". On the
related Reconstitution Date, the Mortgage Loans transferred shall cease to be
covered by this Agreement.
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The Company shall cooperate with the Purchaser in connection with
any Transfer contemplated by the Purchaser pursuant to this Section 7.01. In
that connection, the Company shall (a) execute any Reconstitution Agreement
within a reasonable period of time after receipt of any Reconstitution Agreement
which time shall be sufficient for the Company and Company's counsel to review
such Reconstitution Agreement, but such time shall not exceed ten (10) Business
Days after such receipt, and (b) provide to the trustee or a third party
purchaser, subject to any Reconstitution Agreement and/or the Purchaser: (i) any
and all information and appropriate verification of information which may be
reasonably available to the Company, whether through letters of its auditors
(the reasonable out-of-pocket cost of which shall be borne by the Purchaser) and
counsel or otherwise, as the Purchaser shall reasonably request; (ii) restate
each of the representations and warranties set forth in the Section 3.01 as of
the Closing Date, and (iii) such additional representations, warranties,
covenants, opinions of counsel, letters from auditors, and certificates of
public officials or officers of the Company as are reasonably believed necessary
by the trustee, such third party purchaser, any master servicer, any rating
agency or the Purchaser, as the case may be, in connection with such
transactions; provided, however, that these items shall not be more onerous than
such similar items set forth herein, and (c) to deliver to Purchaser and any
prospective purchaser within three (3) Business Days after request by Purchaser
or prospective purchaser, information, in form and substance satisfactory to
Purchaser and such prospective purchaser, with respect to each originator of the
Mortgage Loans (x) reasonably requested by the Purchaser or (y) required by Item
1110 of Regulation AB under the Securities Act and the Securities Exchange Act,
which as of the date hereof requires the following information: (i) the
originator's form of organization; and (ii) a description of the originator's
origination program and how long the originator has been engaged in originating
residential mortgage loans, which description must include a discussion of the
originator's experience in originating mortgage loans of the same type as the
Mortgage Loans and information regarding the size and composition of the
originator's origination portfolio as well as information that may be material,
in the good faith judgment of the Purchaser, to an analysis of the performance
of the Mortgage Loans, such as the originators' credit-granting or underwriting
criteria for mortgage loans of the same type as the Mortgage Loans; and (d) to
deliver to the Purchaser and any prospective purchaser within three (3) Business
Days after request by Purchaser, Static Pool Information with respect to those
mortgage loans that were originated by the originator of the Mortgage Loans and
which are of the same type as the Mortgage Loans, which as of the date hereof
require Static Pool Information regarding delinquencies, cumulative losses and
prepayments by vintage origination year or prior securitized pools, as
applicable. A vintage origination year represents mortgage loans originated
during the same year. Such Static Pool Information shall be for the prior five
years or for so long as the originator has been originating (in the case of data
by vintage origination year) or securitizing (in the case of data by prior
securitized pools) such mortgage loans, if originating for less than five years.
The Static Pool Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in monthly increments over
the life of the mortgage loans included in the vintage origination year or prior
securitized pool.
The Assignments of Mortgage are generally required to be recorded
by or on behalf of the Company in the appropriate offices for real property
records; provided however, the Company shall not cause to be recorded any
Assignment which relates to a Mortgage Loan in a jurisdiction where either the
Rating Agencies (in the case of Agency or Pass-Through Transfers) or purchasers
(in the case of Whole Loan Transfers) do not require recordation; provided
further, however, notwithstanding the foregoing, upon the occurrence of certain
events set forth in the pooling agreement (in the case of and Agency or
Pass-Through Transfer), each such assignment of Mortgage shall be recorded by
the master servicer or the trustee as set forth in the Reconstitution Agreement.
Any costs associated with the recording of such Assignments of Mortgage and
other relevant documents will be borne by the Company. In the event that
Purchaser sells any Mortgage Loans in a Whole Loan Transfer and the subsequent
purchaser requests recorded Assignments of Mortgage, the Company, shall at its
expense cause to be recorded any Assignments of Mortgage.
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All Mortgage Loans not sold or transferred pursuant to a
Pass-Through Transfer and any Mortgage Loans repurchased by the Purchaser
pursuant to Section 7.02 hereof, shall be subject to this Agreement and shall
continue to be serviced in accordance with the terms of this Agreement and with
respect thereto this Agreement shall remain in full force and effect.
The Purchaser shall pay the Seller's reasonable legal fees for
the review of any matters related to a Transfer or Reconstitution Agreement and
shall reimburse the Company for any out-of-pocket expenses incurred in
connection with entering into any Reconstitution Agreement.
In connection with any Securitization Transfer, the Servicer
shall, if requested by the Purchaser or its designee, deliver to the Purchaser
or its designee within three (3) Business Days after such request information,
in form and substance satisfactory to the Purchaser or such designee, with
respect to such Servicer information reasonably requested by the Purchaser or
its designee and the information set forth under Item 1108(b) and 1108(c) of
Regulation AB (collectively, the "Servicer Information"), which as of the date
hereof includes:
(1) a description of the Servicer's form of organization;
(2) a description of how long the Servicer has been servicing
residential mortgage loans; a general discussion of the Servicer's experience in
servicing assets of any type as well as a more detailed discussion of the
Servicer's experience in, and procedures for the servicing function it will
perform under this Agreement and any Reconstitution Agreements; information
regarding the size, composition and growth of the Servicer's portfolio of
mortgage loans of the type similar to the Mortgage Loans and information on
factors related to the Servicer that may be material, in the good faith judgment
of the Purchaser, to any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable (including, without limitation,
whether any prior securitizations of mortgage loans of the type similar to the
Mortgage Loans involving the Servicer have defaulted or experienced an early
amortization or other performance triggering event because of servicing; the
extent of outsourcing the Servicer utilizes; whether there has been previous
disclosure of noncompliance with Servicing Criteria with respect to other
securitizations involving the Servicer; whether there has been any termination
of the Company as servicer in a mortgage loan securitization; and whether in a
mortgage loan securitization a servicing performance test or trigger that could
have resulted in the termination of the Company as servicer was reached, whether
or not the Company was so terminated);
(3) a description of any material changes to the Servicer's
policies or procedures in the servicing function it will perform under this
Agreement and any Reconstitution Agreements for mortgage loans of the type
similar to the Mortgage Loans during the past three years;
(4) information regarding the Servicer's financial condition
to the extent that there is a risk that the effect on one or more aspects of
servicing resulting from such financial condition could have an impact on the
performance of the securities issued in the Securitization Transfer, or on
servicing of mortgage loans of the same asset type as the Mortgage Loans;
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(5) statistical information regarding advances made by the
Servicer on the Mortgage Loans and the Servicer's overall servicing portfolio
for the past three years;
(6) the Servicer's process for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of REO Properties, sale
of the Mortgage Loans or workouts; and
(7) the Servicer's processes and procedures designed to
address any special or unique factors involved in servicing loans of the same
type as the Mortgage Loans.
The Servicer shall indemnify the Purchaser, each affiliate of the
Purchaser and each underwriter as placement agent participating in the
Reconstitution and each Person who controls the Purchaser or such affiliate and
their respective present and former directors, officers, employees and agents,
and hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that each of them may sustain arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in the information provided by or on behalf of the Servicer
regarding the Servicer, the Servicer's servicing practices or the performance of
the Mortgage Loans set forth in any offering document prepared in connection
with any Reconstitution. For purposes of the previous sentence, "Purchaser"
shall mean the Person then acting as the Purchaser under this Agreement and any
and all Persons who previously were "Purchasers" under this Agreement.
Section 7.02 Purchaser's Repurchase and Indemnification
Obligations.
Upon receipt by the Company of notice from Xxxxxx Xxx, Xxxxxxx
Mac or the trustee of a breach of any Purchaser representation or warranty
contained in any Reconstitution Agreement or a request by Xxxxxx Mae, Xxxxxxx
Mac or the trustee, as the case may be, for the repurchase of any Mortgage Loan
transferred to Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a
trustee pursuant to a Pass-Through Transfer, the Company shall promptly notify
the Purchaser of same and shall, at the direction of the Purchaser, use its best
efforts to cure and correct any such breach and to satisfy the requests or
concerns of Xxxxxx Mae, Xxxxxxx Mac, or the trustee related to such deficiencies
of the related Mortgage Loans transferred to Xxxxxx Mae, Xxxxxxx Mac, or the
trustee.
The Purchaser shall repurchase from the Company any Mortgage Loan
transferred to Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a
trustee pursuant to a Pass-Through Transfer with respect to which the Company
has been required by Xxxxxx Mae, Xxxxxxx Mac, or the trustee to repurchase due
to a breach of a representation or warranty made by the Purchaser with respect
to the Mortgage Loans, or the servicing thereof prior to the transfer date to
Xxxxxx Mae, Xxxxxxx Mac, or the trustee in any Reconstitution Agreement and not
due to a breach of the Company's representations or obligations thereunder or
pursuant to this Agreement. The repurchase price to be paid by the Purchaser to
the Company shall equal that repurchase price paid by the Company to Xxxxxx Mae,
Xxxxxxx Mac, or the third party purchaser plus all reasonable costs and expenses
borne by the Company in connection with the cure of said breach of a
representation or warranty made by the Purchaser and in connection with the
repurchase of such Mortgage Loan from Xxxxxx Mae, Xxxxxxx Mac, or the trustee,
including, but not limited to, reasonable and necessary attorneys' fees.
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At the time of repurchase, the Custodian and the Company shall
arrange for the reassignment of the repurchased Mortgage Loan to the Purchaser
according to the Purchaser's instructions and the delivery to the Custodian of
any documents held by Xxxxxx Mae, Xxxxxxx Mac, or the trustee with respect to
the repurchased Mortgage Loan pursuant to the related Reconstitution Agreement.
In the event of a repurchase, the Company shall, simultaneously with such
reassignment, give written notice to the Purchaser that such repurchase has
taken place, and amend the Mortgage Loan Schedule to reflect the addition of the
repurchased Mortgage Loan to this Agreement. In connection with any such
addition, the Company and the Purchaser shall be deemed to have made as to such
repurchased Mortgage Loan the representations and warranties set forth in this
Agreement except that all such representations and warranties set forth in this
Agreement shall be deemed made as of the Closing Date.
ARTICLE VIII
COMPANY TO COOPERATE
Section 8.01 Provision of Information.
During the term of this Agreement, the Company shall furnish to
the Purchaser such periodic, special, or other reports or information and copies
or originals of any documents contained in the Servicing File for each Mortgage
Loan, whether or not provided for herein, as shall be necessary, reasonable, or
appropriate with respect to the Purchaser, any regulatory requirement pertaining
to the Purchaser or the purposes of this Agreement. All such reports, documents
or information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give.
The Company shall execute and deliver all such instruments and
take all such action as the Purchaser may reasonably request from time to time,
in order to effectuate the purposes and to carry out the terms of this
Agreement.
Section 8.02 Financial Statements; Servicing Facility.
In connection with marketing the Mortgage Loans, the Purchaser
may make available to a prospective Purchaser a Consolidated Statement of
Operations of the Company for the most recently completed five fiscal years for
which such a statement is available, as well as a Consolidated Statement of
Condition at the end of the last two fiscal years covered by such Consolidated
Statement of Operations. The Company also shall make available any comparable
interim statements to the extent any such statements have been prepared by or on
behalf of the Company (and are available upon request to members or stockholders
of the Company or to the public at large). If it has not already done so, the
Company shall furnish promptly to the Purchaser copies of the statement
specified above.
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The Company also shall make available to Purchaser or prospective
Purchaser a knowledgeable financial or accounting officer for the purpose of
answering questions respecting recent developments affecting the Company or the
financial statements of the Company, and to permit any prospective Purchaser to
inspect the Company's servicing facilities for the purpose of satisfying such
prospective Purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE IX
THE COMPANY
Section 9.01 Indemnification; Third Party Claims.
The Company shall indemnify the Purchaser and hold it harmless
against any and all claims, losses, damages, penalties, fines, and forfeitures,
including but not limited to, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Purchaser may
sustain in any way related to the failure of the Company to perform its duties
and service the Mortgage Loans in strict compliance with the terms of this
Agreement or any Reconstitution Agreement entered into pursuant to Section 7.01.
The Company immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement or any Reconstitution Agreement or the
Mortgage Loans, shall promptly notify Xxxxxx Xxx, Xxxxxxx Mac, or the trustee
with respect to any claim made by a third party with respect to any
Reconstitution Agreement, assume (with the prior written consent of the
Purchaser) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or the Purchaser in respect
of such claim. The Company shall follow any written instructions received from
the Purchaser in connection with such claim. The Purchaser promptly shall
reimburse the Company for all amounts advanced by it pursuant to the preceding
sentence except when the claim is in any way related to the Company's
indemnification pursuant to Section 3.03, or the failure of the Company to
service and administer the Mortgage Loans in strict compliance with the terms of
this Agreement or any Reconstitution Agreement.
(b) The Purchaser shall indemnify the Company and hold it
harmless against any actual out of pocket losses, costs and expenses that the
Company may sustain arising as a direct result of the failure of the Purchaser
to perform any of its obligations under this Agreement.
Section 9.02 Merger or Consolidation of the Company.
The Company shall keep in full effect its existence, rights and
franchises as a corporation and shall obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement or any of the Mortgage Loans and to perform its
duties under this Agreement.
Any person into which the Company may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Company shall be a party, or any Person succeeding to the business of
the Company, shall be the successor of the Company hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding, provided,
however, that the successor or surviving Person shall be an institution (i)
having a net worth of not less than $25,000,000, (ii) whose deposits are insured
by the FDIC through the BIF or the SAIF, and (iii) which is a Xxxxxxx Mac or
Xxxxxx Xxx-approved company in good standing.
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Section 9.03 Limitation on Liability of Company and Others.
Neither the Company nor any of the directors, officers, employees
or agents of the Company shall be under any liability to the Purchaser for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment, provided, however, that
this provision shall not protect the Company or any such person against any
Breach of warranties or representations made herein, or failure to perform its
obligations in strict compliance with any standard of care set forth in this
Agreement, or any liability which would otherwise be imposed by reason of any
breach of the terms and conditions of this Agreement. The Company and any
director, officer, employee or agent of the Company may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Company shall not be under
any obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement and which in its opinion may involve it in any expense or liability,
provided, however, that the Company may, with the consent of the Purchaser,
undertake any such action which it may deem necessary or desirable in respect to
this Agreement and the rights and duties of the parties hereto. In such event,
the Company shall be entitled to reimbursement from the Purchaser of the
reasonable legal expenses and costs of such action.
Section 9.04 Limitation on Resignation and Assignment by Company.
The Purchaser has entered into this Agreement with the Company
and subsequent Purchasers will purchase the Mortgage Loans in reliance upon the
independent status of the Company, and the representations as to the adequacy of
its servicing facilities, plant, personnel, records and procedures, its
integrity, reputation and financial standing, and the continuance thereof.
Therefore, the Company shall neither assign this Agreement or the servicing
hereunder or delegate its rights or duties hereunder or any portion hereof or
sell or otherwise dispose of all or substantially all of its property or assets
without the prior written consent of the Purchaser, which consent shall be
granted or withheld in the sole discretion of the Purchaser.
The Company shall not resign from the obligations and duties
hereby imposed on it except by mutual consent of the Company and the Purchaser
or upon the determination that its duties hereunder are no longer permissible
under applicable law and such incapacity cannot be cured by the Company. Any
such determination permitting the resignation of the Company shall be evidenced
by an Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company's responsibilities and obligations hereunder in the manner provided in
Section 13.01.
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Without in any way limiting the generality of this Section 9.04,
in the event that the Company either shall assign this Agreement or the
servicing responsibilities hereunder or delegate its duties hereunder or any
portion thereof or sell or otherwise dispose of all or substantially all of its
property or assets, without the prior written consent of the Purchaser, then the
Purchaser shall have the right to terminate this Agreement upon notice given as
set forth in Section 10.01, without any payment of any penalty or damages and
without any liability whatsoever to the Company or any third party.
ARTICLE X
DEFAULT
Section 10.01 Events of Default.
Each of the following shall constitute an Event of Default on the
part of the Company:
(i) any failure by the Company to remit to the Purchaser any
payment required to be made under the terms of this Agreement which
continues unremedied for a period of five days after the date upon which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Company by the Purchaser; or
(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of
the Company set forth in this Agreement which continues unremedied for a
period of 30 days (or, in the case of (i) the annual statement of
compliance required under Section 6.04, (ii) the annual independent
public accountants' servicing report or attestation required under
Section 6.05, (iii) the annual assessment of servicing compliance
required under Section 6.08, or (iv) the certification required under
Exhibit J, five (5) days) after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser; after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given
to the Company by the Purchaser; or
(iii) failure by the Company to maintain a license to do
business in any jurisdiction where a Mortgage Property is located and
such license is legally required; or
(iv) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
including bankruptcy, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Company and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(v) the Company shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to the Company or of or relating to all or substantially all of
its property; or
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(vi) the Company shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency, bankruptcy or reorganization
statute, make an assignment for the benefit of its creditors,
voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(vii) the Company ceases to meet the qualifications of a
Xxxxxxx Mac or Xxxxxx Mae lender; or
(viii) the Company fails to maintain a minimum net worth of
$25,000,000; or
(ix) the Company attempts to assign its right to servicing
compensation hereunder or the Company attempts, without the consent of
the Purchaser, to sell or otherwise dispose of all or substantially all
of its property or assets or to assign this Agreement or the servicing
responsibilities hereunder or to delegate its duties hereunder or any
portion thereof in violation of Section 9.04.
In each and every such case, so long as an Event of Default shall
not have been remedied, in addition to whatsoever rights the Purchaser may have
at law or equity to damages, including injunctive relief and specific
performance, the Purchaser, by notice in writing to the Company, and subject to
the succeeding sentence, may terminate all the rights and obligations of the
Company under this Agreement and in and to the Mortgage Loans and the proceeds
thereof; provided that, the Company, within 60 days following receipt of such
notice from the Purchaser, shall have the right to deliver to the Purchaser, a
firm written commitment by a third party servicer (an "Acceptable Commitment"),
which commitment is in form and substance acceptable to the Purchaser in its
sole discretion, to purchase the servicing rights and assume the servicing
obligations hereunder and under any Reconstitution Agreement related to any of
the Mortgage Loans; provided further that such third party servicer (i) is
acceptable to the Purchaser in its sole discretion, and (ii) by replacing the
Company as servicer, will not cause a downgrade by any Rating Agency rating the
bonds related to any of the Mortgage Loans issued under any Reconstitution
Agreement. In the event that the Company fails to deliver an Acceptable
Commitment to the Purchaser within 60 days, all rights and obligations of the
Company to service the Mortgage Loans shall automatically terminate and become
the Purchaser's.
Upon receipt by the Company of such written notice, all authority
and power of the Company under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the successor
appointed pursuant to Section 13.01. Upon written request from any Purchaser,
the Company shall prepare, execute and deliver to the successor entity
designated by the Purchaser any and all documents and other instruments, place
in such successor's possession all Mortgage Files, and do or cause to be done
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, including but not limited to the transfer and endorsement
or assignment of the Mortgage Loans and related documents, at the Company's sole
expense. The Company shall cooperate with the Purchaser and such successor in
effecting the termination of the Company's responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
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Section 10.02 Waiver of Defaults.
By a written notice, the Purchaser may waive any default by the
Company in the performance of its obligations hereunder and its consequences.
Upon any waiver of a past default, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE XI
TERMINATION
Section 11.01 Termination.
This Agreement shall terminate upon either: (i) the later of the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or the disposition of any REO Property with respect to the
last Mortgage Loan and the remittance of all funds due hereunder; (ii) mutual
consent of the Company and the Purchaser in writing; or (iii) if any Event of
Default is not cured within the applicable cure period, subject to the
provisions of Section 10.01 hereof.
Section 11.02 Termination Without Cause.
The Purchaser may terminate, at its sole option, any rights the
Company may have hereunder, without cause, as provided in this Section 11.02.
Any such notice of termination shall be in writing and delivered to the Company
by registered mail as provided in Section 13.05.
In the event the Purchaser terminates the Company without cause
with respect to some or all of the Mortgage Loans, the Purchaser shall be
required to pay to the Company a Termination Fee in an amount equal to 1.50% of
the Stated Principal Balance of the terminated Mortgage Loans as of the date of
such termination. Purchaser shall also reimburse the Company for all outstanding
servicing advances.
Notwithstanding and in addition to the foregoing, in the event
that (i) a Mortgage Loan becomes delinquent for a period of 120 days or more (a
"Delinquent Mortgage Loan") or (ii) a Mortgage Loan becomes an REO Property, the
Purchaser may at its election terminate this Agreement with respect to such
Delinquent Mortgage Loan or REO Property without payment of a termination fee
therefor, upon 15 days' written notice to the Company, reimbursement of all
outstanding advances, and payment of any unpaid Servicing Fees.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Successor to Company.
Prior to termination of the Company's responsibilities and duties
under this Agreement pursuant to Sections 9.04, 10.01, 11.01 (ii) or 11.02, the
Purchaser shall, (i) succeed to and assume all of the Company's
responsibilities, rights, duties and obligations under this Agreement, or (ii)
appoint a successor having the characteristics set forth in clauses (i) through
(iii) of Section 9.02 and which shall succeed to all rights and assume all of
the responsibilities, duties and liabilities of the Company under this Agreement
prior to the termination of Company's responsibilities, duties and liabilities
under this Agreement. In connection with such appointment and assumption, the
Purchaser may make such arrangements for the compensation of such successor out
of payments on Mortgage Loans as it and such successor shall agree. In the event
that the Company's duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, the Company shall
discharge such duties and responsibilities during the period from the date it
acquires knowledge of such termination until the effective date thereof with the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation or
removal of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.01
and the Company is reimbursed for all outstanding advances and all outstanding
servicing fees are paid and shall in no event relieve the Company of the
representations and warranties made pursuant to Sections 3.01 and 3.02 and the
remedies available to the Purchaser under Sections 3.03 , 3.05 and 3.06, it
being understood and agreed that the provisions of such Sections 3.01, 3.02,
3.03, 3.05 and 3.06 shall be applicable to the Company notwithstanding any such
sale, assignment, resignation or termination of the Company, or the termination
of this Agreement.
Any successor appointed as provided herein shall execute,
acknowledge and deliver to the Company and to the Purchaser an instrument
accepting such appointment, wherein the successor shall make the representations
and warranties set forth in Section 3.01, except for subsections (f), (h), (i)
and (k) thereof, whereupon such successor shall become fully vested with all the
rights, powers, duties, responsibilities, obligations and liabilities of the
Company, with like effect as if originally named as a party to this Agreement.
Any termination or resignation of the Company or termination of this Agreement
pursuant to Section 9.04, 10.01, 11.01 or 11.02 shall not affect any claims that
either party may have has against the other arising out of the Company's actions
or failure to act prior to any such termination or resignation.
The Company shall deliver promptly to the successor servicer the
Funds in the Custodial Account and Escrow Account and all Mortgage Files and
related documents and statements held by it hereunder and the Company shall
account for all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and definitively vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Company.
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Upon a successor's acceptance of appointment as such, the Company
shall notify by mail the Purchaser of such appointment in accordance with the
procedures set forth in Section 12.05.
Section 12.02 Amendment.
This Agreement may be amended from time to time by the Company
and the Purchaser by written agreement signed by the Company and the Purchaser.
Section 12.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 12.04 Duration of Agreement.
This Agreement shall continue in existence and effect until
terminated as herein provided. This Agreement shall continue notwithstanding
transfers of the Mortgage Loans by the Purchaser.
Section 12.05 Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered at
or mailed by registered mail, postage prepaid, addressed as follows:
(i) if to the Company:
IndyMac Bank, F.S.B.
0000 Xxxx Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Secondary Marketing
or such other address as may hereafter be furnished to the Purchaser
in writing by the Company;
(ii) if to Purchaser:
Lehman Capital, A Division of Xxxxxx Brothers Holdings Inc.,
3 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Contract Finance
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Section 12.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement.
Section 12.07 Relationship of Parties.
Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto and the services of the
Company shall be rendered as an independent contractor and not as agent for the
Purchaser.
Section 12.08 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. Subject to Section 8.04, this Agreement
shall inure to the benefit of and be binding upon the Company and the Purchaser
and their respective successors and assigns.
Section 12.09 Recordation of Assignments of Mortgage.
To the extent permitted by applicable law, each of the
Assignments of Mortgage is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the Mortgaged Properties are situated, and
in any other appropriate public recording office or elsewhere, such recordation
to be effected at the Purchaser's expense in the event recordation is either
necessary under applicable law or requested by the Purchaser at its sole option.
Section 12.10 Assignment by Purchaser.
The Purchaser shall have the right, without the consent of the
Company but subject to the limit set forth in Section 2.02 hereof, to assign, in
whole or in part, its interest under this Agreement with respect to some or all
of the Mortgage Loans, and designate any person to exercise any rights of the
Purchaser hereunder, by executing an Assignment and Assumption Agreement
substantially in the form of Exhibit G hereto. Upon such assignment of rights
and assumption of obligations, the assignee or designee shall accede to the
rights and obligations hereunder of the Purchaser with respect to such Mortgage
Loans and the Purchaser as assignor shall be released from all obligations
hereunder with respect to such Mortgage Loans from and after the date of such
assignment and assumption. All references to the Purchaser in this Agreement
shall be deemed to include its assignee or designee.
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Section 12.11 No Personal Solicitation.
From and after the related Closing Date, the Company hereby
agrees that it will not take any action or permit or cause any action to be
taken by any of its agents or affiliates, or by any independent contractors on
the Company's behalf or provide information to any other entity, to personally,
by telephone or mail, solicit the borrower or obligor under any Mortgage Loan
for any purpose whatsoever following the date hereof, including to refinance a
Mortgage Loan, in whole or in part, without the prior written consent of the
Purchaser.. Notwithstanding the foregoing, it is understood and agreed that (a)
engaging in general solicitations to its customer base, including by mass
mailing or as part of monthly or periodic statements mailed to its borrowers or
to holders of deposit or other accounts, (b) engaging in solicitations to the
general public, including without limitation by mass mailing, newspaper, radio,
television or other media which are not specifically directed toward the
Mortgagors or (c) refinancing the Mortgage Loan of any Mortgagor who, without
solicitation, contacts the Company to request the refinancing of the related
Mortgage Loan, shall not constitute solicitation under this Section 12.11.
Section 12.12 Appointment and Designation of Master Servicer.
The Purchaser hereby appoints and designates Aurora Loan
Services, Inc. as its master servicer (the "Master Servicer") for the Mortgage
Loans subject to this Agreement. The Company is hereby authorized and instructed
to take any and all instructions with respect to servicing the Mortgage Loans
hereunder as if the Master Servicer were the Purchaser hereunder. The
authorization and instruction set forth herein shall remain in effect until such
time as the Company shall receive written instruction from the Purchaser that
such authorization and instruction is terminated.
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IN WITNESS WHEREOF, the Company and the Purchaser have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
LEHMAN CAPITAL, A DIVISION OF
XXXXXX BROTHERS HOLDINGS INC.,
By: _____________________________
Name: ___________________________
Title: __________________________
INDYMAC BANK, F.S.B.
By: _____________________________
Name: ___________________________
Title: __________________________
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the __ day of ________, 200__ before me, a Notary Public in
and for said State, personally appeared ________, known to me to be Vice
President of Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc., the
corporation that executed the within instrument and also known to me to be the
person who executed it on behalf of said corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
---------------------------------
Notary Public
My Commission expires ___________
STATE OF )
) ss.:
COUNTY OF )
On the __ day of _______, 200__ before me, a Notary Public in and
for said State, personally appeared __________, known to me to be ______________
of IndyMac Bank, F.S.B. ,the entity that executed the within instrument and also
known to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand affixed my office
seal the day and year in this certificate first above written.
---------------------------------
Notary Public
My Commission expires ___________
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[INTENTIONALLY OMITTED]
A-1
EXHIBIT B
CONTENTS OF EACH MORTGAGE FILE
With respect to each Mortgage Loan, the Mortgage File shall
include each of the following items, which shall be available for inspection by
the Purchaser and any prospective Purchaser, and which shall be retained by the
Company in the Servicing File or delivered to the Custodian pursuant to Section
2.01 and 2.03 of the Seller's Warranties and Servicing Agreement to which this
Exhibit is attached (the "Agreement"):
1. The original Mortgage Note bearing all intervening
endorsements, endorsed, "Pay to the order of ________________, without recourse"
and signed in the name of the Company or the originator by an authorized
officer. In the event that the Mortgage Loan was acquired by the Company in a
merger, the endorsement must be by "IndyMac Bank, F.S.B., successor by merger to
[name of predecessor]"; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name, the
endorsement must be by "IndyMac Bank, F.S.B., formerly known as [previous
name]".
2. The original of any guarantee executed in connection with the
Mortgage Note.
3. The original Mortgage, with evidence of recording thereon or,
with respect to each Cooperative Loan, the original Pledge Agreement. If in
connection with any Mortgage Loan, the Company cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon on or prior
to the related Closing Date because of a delay caused by the public recording
office where such Mortgage has been delivered for recordation or because such
Mortgage has been lost or because such public recording office retains the
original recorded Mortgage, the Company shall deliver or cause to be delivered
to the Purchaser, a photocopy of such Mortgage, together with (i) in the case of
a delay caused by the public recording office, an Officer's Certificate of the
Company stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true and
complete copy of the original recorded Mortgage will be promptly delivered to
the Purchaser upon receipt thereof by the Company; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded Mortgage
or in the case where a Mortgage is lost after recordation in a public recording
office, a copy of such Mortgage certified by such public recording office to be
a true and complete copy of the original recorded Mortgage.
4. The originals of all assumption, modification, consolidation
or extension agreements, with evidence of recording thereon, or a copy of such
Mortgage certified by the related public recording office to be a true and
complete copy of the original document, or .
5. The original Assignment of Mortgage, signed by the Company or
originator in blank, which assignment shall be in form and substance acceptable
for recording but not recorded or with respect to each Cooperative Loan,
Assignment of Pledge Agreement. In the event that the Mortgage Loan was acquired
by the Company in a merger, the assignment must be by "IndyMac Bank, F.S.B.,
successor by merger to [name of predecessor]"; and in the event that the
Mortgage Loan was acquired or originated by the Company while doing business
under another name, the assignment must be by "IndyMac Bank, F.S.B., formerly
known as [previous name]"
B-1
6. Originals of all intervening assignments of the Mortgage with
evidence of recording thereon or with respect to each Cooperative Loan,
intervening assignments of the Pledge Agreement, or if any such intervening
assignment has not been returned from the applicable recording office or has
been lost or if such public recording office retains the original recorded
assignments of mortgage, the Company shall deliver or cause to be delivered to
the Purchaser, a photocopy of such intervening assignment, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Company stating that such intervening assignment of mortgage
has been dispatched to the appropriate public recording office for recordation
and that such original recorded intervening assignment of mortgage or a copy of
such intervening assignment of mortgage certified by the appropriate public
recording office to be a true and complete copy of the original recorded
intervening assignment of mortgage will be promptly delivered to the Purchaser
upon receipt thereof by the Company; or (ii) in the case of an intervening
assignment where a public recording office retains the original recorded
intervening assignment or in the case where an intervening assignment is lost
after recordation in a public recording office, a copy of such intervening
assignment certified by such public recording office to be a true and complete
copy of the original recorded intervening assignment.
7. If required, the original policy of primary mortgage guaranty
insurance, or where such insurance is provided by a master policy, a certified
true copy of the master policy and the original certificate of insurance; and
8. With respect to each Mortgage Loan other than a Cooperative
Loan, the original or electronic copy (in a form generally acceptable on the
secondary market) mortgagee policy of title insurance, except for those Mortgage
Loans originated within 60 days before the related Closing Date, for which
Mortgage Loans the Company shall have delivered and released to the Purchaser
the related binders. In addition, the Company shall deliver to the Purchaser the
original policy of title insurance within 90 days after the related Closing
Date. The policy must be properly endorsed, any necessary notices of transfer
must be forwarded and any other action required to be taken must be taken in
order to fully protect, under the terms of the policy and applicable law,
Purchaser's interest as first mortgagee;
9. Any security agreement, chattel mortgage or equivalent
executed in connection with the Mortgage.
10. The original hazard insurance policy and, if required by
law, flood insurance policy, in accordance with Section 7(f) of the Agreement.
11. With respect to each Cooperative Loan:
B-2
(a) the Cooperative Shares, (b) a stock power executed in blank
by the Person in whose name the Cooperative Shares are issued, (c) the
proprietary lease or occupancy agreement, accompanied by an assignment in blank
of such proprietary lease, (d) a recognition agreement executed by the
Cooperative Corporation, which requires the Cooperative Corporation to recognize
the rights of the lender and its successors in interest and assigns, under the
Cooperative Loan, accompanied by an assignment of such recognition agreement in
blank, (e) UCC-1 financing statements with recording information thereon from
the appropriate state and county recording offices if necessary to perfect the
security interest of the Cooperative Loan under the Uniform Commercial Code in
the state in which the Cooperative Project is located, accompanied by UCC-3
financing statements executed in blank for recordation of the change in the
secured party thereunder and (f) any guarantees, if applicable.
12. Residential loan application.
13. Mortgage Loan closing statement.
14. Verification of employment and income except for Mortgage
Loans originated under a Limited Documentation Program.
15. Verification of acceptable evidence of source and amount of
down payment.
16. Credit report on the Mortgagor.
17. Residential appraisal report.
18. Photograph of the Mortgaged Property.
19. Survey of the Mortgaged Property, if any.
20. Copy of each instrument necessary to complete identification
of any exception set forth in the exception schedule in the title policy, i.e.,
map or plat, restrictions, easements, sewer agreements, home association
declarations, etc.
21. All required disclosure statements.
22. If available, termite report, structural engineer's report,
water potability and septic certification.
23. Sales contract.
24. Tax receipts, insurance premium receipts, ledger sheets,
payment history from date of origination, insurance claim files, correspondence,
current and historical computerized data files, and all other processing,
underwriting and closing papers and records which are customarily contained in a
mortgage loan file and which are required to document the Mortgage Loan or to
service the Mortgage Loan.
B-3
25. Amortization schedule.
In the event an Officer's Certificate of the Company is delivered
to the Custodian because of a delay caused by the public recording office in
returning any recorded document, the Company shall deliver to the Custodian,
within 90 days of the related Closing Date, an Officer's Certificate which shall
(i) identify the recorded document, (ii) state that the recorded document has
not been delivered to the Custodian due solely to a delay caused by the public
recording office, (iii) state the amount of time generally required by the
applicable recording office to record and return a document submitted for
recordation, and (iv) specify the date the applicable recorded document will be
delivered to the Custodian. The Company shall be required to deliver to the
Custodian the applicable recorded document by the date specified in (iv) above.
An extension of the date specified in (iv) above may be requested from the
Purchaser, which consent shall not be unreasonably withheld.
B-4
EXHIBIT C
MORTGAGE LOAN DOCUMENTS
The Mortgage Loan Documents for each Mortgage Loan shall include
each of the following items, which shall be delivered to the Custodian pursuant
to Section 2.01 of the Seller's Warranties and Servicing Agreement to which this
Exhibit is annexed (the "Agreement"):
(A) The original Mortgage Note bearing all intervening
endorsements, endorsed, "Pay to the order of
________________, without recourse" and signed in the
name of the Company or the originator by an authorized
officer. In the event that the Mortgage Loan was
acquired by the Company in a merger, the endorsement
must be by "IndyMac Bank, F.S.B., successor by merger
to [name of predecessor]"; and in the event that the
Mortgage Loan was acquired or originated by the Company
while doing business under another name, the
endorsement must be by "IndyMac Bank, F.S.B., formerly
known as [previous name]".
(B) The original Mortgage, with evidence of recording
thereon or, with respect to each Cooperative Loan, the
original Pledge Agreement. If in connection with any
Mortgage Loan, the Company cannot deliver or cause to
be delivered the original Mortgage with evidence of
recording thereon on or prior to the related Closing
Date because of a delay caused by the public recording
office where such Mortgage has been delivered for
recordation or because such Mortgage has been lost or
because such public recording office retains the
original recorded Mortgage, the Company shall deliver
or cause to be delivered to the Purchaser, a photocopy
of such Mortgage. In addition, the Company shall
deliver and release to the Purchaser the original
recorded Mortgage within 90 days after the related
Closing Date. If the Company fails to deliver the
original Mortgage within 90 days after the related
Closing Date, the Company shall deliver (i) in the case
of a delay caused by the public recording office, an
Officer's Certificate of the Company stating that such
Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original
recorded Mortgage or a copy of such Mortgage certified
by such public recording office to be a true and
complete copy of the original recorded Mortgage will be
promptly delivered to the Purchaser upon receipt
thereof by the Company; or (ii) in the case of a
Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a
Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by
such public recording office to be a true and complete
copy of the original recorded Mortgage. In addition,
the Company shall deliver and release to the Purchaser
the original recorded Mortgage within 90 days after the
related Closing Date .
C-4-1
(C) The originals of all assumption, modification,
consolidation or extension agreements, with evidence of
recording thereon, or a copy of such Mortgage certified
by the related public recording office to be a true and
complete copy of the original document.
(D) The original Assignment of Mortgage, signed in the name
of the Company or originator, in blank, which
assignment shall be in form and substance acceptable
for recording but not recorded or with respect to each
Cooperative Loan, Assignment of Pledge Agreement. In
the event that the Mortgage Loan was acquired by the
Company in a merger, the assignment must be by "IndyMac
Bank, F.S.B., successor by merger to [name of
predecessor]"; and in the event that the Mortgage Loan
was acquired or originated by the Company while doing
business under another name, the assignment must be by
"IndyMac Bank, F.S.B., formerly known as [previous
name]"
(E) Originals of all intervening assignments of the
Mortgage with evidence of recording thereon or with
respect to each Cooperative Loan, intervening
assignments of the Pledge Agreement, or if any such
intervening assignment has not been returned from the
applicable recording office or has been lost or if such
public recording office retains the original recorded
assignments of mortgage, the Company shall deliver or
cause to be delivered to the Purchaser, a photocopy of
such intervening assignment, together with (i) in the
case of a delay caused by the public recording office,
an Officer's Certificate of the Company stating that
such intervening assignment of mortgage has been
dispatched to the appropriate public recording office
for recordation and that such original recorded
intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the
appropriate public recording office to be a true and
complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to
the Purchaser upon receipt thereof by the Company; or
(ii) in the case of an intervening assignment where a
public recording office retains the original recorded
intervening assignment or in the case where an
intervening assignment is lost after recordation in a
public recording office, a copy of such intervening
assignment certified by such public recording office to
be a true and complete copy of the original recorded
intervening assignment.
C-4-2
(F) With respect to each Mortgage Loan other than a
Cooperative Loan, the original or electronic copy (in
form generally acceptable on the secondary market) of
the mortgagee policy of title insurance, except for
those Mortgage Loans originated within 60 days before
the related Closing Date, for which Mortgage Loans the
Company shall have delivered and released to the
Purchaser the related binders. In addition, the Company
shall deliver to the Purchaser the original policy of
title insurance within 90 days after the related
Closing Date. The policy must be properly endorsed, any
necessary notices of transfer must be forwarded and any
other action required to be taken must be taken in
order to fully protect, under the terms of the policy
and applicable law, Purchaser's interest as first
mortgagee.
(G) With respect to each Cooperative Loan: (a) the
Cooperative Shares, (b) a stock power executed in blank
by the Person in whose name the Cooperative Shares are
issued, (c) the proprietary lease or occupancy
agreement, accompanied by an assignment in blank of
such proprietary lease, (d) a recognition agreement
executed by the Cooperative Corporation, which requires
the Cooperative Corporation to recognize the rights of
the lender and its successors in interest and assigns,
under the Cooperative Loan, accompanied by an
assignment of such recognition agreement in blank, (e)
UCC-1 financing statements with recording information
thereon from the appropriate state and county recording
offices if necessary to perfect the security interest
of the Cooperative Loan under the Uniform Commercial
Code in the state in which the Cooperative Project is
located, accompanied by UCC-3 financing statements
executed in blank for recordation of the change in the
secured party thereunder and (f) any guarantees, if
applicable.
(a)such other documents as the Purchaser may require.
X-0-0
XXXXXXX X-0
CUSTODIAL ACCOUNT CERTIFICATION
_____________________, 200_
IndyMac Bank, F.S.B. hereby certifies that it has established the
account described below as a Custodial Account pursuant to Section 4.04 of the
Seller's Warranties and Servicing Agreement, dated as of September 1, 2005,
Conventional Residential Fixed and Adjustable Rate Mortgage Loans, Group No.
2005-1.
Title of Account: IndyMac Bank, F.S.B. in trust for the Purchaser, Group
No. 2005-1.
Account Number: _______________
Address of office or branch
of the Company at
which Account is maintained: _________________________________
_________________________________
_________________________________
_________________________________
INDYMAC BANK, F.S.B.
Company
By: _____________________________
Name: ___________________________
Title: __________________________
X-0-0
XXXXXXX X-0
CUSTODIAL ACCOUNT LETTER AGREEMENT
_________________, 200_
To: _______________________________________
_______________________________________
_______________________________________
(the "Depository")
As Company under the Seller's Warranties and Servicing Agreement,
dated as of September 1, 2005, Conventional Residential Fixed and Adjustable
Rate Mortgage Loans, Group No. 2005-1 (the "Agreement"), we hereby authorize and
request you to establish an account, as a Custodial Account pursuant to Section
4.04 of the Agreement, to be designated as "IndyMac Bank, F.S.B., in trust for
the Purchaser - Conventional Residential Fixed and Adjustable Rate Mortgage
Loans - Group No. 2005-1." All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Company. You may refuse any deposit
which would result in violation of the requirement that the account be fully
insured as described below. This letter is submitted to you in duplicate. Please
execute and return one original to us.
INDYMAC BANK, F.S.B.
Company
By: _____________________________
Name: ___________________________
Title: __________________________
Date:____________________________
D-2-1
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number __________, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation through the
Bank Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
--------------------------------
Depository
By: _____________________________
Name: ___________________________
Title: __________________________
Date:____________________________
D-2-2
EXHIBIT E-1
ESCROW ACCOUNT CERTIFICATION
__________________, 200_
IndyMac Bank, F.S.B. hereby certifies that it has established the
account described below as an Escrow Account pursuant to Section 4.06 of the
Seller's Warranties and Servicing Agreement, dated as of September 1, 2005,
Conventional Residential Fixed and Adjustable Rate Mortgage Loans, Group No.
2005-1.
Title of Account:_____"IndyMac Bank, F.S.B. in trust for the Purchaser, Group
No. 2005-1, and various Mortgagors."
Account Number:______________________
Address of office or branch
of the Company at
which Account is maintained: _________________________________
_________________________________
_________________________________
_________________________________
INDYMAC BANK, F.S.B.
Company
By: _____________________________
Name: ___________________________
Title: __________________________
X-0-0
XXXXXXX X-0
ESCROW ACCOUNT LETTER AGREEMENT
___________________, 200_
To: _______________________________________
_______________________________________
_______________________________________
(the "Depository")
As Company under the Seller's Warranties and Servicing Agreement,
dated as of September 1, 2005, Conventional Residential Fixed and Adjustable
Rate Mortgage Loans, Group No. 2005-1 (the "Agreement"), we hereby authorize and
request you to establish an account, as an Escrow Account pursuant to Section
4.07 of the Agreement, to be designated as "IndyMac Bank, F.S.B. in trust for
the Purchaser, Group No. 2005-1, and various Mortgagors" All deposits in the
account shall be subject to withdrawal therefrom by order signed by the Company.
You may refuse any deposit which would result in violation of the requirement
that the account be fully insured as described below. This letter is submitted
to you in duplicate. Please execute and return one original to us.
INDYMAC BANK, F.S.B.
Company
By: _____________________________
Name: ___________________________
Title: __________________________
Date:____________________________
E-2-1
The undersigned, as Depository, hereby certifies that the above
described account has been established under Account Number ______, at the
office of the Depository indicated above, and agrees to honor withdrawals on
such account as provided above. The full amount deposited at any time in the
account will be insured by the Federal Deposit Insurance Corporation through the
Bank Insurance Fund ("BIF") or the Savings Association Insurance Fund ("SAIF").
--------------------------------
Depository
By: _____________________________
Name: ___________________________
Title: __________________________
Date:____________________________
E-2-2
EXHIBIT F
MONTHLY REMITTANCE ADVICE
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G
ASSIGNMENT AND ASSUMPTION
_________________, 200_
ASSIGNMENT AND ASSUMPTION, dated __________, between
__________________________________, a ___________________ corporation having an
office at __________________ ("Assignor") and _________________________________,
a __________________ -------- corporation having an office at __________________
("Assignee"): --------
For and in consideration of the sum of TEN DOLLARS ($10.00) and
other valuable consideration the receipt and sufficiency of which hereby are
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. The Assignor hereby grants, transfers and assigns to Assignee
all of the right, title and interest of Assignor, as purchaser, in, to and under
that certain Seller's Warranties and Servicing Agreement, Conventional
Residential Fixed and Adjustable Rate Mortgage Loans, Group No. 2005-1 (the
"Seller's Warranties and Servicing Agreement"), dated as of September 1, 2005,
by and between Xxxxxx Capital, A Division of Xxxxxx Brothers Holdings Inc., (the
"Purchaser"), and IndyMac Bank, F.S.B., (the "Company"), and the Mortgage Loans
Group No. 2005-1 delivered thereunder by the Company to the Assignor,.
2. The Assignor warrants and represents to, and covenants with,
the Assignee that:
a. The Assignor is the lawful owner of the Mortgage Loans with
the full right to transfer the Mortgage Loans free from any and all claims and
encumbrances whatsoever;
b. The Assignor has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses available to the Company with
respect to the Seller's Warranties and Servicing Agreement or the Mortgage
Loans;
c. The Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Seller's Warranties and
Servicing Agreement, the Custodial Agreement or the Mortgage Loans, including
without limitation the transfer of the servicing obligations under the Seller's
Warranties and Servicing Agreement. The Assignor has no knowledge of, and has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Seller's Warranties and
Servicing Agreement or the Mortgage Loans; and
G-1
d. Neither the Assignor nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action which
would constitute a distribution of the Mortgage Loans under the Securities Act
of 1933 (the "33 Act") or which would render the disposition of the Mortgage
Loans a violation of Section 5 of the 33 Act or require registration pursuant
thereto.
3. The Assignee warrants and represents to, and covenants with,
the Assignor and the Company that:
a. The Assignee agrees to be bound, as Purchaser, by all of the
terms, covenants and conditions of the Seller's Warranties and Servicing
Agreement, the Mortgage Loans and the Custodial Agreement, and from and after
the date hereof, the Assignee assumes for the benefit of each of the Company and
the Assignor all of the Assignor's obligations as Purchaser thereunder;
b. The Assignee understands that the Mortgage Loans have not been
registered under the 33 Act or the securities laws of any state;
c. The purchase price being paid by the Assignee for the Mortgage
Loans are in excess of $250,000 and will be paid by cash remittance of the full
purchase price within 60 days of the sale;
d. The Assignee is acquiring the Mortgage Loans for investment
for its own account only and not for any other person. In this connection,
neither the Assignee nor any Person authorized to act therefor has offered the
Mortgage Loans by means of any general advertising or general solicitation
within the meaning of Rule 502(c) of U.S. Securities and Exchange Commission
Regulation D, promulgated under the 1933 Act;
e. The Assignee considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Mortgage Loans;
f. The Assignee has been furnished with all information regarding
the Mortgage Loans that it has requested from the Assignor or the Company;
g. Neither the Assignee nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Mortgage Loans,
any interest in the Mortgage Loans or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other disposition of
the Mortgage Loans, any interest in the Mortgage Loans or any other similar
security from, or otherwise approached or negotiated with respect to the
Mortgage Loans, any interest in the Mortgage Loans or any other similar security
with, any person in any manner which would constitute a distribution of the
Mortgage Loans under the 33 Act or which would render the disposition of the
Mortgage Loans a violation of Section 5 of the 33 Act or require registration
pursuant thereto, nor will it act, nor has it authorized or will it authorize
any person to act, in such manner with respect to the Mortgage Loans; and
G-2
h. Either: (1) the Assignee is not an employee benefit plan
("Plan") within the meaning of section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or a plan (also "Plan") within the
meaning of section 4975(e)(1) of the Internal Revenue Code of 1986 ("Code"), and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or with
assets of, a Plan; or (2) the Assignee's purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975 of
the Code.
i. The Assignee's address for purposes of all notices and
correspondence related to the Mortgage Loans and the Seller's Warranties and
Servicing Agreement is:
____________________________
____________________________
____________________________
Attention:___________________
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Seller's
Warranties and Servicing Agreement are:
____________________________
____________________________
____________________________
G-3
IN WITNESS WHEREOF, the parties have caused this Assignment and
Assumption to be executed by their duly authorized officers as of the date first
above written.
------------------------------------- -------------------------------------
Assignor Assignee
By:__________________________________ By: _________________________________
Its:_________________________________ Its: ________________________________
G-4
EXHIBIT H
UNDERWRITING GUIDELINES
[INTENTIONALLY OMITTED]
L-1
EXHIBIT I
ACKNOWLEDGMENT AGREEMENT
On this ____ day of ____________, 200_, Xxxxxx Capital, A
Division of Xxxxxx Brothers Holdings Inc., (the "Purchaser") as the Purchaser
under that certain Seller's Warranties and Servicing Agreement dated as of
September 1, 2005, (the "Agreement"), does hereby contract with IndyMac Bank,
FSB (the "Company") as Company under the Agreement, for the servicing
responsibilities related to the Mortgage Loans listed on the Mortgage Loan
Schedule attached hereto. The Company hereby accepts the servicing
responsibilities transferred hereby and on the date hereof assumes all servicing
responsibilities related to the Mortgage Loans identified on the attached
Mortgage Loan Schedule all in accordance with the Agreement. The contents of
each Servicing File required to be delivered to service the Mortgage Loans
pursuant to the Agreement have been or shall be delivered to the Company by the
Purchaser in accordance with the terms of the Agreement.
With respect to the Mortgage Loans made subject to the Agreement
hereby, the related Closing Date shall be ___________________.
All other terms and conditions of this transaction shall be
governed by the Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Agreement.
G-1
This Acknowledgment Agreement may be executed simultaneously in
any number of counterparts. Each counterpart shall be deemed to be an original,
and all such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Purchaser and the Company have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
PURCHASER:
XXXXXX CAPITAL, A DIVISION OF
XXXXXX BROTHERS
HOLDINGS INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
SELLER:
INDYMAC BANK, FSB
By:_____________________________________
Name:___________________________________
Title:__________________________________
EXHIBIT I
ANNUAL CERTIFICATION
Re: [_______________] (the "Trust"), Mortgage Securitization
Certificates, ----- Series [_____], issued pursuant to the [the
Trust Agreement] [the Pooling and Servicing Agreement] [the
Servicing Agreement], dated as of [_____], 200[__] (the [the
Trust Agreement] [the Pooling and Servicing
---------------------- Agreement][the Servicing Agreement], among
[_____], as depositor (the --------- "Depositor"), [_____], as
trustee (the "Trustee"), [_____], as master ---------- -------
servicer (the "Master Servicer") [_____], as a servicer (the
"Servicer"), and [_____], as responsible party
I, [identify the certifying individual], certify to the
Depositor, the Master Servicer and the Trustee, and their officers, directors
and affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
1. The servicing information required to be provided to the Trustee
and the Master Servicer by [_______] as a Servicer under [the
Trust Agreement] [the Pooling and Servicing Agreement] [the
Servicing Agreement] has been so provided;
2. I am responsible for reviewing the activities performed by
[_______] as a Servicer under [the Trust Agreement] [the Pooling
and Servicing Agreement] [the Servicing Agreement] and based upon
my knowledge and the annual compliance review required under [the
Trust Agreement] [the Pooling and Servicing Agreement] [the
Servicing Agreement], and except as disclosed in the annual
compliance statement required to be delivered to the Trustee and
the Master Servicer in accordance with the terms of [the Trust
Agreement] [the Pooling and Servicing Agreement] [the Servicing
Agreement] (which has been so delivered to the Trustee and the
Master Servicer), [_________] as a Servicer has fulfilled its
obligations under [the Trust Agreement] [the Pooling and
Servicing Agreement] [the Servicing Agreement]; and
3. [If the Securitization Transfer occurs in 2005] All significant
deficiencies relating to the Servicer's compliance with the
minimum servicing standards for purposes of the report provided
by an independent public accountant, after conducting a review
conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure, as set forth
in [the Trust Agreement] [the Pooling and Servicing Agreement]
[the Servicing Agreement], have been disclosed to such accountant
and the Master Servicer and are included in such report; and
G-1
4. [If the Securitization Transfer occurs in 2006 or thereafter.]
The report on assessment of compliance with Servicing Criteria
and its related accountant's attestation report required to be
delivered by us under the [the Trust Agreement] [the Pooling and
Servicing Agreement] [the Servicing Agreement] have been
delivered to the Trustee and the Master Servicer and complied
with the requirements thereunder and any material instance of
non-compliance with the Servicing Criteria has been disclosed on
such reports.
Capitalized terms used but not defined herein shall have the
meanings assigned in [the Trust Agreement] [the Pooling and Servicing Agreement]
[the Servicing Agreement].
Date: _____________________________
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[Signature]
[Title]
