SERVICING AGREEMENT between MORGAN STANLEY MORTGAGE CAPITAL INC. Purchaser and INDYMAC BANK, F.S.B. Servicer Dated as of September 1, 2006 CONVENTIONAL, ADJUSTABLE AND FIXED RATE RESIDENTIAL MORTGAGE LOANS
Exhibit
99.8c
SERVICING
AGREEMENT
between
XXXXXX
XXXXXXX MORTGAGE CAPITAL INC.
Purchaser
and
INDYMAC
BANK, F.S.B.
Servicer
Dated
as
of September 1, 2006
CONVENTIONAL,
ADJUSTABLE AND FIXED RATE RESIDENTIAL MORTGAGE LOANS
TABLE
OF
CONTENTS
Page
ARTICLE
I
DEFINITIONS
|
Section
1.01
|
Definitions
|
1
|
ARTICLE
II
SERVICING
|
Section
2.01
|
Servicer
to Service.
|
7
|
|
Section
2.02
|
Liquidation
of Mortgage Loans
|
9
|
|
Section
2.03
|
Collection
of Mortgage Loan Payments.
|
10
|
|
Section
2.04
|
Establishment
of and Deposits to Custodial Account.
|
10
|
|
Section
2.05
|
Permitted
Withdrawals From Custodial Account.
|
11
|
|
Section
2.06
|
Establishment
of and Deposits to Escrow Account
|
12
|
|
Section
2.07
|
Permitted
Withdrawals From Escrow Account.
|
12
|
|
Section
2.08
|
Payment
of Taxes, Insurance and Other Charges; Tax Service
Contracts.
|
13
|
|
Section
2.09
|
Protection
of Accounts.
|
14
|
|
Section
2.10
|
Maintenance
of Hazard Insurance.
|
14
|
|
Section
2.11
|
Maintenance
of Mortgage Impairment Insurance.
|
15
|
|
Section
2.12
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
16
|
|
Section
2.13
|
Inspections.
|
16
|
|
Section
2.14
|
Restoration
of Mortgaged Property.
|
17
|
|
Section
2.15
|
Maintenance
of PMI Policy; Claims.
|
17
|
|
Section
2.16
|
Title,
Management and Disposition of REO Property.
|
18
|
|
Section
2.17
|
Permitted
Withdrawals with respect to REO Property.
|
19
|
|
Section
2.18
|
Real
Estate Owned Reports.
|
19
|
|
Section
2.19
|
Liquidation
Reports.
|
19
|
|
Section
2.20
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
20
|
ARTICLE
III
PAYMENTS
TO PURCHASER
|
Section
3.01
|
Remittances.
|
20
|
|
Section
3.02
|
Statements
to Purchaser.
|
20
|
|
Section
3.03
|
Advances
by Servicer.
|
21
|
ARTICLE
IV
GENERAL
SERVICING PROCEDURES
|
Section
4.01
|
Transfers
of Mortgaged Property.
|
21
|
|
Section
4.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
22
|
|
Section
4.03
|
Servicing
Compensation.
|
22
|
|
Section
4.04
|
Annual
Statement as to Compliance.
|
23
|
|
Section
4.05
|
Annual
Independent Public Accountants’ Servicing Report.
|
23
|
|
Section
4.06
|
Right
to Examine Servicer Records.
|
23
|
|
Section
4.07
|
Compliance
with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
|
24
|
ARTICLE
V
SERVICER
TO COOPERATE
|
Section
5.01
|
Provision
of Information.
|
24
|
|
Section
5.02
|
Financial
Statements; Servicing Facilities.
|
24
|
ARTICLE
VI
TERMINATION
|
Section
6.01
|
Termination.
|
25
|
|
Section
6.02
|
Termination
Upon Transfer of Servicing.
|
25
|
ARTICLE
VII
BOOKS
AND
RECORDS
|
Section
7.01
|
Possession
of Servicing Files.
|
26
|
ARTICLE
VIII
INDEMNIFICATION
AND ASSIGNMENT
|
Section
8.01
|
Indemnification.
|
27
|
|
Section
8.02
|
Limitation
on Liability of Servicer and Others.
|
27
|
|
Section
8.03
|
Limitation
on Resignation and Assignment by Servicer.
|
28
|
|
Section
8.04
|
Assignment
by Purchaser.
|
28
|
|
Section
8.05
|
Merger
or Consolidation of the Servicer.
|
28
|
iii
ARTICLE
IX
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
|
Section
9.01
|
Authority
and Capacity.
|
29
|
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES OF SERVICER
|
Section
10.01
|
Due
Organization and Authority.
|
29
|
|
Section
10.02
|
Ordinary
Course of Business.
|
30
|
|
Section
10.03
|
No
Conflicts.
|
30
|
|
Section
10.04
|
Ability
to Service.
|
30
|
|
Section
10.05
|
Ability
to Perform.
|
30
|
|
Section
10.06
|
No
Litigation Pending.
|
30
|
|
Section
10.07
|
No
Consent Required.
|
31
|
|
Section
10.08
|
No
Untrue Information.
|
31
|
|
Section
10.09
|
Reasonable
Servicing Fee.
|
31
|
ARTICLE
XI
DEFAULT
|
Section
11.01
|
Events
of Default.
|
31
|
|
Section
11.02
|
Waiver
of Defaults.
|
33
|
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01
|
Notices.
|
33
|
|
Section
12.02
|
Waivers.
|
34
|
|
Section
12.03
|
Entire
Agreement; Amendment.
|
34
|
|
Section
12.04
|
Execution;
Binding Effect.
|
34
|
|
Section
12.05
|
Headings.
|
34
|
|
Section
12.06
|
Applicable
Law.
|
34
|
|
Section
12.07
|
Relationship
of Parties.
|
35
|
|
Section
12.08
|
Severability
of Provisions.
|
35
|
|
Section
12.09
|
[Reserved].
|
35
|
|
Section
12.10
|
Exhibits.
|
35
|
|
Section
12.11
|
Counterparts.
|
35
|
|
Section
12.12
|
No
Solicitation.
|
35
|
|
Section
12.13
|
Cooperation
of Servicer with a Reconstitution.
|
36
|
|
Section
12.14
|
Waiver
of Trial by Jury.
|
37
|
|
Section
12.15
|
Submission
To Jurisdiction; Waivers.
|
38
|
iv
ARTICLE
XIII
COMPLIANCE
WITH REGULATION AB PROVISIONS
|
Section
13.01
|
Intent
of the Parties; Reasonableness.
|
38
|
|
|
Section
13.02
|
Additional
Representations and Warranties of the Servicer.
|
39
|
|
|
Section
13.03
|
Information
to Be Provided by the Servicer.
|
40
|
|
|
Section
13.04
|
Servicer
Compliance Statement.
|
43
|
|
|
Section
13.05
|
Report
on Assessment of Compliance and Attestation.
|
43
|
|
|
Section
13.06
|
Use
of Subservicers and Subcontractors.
|
44
|
|
|
Section
13.07
|
Indemnification;
Remedies.
|
45
|
|
EXHIBITS
EXHIBIT
1 FORM
OF
REMITTANCE REPORT
EXHIBIT
2 FORM
OF
CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT
3 FORM
OF
CUSTODIAL
ACCOUNT
LETTER AGREEMENT
EXHIBIT
4 FORM
OF
ESCROW ACCOUNT CERTIFICATION
EXHIBIT
5 FORM
OF
ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT
6 [RESERVED]
EXHIBIT
7 ANNUAL
CERTIFICATIONS
EXHIBIT
8
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE
v
This
Servicing Agreement (“Servicing
Agreement”
or
“Agreement”)
is
entered into as of September 1, 2006, by and between INDYMAC BANK, F.S.B.,
a
federal savings bank (the “Servicer”),
and
XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a New York corporation (the “Purchaser”).
WHEREAS,
the Purchaser and IndyMac Bank, F.S.B., as seller (the “Seller”)
entered into a Mortgage Loan Purchase and Warranties Agreement, dated as of
September 1, 2006 (the “Purchase
Agreement”)
pursuant to which the Purchaser agreed to purchase from the Seller certain
conventional, fixed and adjustable rate, first lien, residential mortgage loans
(the “Mortgage
Loans”)
to be
delivered as whole loans on a servicing retained basis; and
WHEREAS,
the Purchaser desires to have the Servicer service the Mortgage Loans, the
Servicer desires to service and administer the Mortgage Loans on behalf of
the
Purchaser, and the parties desire to provide the terms and conditions of such
servicing by the Servicer.
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth
herein and for other good and valuable consideration, the receipt and the
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions.
All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Purchase Agreement. The following terms are defined as
follows:
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
is
located and incorporating the Delinquency Collection Policies and
Procedures.
Ancillary
Income:
All
late charges, assumption fees, escrow account benefits, reinstatement fees,
and
similar types of fees arising from or in connection with any Mortgage Loan
to
the extent not otherwise payable to the Mortgagor under applicable law or
pursuant to the terms of the related Mortgage Note.
Closing
Date:
Shall
have the meaning set forth in the applicable Purchase Price and Terms
Agreement.
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.
Co-op
Lease:
With
respect to a Co-op Loan, the lease with respect to a dwelling unit occupied
by
the Mortgagor and relating to the stock allocated to the related dwelling
unit.
Co-op
Loan:
A
Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in
a
residential cooperative housing corporation and a collateral assignment of
the
related Co-op Lease.
Custodial
Account:
The
separate account or accounts created and maintained pursuant to Section
2.04.
Cut-off
Date:
Shall
have the meaning set forth in the applicable Purchase Price and Terms
Agreement.
Delinquency
Collection Policies and Procedures:
The
delinquency collection policies and procedures of the Servicer.
Depositor:
The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date:
The
15th day (or if such 15th day is not a Business Day, the Business Day
immediately preceding such 15th day) of the month of the related Remittance
Date.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Servicer pursuant
to Section 2.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
2.06.
Escrow
Payment:
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 document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 11.01.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Fidelity
Bond:
A
fidelity bond to be maintained by the Servicer pursuant to Section
2.12.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
2
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.
Mortgage:
With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
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;
except that with respect to real property located in jurisdictions in which
the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor. With respect to a Co-op Loan, the Security Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
2.11.
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
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgagor:
The
obligor on a Mortgage Note.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or a President or Vice President and by the Treasurer or the Secretary
or
one of the Assistant Treasurers or Assistant Secretaries of the Servicer, and
delivered to the Purchaser.
PMI
Policy or Primary Insurance Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in The
Wall Street Journal (Northeast edition).
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.
Purchase
Agreement:
The
Mortgage Loan Purchase and Warranties Agreement, dated as of September 1, 2006,
between the Purchaser and the Seller.
3
Purchase
Price and Terms Agreement:
With
respect to each pool of Mortgage Loans purchased pursuant to the Purchase
Agreement the related agreement setting forth the general terms and conditions
of the purchase transaction and identifying the Mortgage Loans to be purchased
thereunder, by and between the Seller and the Purchaser.
Purchaser:
As
defined in the Recitals.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF or
the
SAIF.
Qualified
Insurer:
An
insurance company duly qualified as such under the laws of the states in which
the Mortgaged Properties are located, duly authorized and licensed in such
states to transact the applicable insurance business and to write the insurance
provided, approved as an insurer by Xxxxxx Mae and Xxxxxxx Mac (or such other
rating as may be required by a Rating Agency in connection with a Securitization
Transaction in order to achieve the desired ratings for the securities to be
issued in connection with such Securitization Transaction).
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Remittance
Date:
The
18th day (or if such 18th
day is
not a Business Day, the first Business Day immediately preceding such
18th
day) of
any month, beginning with the first Remittance Date after the Closing
Date.
Remittance
Report: As
defined in Section 3.02.
REO
Property:
A
Mortgaged Property acquired by the Servicer on behalf of the Purchaser through
foreclosure or by deed in lieu of foreclosure, as described in Section
2.16.
Reporting
Date:
As
defined in Section 3.02.
Repurchase
Price:
As
defined in the Purchase Agreement.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
4
Security
Agreement:
The
agreement creating a security interest in the stock allocated to a dwelling
unit
in the residential cooperative housing corporation that was pledged to secure
such Co-op Loan and the related Co-op Lease.
Seller:
As
defined in the Recitals.
Servicer:
As
defined in the Recitals.
Servicer
Employees:
As
defined in Section 2.12.
Servicer
Information:
As
defined in Section 13.07(a).
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and disbursements) incurred in the
performance by the Servicer 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, administrative or judicial proceedings,
or any legal work or advice specifically related to servicing the Mortgage
Loans, including but not limited to, foreclosures, bankruptcies, condemnations,
drug seizures, foreclosures by subordinate or superior lienholders, and other
legal actions incidental to the servicing of the Mortgage Loans (provided that
such expenses are reasonable and that the Servicer specifies the Mortgage
Loan(s) to which such expenses relate), (c) the management and liquidation
of
the Mortgaged Property if the Mortgaged Property is acquired in satisfaction
of
the Mortgage, (d) taxes, assessments, water rates, sewer rates and other charges
which are or may become a lien upon the Mortgaged Property, and PMI Policy
premiums and fire and hazard insurance coverage, (e) any losses sustained by
the
Servicer with respect to the liquidation of the Mortgaged Property and (f)
compliance with the obligations under Section 2.08 (except with respect to
any
expenses incurred in connection with procuring or transferring Tax Service
Contracts as provided therein).
Servicing
Agreement:
This
agreement between the Purchaser and the Servicer for the servicing and
administration of the Mortgage Loans.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
Servicing
Fee:
With
respect to each Mortgage Loan subject to this Agreement, an amount equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan payable monthly. Such fee shall be
payable monthly and shall be pro-rated for any portion of a month during which
the Mortgage Loan is serviced by the Servicer under this Agreement. 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 4.03) of such Monthly Payment collected by the Servicer, or as otherwise
provided under Section 4.03.
5
Servicing
Fee Rate:
37.5
basis points (0.375%) per annum.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Servicer, during the
period in which the Servicer is acting as servicer pursuant to the Servicing
Agreement, 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 on Exhibit
A
to the
Purchase Agreement.
Servicing
Officer:
Any
officer of the Servicer 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 Servicer to the Purchaser upon request, as such list
may from time to time be amended.
Servicing
Rights:
Any and
all of the following: (a) any and all rights to service the Mortgage Loans;
(b) any payments to or monies received by the Servicer for servicing the
Mortgage Loans; (c) any late fees, penalties or similar payments (excluding
any prepayment penalties) with respect to the Mortgage Loans; (d) all
agreements or documents creating, defining or evidencing any such servicing
rights to the extent they relate to such servicing rights and all rights of
the
Servicer thereunder; (e) Escrow Payments or other similar payments with
respect to the Mortgage Loans and any amounts actually collected by the Servicer
with respect thereto; (f) all accounts and other rights to payment related
to any of the property described in this paragraph; and (g) any and all
documents, files, records, servicing files, servicing documents, servicing
records, data tapes, computer records, or other information pertaining to the
Mortgage Loans or pertaining to the past, present or prospective servicing
of
the Mortgage Loans.
Subcontractor:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Tax
Service Contract:
A
paid-in-full, life-of-loan tax service contract as described in Section 2.08
hereof.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
6
ARTICLE
II
SERVICING
Section
2.01 Servicer
to Service.
(a) From
and
after the Closing Date, the Servicer, as an independent contractor, shall
service and administer each Mortgage Loan and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices. Except as set forth in this Agreement, the Originator shall service
the Mortgage Loans on an “scheduled/scheduled” basis and in strict compliance
with Accepted Servicing Practices.
Consistent
with the terms of this Agreement, the Servicer 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
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that unless the Servicer has obtained the prior written consent of
the
Purchaser, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment of principal, interest or prepayment penalties (unless the Servicer
returns the prepayment penalties as indicated in the related Purchase Price
and
Terms Agreement or unless the Servicer waives such prepayment penalty because
it
is mandated by applicable law or the Servicer does so in its own discretion
and
remits from the Servicer’s own funds, without the right to reimbursement
therefore, the amount of the waived prepayment penalty to the Purchaser or
its
successors and assigns), reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final maturity date
on
such Mortgage Loan. Without limiting the generality of the foregoing, the
Servicer shall continue, and is hereby authorized and empowered, to execute
and
deliver on behalf of itself and the Purchaser, 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 Servicer, the Purchaser
shall furnish the Servicer with any powers of attorney and other documents
necessary or appropriate to enable the Servicer to carry out its servicing
and
administrative duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Servicer 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 Servicer. In addition, the Servicer shall
retain adequate personnel to effect such servicing and administration of the
Mortgage Loans.
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer 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, Servicer shall be under no obligation to deal with any Person with
respect to this Agreement or the Mortgage Loans unless the Servicer has been
notified of such transfers as provided in this Section 2.01. The Purchaser
may
sell and transfer, in whole or in part, the Mortgage Loans, provided that no
such sale and transfer shall be binding upon Servicer unless such transferee
shall agree in writing to be bound by the terms of this Agreement and the
Purchase Agreement, and an executed copy of the same shall have been delivered
to the Servicer. Upon receipt of notice of such transfer, the Servicer shall
xxxx its books and records to reflect the ownership of the Mortgage Loans by
such assignee, and the previous Purchaser shall be released from its obligations
hereunder. This Agreement shall be binding upon and inure to the benefit of
the
Purchaser and the Servicer and their permitted successors, assignees and
designees.
7
The
Servicing File retained by the Servicer pursuant to this Agreement shall be
appropriately marked and identified in the Servicer’s computer system to clearly
reflect the sale of the related Mortgage Loan to the Purchaser. The Servicer
shall release from its custody the contents of any Servicing File retained
by it
only in accordance with this Agreement, except when such release is required
in
connection with a repurchase of any such Mortgage Loan pursuant to Section
9 of
the Purchase Agreement.
The
Servicer shall forward to the Custodian or, at the request of the Purchaser,
to
the Purchaser or its designee, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into
in
accordance with this Agreement within two weeks of their execution, provided,
however, that the Servicer shall provide the Custodian with a certified true
copy of any such document submitted for recordation within two weeks of its
execution, and shall provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Custodian
within 120 days of its submission for recordation, and in the event that the
Seller does not cure such failure within 30 days of discovery or receipt of
written notification of such failure from the Purchaser, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by the Seller
at
the price and in the manner specified in Section 9 of the Purchase Agreement.
The foregoing repurchase obligation shall not apply in the event that the Seller
cannot deliver such original or copy of any document submitted for recordation
to the appropriate public recording office within the specified period due
to a
delay caused by the recording office in the applicable jurisdiction; provided
that the Seller shall instead deliver an Officer’s Certificate of a servicing
officer of the Seller, confirming that all such documents have been accepted
for
recording; provided that, upon request of the Purchaser and delivery by the
Purchaser to the Seller of a schedule of the related Mortgage Loans, the Seller
shall reissue and deliver to the Purchaser or its designee said officer’s
certificate relating to the related Mortgage Loans.
The
Servicer must have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The program shall
include evaluating and monitoring the overall quality of its loan production
and
the servicing activities of the Servicer. The program is to ensure that the
Mortgage Loans are originated and serviced in accordance with Accepted Servicing
Standards and the Underwriting Guidelines; guard against dishonest, fraudulent,
or negligent acts; and guard against errors and omissions by officers,
employees, or other authorized persons.
8
(b) In
addition to the Servicer’s servicing obligations as set forth herein, the
Servicer shall not consent to the placement of a lien on the Mortgaged Property
senior to that of the related Mortgage.
Section
2.02 Liquidation
of Mortgage Loans
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 2.01 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
Servicer shall take such action as (1) the Servicer 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 Servicer shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. Therefore, in connection
therewith, the Servicer shall strictly comply with Accepted Servicing Practices.
In the event that any payment due under any Mortgage Loan is not postponed
pursuant to Section 2.01 and remains delinquent for a period of 60 days or
any
other default continues for a period of 60 days beyond the expiration of any
grace or cure period (or such other period as is required by law in the
jurisdiction where the related Mortgaged Property is located), the Servicer
shall commence foreclosure proceedings in accordance with the Delinquency
Collection Policies and Procedures. In such connection, the Servicer shall
from
its own funds make all necessary and proper Servicing Advances, provided,
however, that the Servicer 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 2.05) or through Insurance
Proceeds (respecting which it shall have similar priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure,
in
the event the Servicer 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 the Servicer shall cause
the
Mortgaged Property to be so inspected. Upon completion of the inspection, the
Servicer shall promptly provide the Purchaser with a written report of the
environmental inspection.
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Servicer 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 Servicer to proceed with foreclosure or acceptance of a deed in
lieu
of foreclosure, the Servicer 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 Servicer, the Servicer shall be entitled to be reimbursed from
amounts in the Custodial Account pursuant to Section 2.05 hereof. In the event
the Purchaser directs the Servicer not to proceed with foreclosure or acceptance
of a deed in lieu of foreclosure, the Servicer shall be reimbursed for all
Servicing Advances made with respect to the related Mortgaged Property from
the
Custodial Account pursuant to Section 2.05 hereof.
9
Section
2.03 Collection
of Mortgage Loan Payments.
Following
the Closing Date the Servicer shall proceed diligently to collect all payments
due under each of the related Mortgage Loans when the same shall become due
and
payable and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect
to
the Mortgage Loans and each related 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
2.04 Establishment
of and Deposits to Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish one or more Custodial Accounts, to be maintained
under the sole dominion and control of the Purchaser and titled “IndyMac Bank,
F.S.B.
in trust
for Xxxxxx Xxxxxxx Mortgage Capital Inc., owner of Conventional Fixed Rate
Residential Mortgage Loans, 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. The creation
of any Custodial Account shall be evidenced by a certification in the form
of
Exhibit 2 hereto, in the case of an account established with the Servicer,
or by
a letter agreement in the form of Exhibit 3 hereto, in the case of an account
held by a depository other than the Servicer. A copy of such certification
or
letter agreement shall be furnished to the Purchaser and, upon request, to
any
subsequent Purchaser.
The
Servicer shall deposit in the Custodial Account on a daily basis on the Business
Day following receipt thereof, the following collections received by the
Servicer and payments made by the Servicer after the Cut-off Date, other than
payments of principal and interest due on or before the Cut-off Date, or
received by the Servicer prior to the 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;
|
| (iii) |
all
Liquidation Proceeds and any amount received with respect to REO
Property;
|
10
|
|
(iv)
|
all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 2.10 (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 2.14), Section 2.11 and
Section 2.15;
|
| (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 2.14;
|
| (vi) |
any
amount required to be deposited in the Custodial Account pursuant
to
Section 2.01, 2.09, 2.16, 3.01, 4.01 or
4.02;
|
| (vii) |
any
amounts payable in connection with the repurchase of any Mortgage
Loan
pursuant to Section 9 of the Purchase
Agreement;
|
| (viii) |
any
prepayment penalties received with respect to any Mortgage Loan or
payable
by the Servicer pursuant to Section 2.01 (unless the related Purchase
Price and Terms Agreement indicates otherwise);
|
| (ix) |
any
amounts required to be deposited by the Servicer pursuant to Section
2.11
in connection with the deductible clause in any blanket hazard insurance
policy; and
|
| (x) |
with
respect to each Principal Prepayment an amount (to be paid by the
Servicer
out of its funds) which, when added to all amounts allocable to interest
received in connection with the Principal Prepayment, equals one
month’s
interest on the amount of principal so prepaid at the Mortgage Loan
Remittance Rate.
|
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, unless otherwise provided herein, Ancillary Income need not
be
deposited by the Servicer 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 Servicer and the Servicer shall be entitled to retain and
withdraw such interest from the Custodial Account pursuant to Section
2.05.
Section
2.05 Permitted
Withdrawals From Custodial Account.
Subject
to Section 3.01, on each Remittance Date, the Servicer shall be entitled to
funds from the Custodial Account for the following purposes:
(i) to
pay to
itself the Servicing Fee;
(ii) to
reimburse itself for unreimbursed Servicing Advances (except to the extent
reimbursed pursuant to Section 2.07), any accrued but unpaid Servicing Fees
and
for unreimbursed advances of Servicer funds made pursuant to Sections 2.16
or
3.03, the Servicer’s right to reimburse itself pursuant to this subclause (ii)
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 Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any such reimbursement,
the Servicer’s right thereto shall be prior to the rights of the Purchaser
except that, where the Seller is required to repurchase a Mortgage Loan pursuant
to Section 9 of the Purchase Agreement or Section 4.02 of this Agreement, the
Servicer’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;
11
(iii) to
pay
itself any interest earned on funds deposited in the Custodial Account (all
such
interest to be withdrawn monthly not later than each Remittance Date);
and
(iv) to
clear
and terminate the Custodial Account upon the termination of this
Agreement.
Section
2.06 Establishment
of and Deposits to Escrow Account.
The
Servicer 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,
F.S.B., as
servicer, in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc., owner of
Conventional Fixed Rate Residential Mortgage Loans, and various
Mortgagors”.
The
Escrow Account shall be established with a Qualified Depository, in a manner
which shall provide maximum available insurance thereunder. Funds deposited
in
the Escrow Accounts may be drawn on by the Servicer in accordance with Section
2.07. The creation of any Escrow Account shall be evidenced by a certification
in the form of Exhibit 4 hereto, in the case of an account established with
the
Servicer, or by a letter agreement in the form of Exhibit 5 hereto, in the
case
of an account held by a depository other than the Servicer. A copy of such
certification shall be furnished to the Purchaser and, upon request, to any
subsequent Purchaser.
The
Servicer 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
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 2.07.
The
Servicer 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 Servicer shall pay from its own funds 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
2.07 Permitted
Withdrawals From Escrow Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
12
|
(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;
|
| (ii) |
to
reimburse itself for any Servicing Advance relating to taxes, assessments,
water rates, sewer rates and other charges which are or may become
a lien
upon the Mortgaged Property, and PMI Policy premiums and fire and
hazard
insurance coverage made by the Servicer with respect to a related
Mortgage
Loan (except with respect to any expenses incurred in procuring or
transferring Tax Service Contracts pursuant to Section 2.08), 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 or applicable
federal or state law or judicial or administrative ruling;
|
| (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
2.14;
|
| (vi) |
to
pay to the Servicer, or any Mortgagor to the extent required by law,
any
interest paid on the funds deposited in the Escrow Account;
and
|
| (vii) |
to
clear and terminate the Escrow Account on the termination of this
Agreement.
|
Section
2.08 Payment
of Taxes, Insurance and Other Charges; Tax Service Contracts.
With
respect to each Mortgage Loan, the Servicer 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 Servicer 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 Servicer shall determine whether any such payments
are
made by the Mortgagor at the time they first become due. The Servicer assumes
full responsibility for the payment of all such bills and shall effect 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 Servicer shall
make advances from its own funds to effect such payments within such time period
as will avoid the loss of the related Mortgaged Property by foreclosure of
a tax
or other lien.
13
The
Servicer shall ensure that each of the Mortgage Loans shall be covered by a
Tax
Service Contract which shall be assigned to the Purchaser or the Purchaser’s
designee at the Servicer’s expense in the event that the Servicer is no longer
the servicer of the related Mortgage Loan(s) hereunder. To the extent that
a
Mortgage Loan does not have a Tax Service Contract, the Servicer shall pay
to a
tax service vendor the appropriate fee to obtain coverage.
Section
2.09 Protection
of Accounts.
The
Servicer may transfer 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
Servicer shall bear any expenses, losses or damages sustained by the Purchaser
because the Escrow Account are not demand deposit accounts.
Section
2.10 Maintenance
of Hazard Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan, hazard insurance
such that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer rated as described in the Underwriting Guidelines against
loss by fire, hazards of extended coverage and such other hazards as are
required to be insured pursuant to Accepted Servicing Practices, in an amount
which is at least equal to the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
aggregate unpaid 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
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is, and shall continue to be, covered by a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier rated
as described in the Underwriting Guidelines in an amount representing coverage
not less than the least of (i) the aggregate unpaid principal balance of the
related Mortgage Loan and of any mortgage loan senior to such Mortgage Loan,
(ii) the maximum amount of insurance which is available under the National
Flood
Insurance Act of 1968, as amended (regardless of whether the area in which
such
Mortgaged Property is located is participating in such program), and (iii)
the
full replacement value of the improvements which are part of such Mortgaged
Property. If 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 National Flood Insurance Act of 1968, as amended, the
Servicer 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 Servicer shall immediately force place the required flood insurance on
the
Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Servicer shall
verify that the coverage required of the owner’s association, including hazard,
flood, liability, and fidelity coverage, is being maintained in accordance
with
Accepted Servicing Practices, and secure from the owner’s association its
agreement to notify the Servicer 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.
14
The
Servicer shall cause to be maintained on each Mortgaged Property 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 the Purchaser or the Servicer 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 Servicer 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 Servicer and its successors and
assigns as a mortgagee and loss payee and shall be endorsed with non
contributory standard or New York mortgagee clauses which shall provide for
at
least 30 days prior written notice of any cancellation, reduction in amount
or
material change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Servicer
shall not accept any such insurance policies from insurance companies unless
such companies are as described in the Underwriting Guidelines and are licensed
to do business in the jurisdiction in which the Mortgaged Property is located.
The Servicer shall determine that such policies provide sufficient risk coverage
and amounts as required pursuant to Accepted Servicing Practices, that they
insure the property owner, and that they properly describe the property address.
The Servicer 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; provided, however, that in the event that
no
such notice is furnished by the Servicer, the Servicer shall ensure that
replacement insurance policies are in place in the required coverages and the
Servicer shall be solely liable for any losses in the event coverage is not
provided.
Pursuant
to Section 2.04, any amounts collected by the Servicer 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 Servicer’s normal servicing procedures as specified in
Section 2.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 2.05.
Section
2.11 Maintenance
of Mortgage Impairment Insurance.
In
the
event that the Servicer 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 2.10 and otherwise
complies with all other requirements of Section 2.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 2.10. Any
amounts collected by the Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 2.05. 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 2.10, and there shall have been a
loss
which would have been covered by such policy, the Servicer 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
be
deposited from the Servicer’s funds, without reimbursement therefor. Upon
request of the Purchaser, the Servicer shall cause to be delivered to the
Purchaser a certified true copy of such policy and a statement from the insurer
thereunder that such policy shall in no event be terminated or materially
modified without 30 days’ prior written notice to the Purchaser.
15
Section
2.12 Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
The
Servicer 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 (“Servicer
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
Servicer against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Servicer Employees. Such Fidelity
Bond
and Errors and Omissions Insurance Policy also shall protect and insure the
Servicer 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 2.12 requiring such Fidelity
Bond
and Errors and Omissions Insurance Policy shall diminish or relieve the Servicer
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such Fidelity Bond and Errors and Omissions Insurance Policy
shall be at least equal to the corresponding amounts required by Xxxxxx Mae
in
the Xxxxxx Xxx Guides or by Xxxxxxx Mac in the Xxxxxxx Xxx Xxxxxxx’ &
Servicers’ Guide. Upon the request of the Purchaser, the Servicer shall cause to
be delivered to the Purchaser a certified true copy of such Fidelity Bond and
Errors and Omissions Insurance Policy and a statement from the surety and the
insurer that such Fidelity Bond and Errors and Omissions Insurance Policy shall
in no event be terminated or materially modified without 30 days’ prior written
notice to the Purchaser.
Section
2.13 Inspections.
The
Servicer shall inspect the Mortgaged Property as often as is deemed necessary
by
the Servicer to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than 45 and less than
60
days delinquent, the Servicer shall inspect the Mortgaged Property and shall
conduct subsequent inspections in accordance with Accepted Servicing Practices.
The Servicer shall keep a written report of each such inspection.
16
Section
2.14 Restoration
of Mortgaged Property.
The
Servicer 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 and the terms of this Agreement.
At
a minimum, the Servicer shall comply with the following conditions in connection
with any such release of Insurance Proceeds or Condemnation
Proceeds:
| (i) |
the
Servicer shall receive satisfactory independent verification of completion
of repairs and issuance of any required approvals with respect thereto;
|
| (ii) |
the
Servicer 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
Servicer shall verify that the Mortgage Loan is not in default;
and
|
| (iv) |
pending
repairs or restoration, the Servicer shall place the Insurance Proceeds
or
Condemnation Proceeds in the Escrow
Account.
|
If
the
Purchaser is named as an additional loss payee, the Servicer is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
Section
2.15 Maintenance
of PMI Policy; Claims.
With
respect to each Mortgage Loan covered by a PMI Policy, as set forth on the
Mortgage Loan Schedule, the Servicer shall, without any cost to the Purchaser,
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy, and shall pay or shall cause the Mortgagor to pay the premium thereon
on
a timely basis, for the term of such Mortgage Loan. In the event that such
PMI
Policy shall be terminated, the Servicer 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 Servicer 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 Servicer shall in no event have
any
responsibility or liability for any failure to recover under the PMI Policy
for
such reason. If the Servicer 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 Servicer 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 Servicer 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 Servicer 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 Servicer shall obtain a replacement PMI Policy as provided
above.
17
In
connection with its activities as servicer, the Servicer 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 2.04, any amounts collected by the Servicer under any PMI Policy shall
be deposited in the Custodial Account, subject to withdrawal pursuant to Section
2.05.
Section
2.16 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 Servicer or the Purchaser’s designee, on behalf of the Purchaser, or
in the event the Purchaser is not authorized or permitted to hold title to
real
property in the state where the REO Property is located, or would be adversely
affected under the “doing business” or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an Opinion of Counsel obtained by the
Servicer from any attorney duly licensed to practice law in the state where
the
REO Property is located. The Person or Persons holding such title other than
the
Purchaser shall acknowledge in writing that such title is being held as nominee
for the Purchaser.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Purchaser solely for the purpose of its prompt disposition and sale. The
Servicer, either itself or through an agent selected by the Servicer, 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 Servicer 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 Servicer deems
to
be in the best interest of the Purchaser. The Servicer shall notify the
Purchaser from time to time as to the status of each REO Property.
The
Servicer 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 one year after
title has been taken to such REO Property, unless the Servicer 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 Servicer 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
Servicer as mortgagee, and such purchase money mortgage shall not be held
pursuant to this Agreement, but instead a separate participation agreement among
the Servicer and Purchaser shall be entered into with respect to such purchase
money mortgage.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in an 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 National Flood Insurance
Act
of 1968, as amended, flood insurance in the amount required in Section 2.10
hereof.
18
The
disposition of REO Property shall be carried out by the Servicer at such price,
and upon such terms and conditions, as the Servicer 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 Servicer shall reimburse itself
pursuant to Section 2.05(iii) hereof, for any related unreimbursed Servicing
Advances, unpaid Servicing Fees and unreimbursed advances made pursuant to
this
Section, 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; provided that such distribution shall, in any event, be made within
ninety (90) days from and after the closing of the sale of such REO Property.
With
respect to each REO Property, the Servicer shall hold all funds collected and
received in connection with the operation of the REO Property in the Custodial
Account. The Servicer shall cause to be deposited on a daily basis upon the
receipt thereof in each Custodial Account all revenues received with respect
to
the conservation and disposition of the related REO Property.
Section
2.17 Permitted
Withdrawals with respect to REO Property.
The
Servicer shall withdraw funds on deposit in the Custodial Account with respect
to each related REO Property necessary for the proper operation, management
and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 2.10 and the fees of any managing agent acting
on
behalf of the Servicer. The Servicer shall make monthly distributions on each
Remittance Date to the Purchaser of the net cash flow from the REO Property
(which shall equal the revenues from such REO Property net of the expenses
described in Section 2.16 and of any reserves reasonably required from time
to
time to be maintained to satisfy anticipated liabilities for such
expenses).
Section
2.18 Real
Estate Owned Reports.
Together
with the statement furnished pursuant to Section 2.19, the Servicer shall
furnish to the Purchaser on or before the 10th
Business
Day of each month a statement with respect to any REO Property covering the
operation of such REO Property for the previous month and the Servicer’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
2.19 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 Servicer shall submit
to the Purchaser a liquidation report with respect to such Mortgaged
Property.
19
Section
2.20 Reports
of Foreclosures and Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Servicer
shall report such foreclosure or abandonment as required pursuant to Section
6050J of the Code.
ARTICLE
III
PAYMENTS
TO PURCHASER
Section
3.01 Remittances.
With
respect to each Determination Date, the Servicer shall submit to the Purchaser
the Remittance Report required by Section 3.02 of this Agreement, setting forth
the sources and uses of funds deposited and to be deposited by the Servicer
into
the Custodial Account. If such monthly remittance advice is determined by the
Purchaser to be in order, on each Remittance Date the Servicer shall cause
all
amounts deposited in the Custodial Account as of the close of business on the
immediately preceding Determination Date, minus 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) to
be
remitted as follows: (i) to the Servicer, amounts due to the Servicer pursuant
to Section 2.05, and (ii) to the Purchaser, all funds remaining in the Custodial
Account.
With
respect to any funds deposited in the Custodial Account after the second
Business Day following the Business Day on which such deposit was required
to be
made, the Servicer 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 two 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 Servicer 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 Servicer of any
such
interest shall not be deemed an extension of time for payment or a waiver of
any
Event of Default by the Servicer.
Section
3.02 Statements
to Purchaser.
Each
month, no later than the 10th
Business
Day (the “Reporting
Date”),
the
Servicer shall furnish to the Purchaser a remittance report, in the form of
Exhibit 1 hereto (the “Remittance
Report”),
in
electronic format acceptable to the Purchaser, containing information regarding
funds collected during the prior calendar month.
In
addition, not more than 60 days after the end of each calendar year, commencing
with the first December 31 following the Cut-off Date, the Servicer shall
furnish to each Person who was a Purchaser of the Mortgage Loans 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.
20
Such
obligation of the Servicer shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Servicer
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
The
Servicer 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.
Section
3.03 Advances
by Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds an amount equal to all
Monthly Payments 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 2.01.
The Servicer’s obligation to make such advances as to any Mortgage Loan will
continue through the earlier to occur of (a) the last Monthly Payment due prior
to the payment in full of the Mortgage Loan or (b) 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. To the extent permitted under
Section 2.05 hereof, the Servicer shall be entitled to first priority
reimbursement for principal and interest advances and for Servicing Advances
from recoveries from the related Mortgagor or from all Liquidation Proceeds
and
other payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the related Mortgage Loan.
ARTICLE
IV
GENERAL
SERVICING PROCEDURES
Section
4.01 Transfers
of Mortgaged Property.
The
Servicer shall be required 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 Servicer 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 Servicer shall not exercise such rights if prohibited by
law
from doing so, provided, however, that the Servicer 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
any.
21
If
the
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer, in the Purchaser’s name, shall, to the
extent permitted by applicable law, 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 Servicer
is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Servicer has the prior consent of the primary
mortgage guarantee 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. 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.
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the Underwriting Guidelines for approving the credit of the proposed transferee
which are used by the Servicer with respect to underwriting mortgage loans
of
the same type as the Mortgage Loans. If the credit of the proposed transferee
does not meet the Underwriting Guidelines, the Servicer 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
4.02 Satisfaction
of Mortgages and Release of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 3.02, and may request the release of any Mortgage
Loan Documents from the Purchaser in accordance with this Section 4.02 hereof.
The Servicer shall obtain discharge of the related Mortgage Loan as of record
within any related time limit required by applicable law.
If
the
Servicer satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Servicer
otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Servicer 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 Servicer shall maintain the Fidelity Bond and Errors and
Omissions Insurance Policy as provided for in Section 2.12 insuring the Servicer
against any loss it may sustain with respect to any Mortgage Loan not satisfied
in accordance with the procedures set forth herein.
Section
4.03 Servicing
Compensation.
As
consideration for servicing the Mortgage Loans, the Servicer shall withdraw
the
Servicing Fee with respect to each Mortgage Loan from the Custodial Account
pursuant to Section 2.05 hereof. Such Servicing Fee shall be payable monthly,
computed on the basis of the number of Mortgage Loans subject to this Agreement.
The Servicing Fee shall be pro-rated when servicing is for less than one month.
The obligation of the Purchaser to pay, and the Servicer’s right to withdraw,
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 2.05), of such Monthly
Payment collected by the Servicer, or as otherwise provided under Section
2.05.
22
Additional
servicing compensation in the form of Ancillary
Income shall
be
retained by the Servicer to the extent not required to be deposited in the
Custodial Account. The Servicer 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.
Section
4.04 Annual
Statement as to Compliance.
The
Servicer shall deliver to the Purchaser, on or before March 10th each year
beginning March 10, 2007,
and,
if
applicable,
on the
related
Transfer
Date an Officer’s Certificate, stating that (i) a review of the activities of
the Servicer during the preceding calendar year and of performance under
this
Agreement has been made under such officer’s supervision, and (ii) the Servicer
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 Servicer 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 Servicer to cure such default.
Section
4.05 Annual
Independent Public Accountants’ Servicing Report.
As
long
as any Mortgage Loans are being serviced hereunder, or were serviced during
the
prior calendar year on,
or
before March 10th of each year beginning March 10, 2007, the Servicer, 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 III have been complied with, and that, on the basis of such
examination conducted substantially in compliance with the Uniform
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
such exceptions as such firm shall believe to be immaterial.
Section
4.06 Right
to Examine Servicer Records.
The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Servicer, whether held by the Servicer
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.
23
Section
4.07 Compliance
with Xxxxx-Xxxxx-Xxxxxx Act of 1999.
With
respect to each Mortgage Loan and the related Mortgagor, the Servicer shall
comply with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended and all
applicable regulations promulgated thereunder, and shall provide all notices
required thereunder.
ARTICLE
V
SERVICER
TO COOPERATE
Section
5.01 Provision
of Information.
During
the term of this Agreement, the Servicer shall furnish to the Purchaser such
periodic, special, or other reports or information, whether or not provided
for
herein, as shall be necessary, reasonable, or appropriate with respect to the
Purchaser or the purposes of this Agreement. All such reports or information
shall be provided by and in accordance with all reasonable instructions and
directions which the Purchaser may give.
The
Servicer 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
5.02 Financial
Statements; Servicing Facilities.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the corporate group
that includes the Servicer for the most recently completed five fiscal years
for
which such statements are available, as well as a Consolidated Statement of
Condition at the end of the last two fiscal years covered by any Consolidated
Statement of Operations. The Servicer also shall make available any comparable
interim statements to the extent any such statements have been prepared by
or on
behalf of the corporate group that includes the Servicer (and are available
upon
request to members or stockholders of the corporate group that includes the
Servicer or to the public at large). The Servicer shall furnish promptly to
the
Purchaser or a prospective purchaser copies of the statements specified
above.
The
Servicer shall make available to the Purchaser or any prospective Purchaser
a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Servicer or the financial
statements of the corporate group that includes the Servicer, and to permit
any
prospective purchaser to inspect the Servicer’s servicing facilities for the
purpose of satisfying such prospective purchaser that the Servicer has the
ability to service the Mortgage Loans as provided in this
Agreement.
24
ARTICLE
VI
TERMINATION
Section
6.01 Termination.
(a)
Termination
of Servicer.
The
respective obligations and responsibilities of the Servicer shall terminate
upon: (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 all REO
Property and the remittance of all funds due hereunder; or (ii) by mutual
consent of the Servicer and the Purchaser in writing; or (iii) in the event
that
the Mortgage Loans become the subject of a Securitization Transaction, in
accordance with any requirements of any rating agency which has rated or will
rate some or all of the securities issued in connection with such Securitization
Transaction, as such requirements pertain to such Securitization
Transaction.
(b)
Agency
Suspension.
Should
the Servicer at any time during the term of this Agreement have its right to
service temporarily or permanently suspended by Xxxxxx Xxx and Xxxxxxx Mac
or
otherwise cease to be an approved servicer of conventional residential mortgage
loans for Xxxxxx Mae or Xxxxxxx Mac, then the Purchaser may immediately
terminate this Agreement and accelerate performance of the provisions of the
Purchase Agreement to require immediate transfer of the Servicing
Rights.
Section
6.02 Termination
Upon Transfer of Servicing.
(a) Termination
Procedures.
Subject
to Section 11.01, the Purchaser may terminate this Agreement and transfer the
servicing from the Servicer with respect to the Mortgage Loans on such date
as
the Purchaser shall inform the Servicer (the “Transfer
Date”)
by
providing written notice to the Servicer at least 30 Business Days prior to
the
Transfer Date of its intent to transfer the servicing of the Mortgage Loans
from
the Servicer on the Transfer Date, provided that, in any event, the Servicer
shall be given timely notice to allow it to notify the related mortgagors of
the
transfer of servicing in accordance with the requirements of the Real Estate
Settlement Procedures Act and the Xxxxxxxx Xxxxxxxx National Affordable Housing
Act of 1990, as amended. On or before the Transfer Date specified by the
Purchaser in accordance with this paragraph (a) for the transfer of servicing
from the Servicer, the Servicer 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 Loan Documents
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
related Mortgage Loans and related documents, at the Purchaser’s sole expense.
The Servicer shall cooperate fully with the Purchaser and such successor in
effecting the termination of the Servicer’s responsibilities and rights
hereunder.
Except
as
otherwise provided in this Agreement, on the Transfer Date for each Mortgage
Loan, this Agreement, except for Articles VI, VIII, IX and X which shall survive
the related Transfer Date, shall terminate with respect to such Mortgage
Loan.
25
(b) Servicing
Advances and Advances of Principal and Interest.
The
Servicer shall be reimbursed for any Servicing Advances or advances of principal
and interest in relation to any Mortgage Loan no later than five (5) Business
Days following the related Transfer Date, notwithstanding the fact that the
Servicer or the successor servicer has not received a Monthly Payment or
Liquidation Proceeds in relation to such Mortgage Loan. At such time, the
Servicer shall be entitled to be reimbursed for all unreimbursed Servicing
Advances and/or advances of principal and interest with respect to such Mortgage
Loan on a first priority basis from the Monthly Payment or Liquidation Proceeds
received with respect to such Mortgage Loan. This Section 6.02(b) shall survive
each Transfer Date.
ARTICLE
VII
BOOKS
AND RECORDS
Section
7.01 Possession
of Servicing Files.
The
contents of each Servicing File are and shall be held in trust by the Servicer
for the benefit of the Purchaser as the owner thereof. The Servicer shall
maintain in the Servicing File a copy of the contents of each Mortgage File
and
the originals of the documents in each Mortgage File not delivered to the
Purchaser. The possession of the Servicing File by the Servicer is at the will
of the Purchaser for the sole purpose of servicing the related Mortgage Loan,
pursuant to this Agreement, and such retention and possession by the Servicer
is
in its capacity as Servicer only and at the election of the Purchaser. The
Servicer 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 Servicer’s servicing of the Mortgage Loans
pursuant to this Agreement, or is in connection with a repurchase of any
Mortgage Loan pursuant to Section 9 of the Purchase Agreement.
The
Servicer 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
Servicer shall maintain in its possession, available for inspection by the
Purchaser’s designee, and shall deliver to the Purchaser or its designee upon
demand, evidence of compliance with all federal, state and local laws, rules
and
regulations, including but not limited to documentation as to the method used
in
determining the applicability of the provisions of the National Flood Insurance
Act of 1968, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project pursuant to
Accepted Servicing Practices and periodic inspection reports as required by
Section 2.13.
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer 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 Servicer 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 or transfer one or more of the
Mortgage Loans, provided, however, that the transferee will not be deemed to
be
a Purchaser hereunder binding upon the Servicer unless such transferee shall
agree in writing to be bound by the terms of this Agreement and of the
assignment and assumption of this Agreement executed by the transferee shall
have been delivered to the Servicer. The Purchaser also shall advise the
Servicer of the transfer. Upon receipt of notice of the transfer, the Servicer
shall cause 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.
26
ARTICLE
VIII
INDEMNIFICATION
AND ASSIGNMENT
Section
8.01 Indemnification.
The
Servicer agrees to indemnify and hold the Purchaser harmless from any liability,
claim, loss or damage (including, without limitation, any reasonable legal
fees,
judgments or expenses relating to such liability, claim, loss or damage) to
the
Purchaser directly or indirectly resulting from the Servicer’s
failure:
(a) to
observe and perform any or all of Servicer’s duties, obligations, covenants,
agreements, warranties or representations contained in this Agreement or in
the
Purchase Agreement; or
(b) to
comply
with all applicable requirements with respect to the servicing of the Mortgage
Loans as set forth herein.
The
Servicer immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement.
Section
8.02 Limitation
on Liability of Servicer and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer 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 Servicer or any such person against any breach of
warranties or representations made herein, its own negligent actions, 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 Servicer
and any director, officer, employee or agent of the Servicer 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 Servicer 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 Servicer may, with the prior written
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 Servicer shall be entitled to reimbursement
from the Purchaser of the reasonable legal expenses and costs of such
action.
27
Section
8.03 Limitation
on Resignation and Assignment by Servicer.
The
Purchaser has entered into this Agreement with the Servicer and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Servicer, 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
Servicer shall not 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
Servicer shall not resign from the obligations and duties hereby imposed on
it
except by consent of 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 Servicer. Any such determination permitting the
resignation of the Servicer 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 Servicer’s responsibilities
and obligations hereunder in the manner provided in Section 6.02.
Without
in any way limiting the generality of this Section 8.03, in the event that
the
Servicer 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
12.01, without any payment of any penalty or damages and without any liability
whatsoever to the Purchaser or any third party.
Section
8.04 Assignment
by Purchaser.
The
Purchaser shall have the right, without the consent of the Servicer, 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
and
the assignee or designee shall accede to the rights and obligations hereunder
of
the Purchaser with respect to such Mortgage Loans. All references to the
Purchaser in this Agreement shall be deemed to include its assignee or designee.
Any such notice of assignment shall be in writing and delivered to the Servicer
as provided in Section 12.01 of this Agreement.
Section
8.05 Merger
or Consolidation of the Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will 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 Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, or any Person succeeding to the business of the Servicer,
shall be the successor of the Servicer 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 whose deposits are insured
by FDIC or a company whose business includes the origination and servicing
of
mortgage loans, shall meet the requirements set forth in Section 6.02 hereof,
and shall have a tangible net worth not less than $25,000,000.
28
ARTICLE
IX
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
As
of the
Closing Date, the Purchaser warrants and represents to, and covenants and agrees
with, the Servicer as follows:
Section
9.01 Authority
and Capacity.
The
execution, delivery and performance by the Purchaser of this Agreement has
been
duly and validly authorized by all necessary corporate action. This Agreement
constitutes a legal, valid and enforceable obligation of the
Purchaser.
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES OF SERVICER
As
of the
Closing Date, the Servicer warrants and represents to, and covenants and agrees
with, the Purchaser as follows:
Section
10.01 Due
Organization and Authority.
The
Servicer is a federal savings bank duly organized, validly existing and in
good
standing under the laws of the United States of America 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 Servicer, and in
any
event the Servicer is in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of the related Mortgage Loan
in
accordance with the terms of this Agreement; the Servicer 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 or transfer to be delivered pursuant to this
Agreement) by the Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement evidences the
valid, binding and enforceable obligation of the Servicer; and all requisite
corporate action has been taken by the Servicer to make this Agreement valid
and
binding upon the Servicer in accordance with its terms;
29
Section
10.02 Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer.
Section
10.03 No
Conflicts.
Neither
the execution and delivery of this Agreement, 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
Servicer’s charter or by-laws or any legal restriction or any agreement or
instrument to which the Servicer 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 Servicer 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.
Section
10.04 Ability
to Service.
The
Servicer is an approved 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 Servicer is in good standing to enforce, originate,
sell mortgage loans to, and service mortgage loans in the jurisdictions wherein
the Mortgaged Properties are located and with Xxxxxx Mae and Xxxxxxx Mac, and
no
event has occurred, including but not limited to a change in insurance coverage,
which would make the Servicer unable to comply with Xxxxxx Mae or Xxxxxxx Mac
eligibility requirements or which would require notification to either Xxxxxx
Mae or Xxxxxxx Mac.
Section
10.05 Ability
to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement.
Section
10.06 No
Litigation Pending.
There
is
no action, suit, proceeding or investigation pending or threatened against
the
Servicer, before any court, administrative agency or other tribunal asserting
the invalidity of this Agreement, seeking to prevent the consummation of any
of
the transactions contemplated by this Agreement or 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 Servicer,
or in any material impairment of the right or ability of the Servicer to carry
on its business substantially as now conducted, or in any material liability
on
the part of the Servicer, 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 Servicer contemplated herein, or which
would be likely to impair materially the ability of the Servicer to perform
under the terms of this Agreement.
30
Section
10.07 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 Servicer
of
or compliance by the Servicer with this Agreement or the servicing 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
Closing Date.
Section
10.08 No
Untrue Information.
Neither
this Agreement 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 untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not
misleading.
Section
10.09 Reasonable
Servicing Fee.
The
Servicer acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Servicer, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement and the Purchase Agreement.
ARTICLE
XI
DEFAULT
Section
11.01 Events
of Default.
The
following shall constitute an Event of Default under this Agreement on the
part
of the Servicer:
(a) any
failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period
of two Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the
Purchaser; or
(b) the
failure by the Servicer duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Servicer set forth
in
this Agreement which continues unremedied for a period of 30 days (except that
such number of days shall be fifteen in the case of a failure to pay any premium
for any insurance policy required to be maintained under this Agreement) 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 or by the
Custodian; or
(c) 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,
bankruptcy, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days;
or
31
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(e) the
Servicer 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
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(f) the
Servicer attempts to assign its right to servicing compensation hereunder or
the
Servicer 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; or
(g) the
Servicer fails to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are
located.
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 Servicer, may immediately terminate
without compensation all the rights and obligations of the Servicer under this
Agreement and any Reconstitution Agreement and in and to the Mortgage Loans
and
the proceeds thereof, provided, however, that with respect to any termination
as
a result of an Event of Default under clause (c) or (d) above, the Servicer,
within sixty (60) days following receipt of such notice from the Purchaser,
shall have the right to deliver to the Purchaser a firm 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 or under any Reconstitution Agreement related to any
of
the Mortgage Loans; provided further that such third party servicer is
acceptable to the Purchaser in its sole discretion.
Upon
receipt by the Servicer of such written notice, all authority and power of
the
Servicer 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 6.02. Upon written request from the Purchaser, the Servicer shall
prepare, execute and deliver any and all documents and other instruments, place
in such successor’s possession all Mortgage Files, and do or accomplish all
other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise, at the
Servicer’s sole expense. The Servicer agrees to cooperate with the Purchaser and
such successor in effecting the termination of the Servicer’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 Servicer to the Custodial Account or Escrow Account or
thereafter received with respect to the Mortgage Loans.
32
Section
11.02 Waiver
of Defaults.
The
Purchaser may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any such 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
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Notices.
All
notices, requests, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon the delivery or mailing thereof, as the
case
may be, sent by registered or certified mail, return receipt
requested:
(a) If
to
Purchaser to:
Xxxxxx
Xxxxxxx Mortgage Capital Inc.
1221
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx
00000
Attention:
Xxxxx
Xxxxxxxxxx - Whole
Loan Operations Manager
Fax:
000-000-0000
Email:
xxxxx.xxxxxxxxxx@xxxxxxxxxxxxx.xxx
with copies to:
Xxxx Xxxxxxxx
Xxxxxx
Xxxxxxx - Servicing Oversight
0000
X-Xxx Xxx
Xxxxx
000
Xxxx
Xxxxx, Xxxxxxx 00000
Fax:
000-000-0000
Email:
xxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
(b) If
to
Servicer to:
IndyMac
Bank,
F.S.B.
Capital
Markets
33
0000
X.
Xxxxxxxx Xxxxxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
SVP,
Chief Operations Officer
Section
12.02 Waivers.
Either
the Servicer or the Purchaser may upon consent of all parties, by written notice
to the others:
(a) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the others hereunder; and
(b) Waive
or
modify performance of any of the obligations of the others
hereunder.
The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other subsequent
breach.
Section
12.03 Entire
Agreement; Amendment.
This
Agreement and the Purchase Agreement constitute the entire agreement between
the
parties with respect to servicing of the Mortgage Loans. This Agreement may
be
amended and any provision hereof waived, but, only in writing signed by the
party against whom such enforcement is sought.
Section
12.04 Execution;
Binding Effect.
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 Sections 8.03 and 8.04, this Agreement shall
inure to the benefit of and be binding upon the Servicer and the Purchaser
and
their respective successors and assigns.
Section
12.05 Headings.
Headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
Section
12.06 Applicable
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies hereunder shall be determined
in
accordance with the substantive laws of the State of New York (without regard
to
conflicts of laws principles), except to the extent preempted by Federal
law.
34
Section
12.07 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties. The duties and responsibilities of the Servicer
shall be rendered by it as an independent contractor and not as an agent of
the
Purchaser. The Servicer shall have full control of all of its acts, doings,
proceedings, relating to or requisite in connection with the discharge of its
duties and responsibilities under this Agreement.
Section
12.08 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
12.09 [Reserved].
Section
12.10 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are integral parts of this Agreement.
Section
12.11 Counterparts.
This
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.
Section
12.12 No
Solicitation.
From
and
after the Closing Date, the Servicer 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 Servicer’s behalf, to personally, by
telephone or mail (via
electronic means or otherwise), solicit the borrower or obligor under any
Mortgage Loan for any purpose whatsoever, including to refinance a Mortgage
Loan, in whole or in part, without (i) the prior written consent of the
Purchaser; or (ii) written notice from the related borrower or obligor under
a
Mortgage Loan of such party’s intention to refinance such Mortgage Loan. It is
understood and agreed that all rights and benefits relating to the solicitation
of any Mortgagors and the attendant rights, title and interest in and to the
list of such Mortgagors and data relating to their Mortgages (including
insurance renewal dates) shall be transferred to the Purchaser pursuant hereto
on the Closing Date and the Servicer shall take no action to undermine these
rights and benefits. Notwithstanding the foregoing, it is understood and agreed
that promotions undertaken by the Servicer or any affiliate of the Servicer
which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 12.12.
35
Section
12.13 Cooperation
of Servicer with a Reconstitution.
The
Servicer and the Purchaser agree that with respect to some or all of the
Mortgage Loans, after the Closing Date, on one or more dates (each a
“Reconstitution
Date”)
at the
Purchaser’s sole option, the Purchaser may effect a sale (each, a “Reconstitution”)
of
some or all of the Mortgage Loans then subject to this Agreement, without
recourse, to:
|
a)
|
Xxxxxx
Mae under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each a “Xxxxxx
Xxx Transfer”);
or
|
|
b)
|
Xxxxxxx
Mac (the “Xxxxxxx
Mac Transfer”);
or
|
|
c)
|
one
or more third party purchasers in one or more Whole Loan Transfers;
or
|
|
d)
|
one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
|
The
Servicer agrees to execute in connection with any Agency Transfer, any and
all
pool purchase contracts, and/or agreements reasonably acceptable to the Servicer
among the Purchaser, the Servicer, Xxxxxx Mae or Xxxxxxx Mac (as the case may
be) and any servicer in connection with a Whole Loan Transfer, an assignment
and
assumption agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the Servicer, and in connection with a
Securitization Transaction, a pooling and servicing agreement or sale and
servicing agreement in form and substance reasonably acceptable to the Servicer
(collectively the agreements referred to herein are designated, the
“Reconstitution
Agreements”).
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Servicer agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; (3) to restate the
representations and warranties set forth in this Agreement as of the settlement
or closing date in connection with such Reconstitution. In that connection,
the
Servicer shall provide to such master servicer or issuer, as the case may be,
and any other participants in such Reconstitution: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Servicer or its affiliates, whether through letters of its auditors and
counsel or otherwise, as the Purchaser or any such other participant shall
request; (ii) such additional reasonable representations, warranties, covenants,
opinions of counsel, letters from auditors, and certificates of public officials
or officers of the Servicer as are believed necessary by the Purchaser or any
such other participant; and (iii) to execute, deliver and satisfy all
conditions set forth in any indemnity agreement required by the Purchaser or
any
such participant mutually agreeable to the Servicer and the Purchaser. The
Servicer shall indemnify the Purchaser, each Affiliate designated by the
Purchaser and each Person who controls the Purchaser or such Affiliate and
hold
each of them harmless from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that each of them may sustain in any
way
related to any information provided by or on behalf of the Servicer regarding
the Servicer, the Servicer’s servicing practices or performance, the Mortgage
Loans or the Underwriting Guidelines set forth in any offering document prepared
in connection with any Reconstitution. Moreover, the Servicer agrees to
cooperate with all reasonable requests made by the Purchaser to effect such
Reconstitution Agreements. But in no event shall the Servicer be obligated
to
any greater extent under a Reconstitution Agreement than it is under this
Agreement. For purposes of this Section, “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.
36
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if this Agreement shall remain in effect with
respect to the Mortgage Loans, shall continue to be serviced in accordance
with
the terms of this Agreement and the Purchase Agreement and with respect thereto
this Agreement shall remain in full force and effect.
With
respect to any Securitization Transaction, the Servicer agrees that on or prior
to March 1st
of each
year, the Servicer shall deliver to the Purchaser and the trustee for such
Securitization Transaction, a certification substantially the form annexed
hereto as Exhibit
7,
executed by the senior officer in charge of servicing at the Servicer, for
inclusion in the Annual Report on Form 10-K to be filed with the Securities
and
Exchange Commission with respect to the trust formed for such Securitization
Transaction. The Servicer shall indemnify and hold harmless the Purchaser,
the
depositor for such Securitization Transaction, the trustee for such
Securitization Transaction 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 Servicer’s
obligations under this paragraph or the Servicer’s negligence, bad faith or
willful misconduct in connection therewith. If the indemnification provided
for
herein is unavailable or insufficient to hold harmless the indemnified party,
then the Servicer agrees that it shall contribute to the amount paid or payable
by such depositor and/or such trustee as a result of the losses, claims, damages
or liabilities of such depositor and/or such trustee in such proportion as
is
appropriate to reflect the relative fault of such depositor or such trustee,
as
the case may be, on the one hand and the Servicer on the other in connection
with a breach of the Servicer’s obligations under this paragraph or the
Servicer’s negligence, bad faith or willful misconduct in connection
therewith.
Section
12.14 Waiver
of Trial by Jury.
THE
SERVICER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR
THE
TRANSACTIONS CONTEMPLATED HEREBY.
37
Section
12.15 Submission
To Jurisdiction; Waivers.
The
Servicer hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER
JURISDICTION.
ARTICLE
XIII
COMPLIANCE
WITH REGULATION AB PROVISIONS
Section 13.01 Intent
of the Parties; Reasonableness.
The
Purchaser and the Servicer acknowledge and agree that the purpose of Article
XIII of this Agreement is to facilitate compliance by the Purchaser and any
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission. Although Regulation AB is applicable by its terms only to
offerings of asset-backed securities that are registered under the Securities
Act, the Servicer acknowledges that investors in privately offered securities
may require that the Purchaser or any Depositor provide comparable disclosure
in
unregistered offerings. References in this Agreement to compliance with
Regulation AB include provision of comparable disclosure in private offerings.
38
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Servicer acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Purchaser or any Depositor in good
faith for delivery of information under these provisions on the basis of
evolving interpretations of Regulation AB. In connection with any Securitization
Transaction, the Servicer shall cooperate fully with the Purchaser to deliver
to
the Purchaser (including any of its assignees or designees) and any Depositor,
any and all statements, reports, certifications, records and any other
information necessary in the good faith determination of the Purchaser or any
Depositor to permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Servicer any Subservicer and the Mortgage Loans, or the servicing of the
Mortgage Loans, reasonably believed by the Purchaser or any Depositor to be
necessary in order to effect such compliance.
Section 13.02 Additional
Representations and Warranties of the Servicer.
(a) The
Servicer shall be deemed to represent to the Purchaser and to any Depositor,
as
of the date on which information is first provided to the Purchaser or any
Depositor under Section 13.03 that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i) the Servicer is not
aware and has not received notice that any default, early amortization or other
performance triggering event has occurred as to any other securitization due
to
any act or failure to act of the Servicer ; (ii) the Servicer has not been
terminated as servicer in a residential mortgage loan securitization, either
due
to a servicing default or to application of a servicing performance test or
trigger; (iii) no material noncompliance with the applicable servicing
criteria with respect to other securitizations of residential mortgage loans
involving the Servicer has been disclosed or reported by the Servicer ;
(iv) no material changes to the Servicer ’s policies or procedures with
respect to the servicing function it will perform under this Agreement and
any
Reconstitution Agreement for mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
related Securitization Transaction; (v) there are no aspects of the
Servicer ’s financial condition that could have a material adverse effect on the
performance by the Servicer of its servicing obligations under this Agreement
or
any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against the
Servicer or any Subservicer; and (vii) there are no affiliations,
relationships or transactions relating to the Servicer or any Subservicer with
respect to any Securitization Transaction and any party thereto identified
by
the related Depositor of a type described in Item 1119 of Regulation
AB.
(b) If
so
requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Section 13.03, the Servicer shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such representation and
warranty is not accurate as of the date of such request, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
39
Section
13.03 Information
to Be Provided by the Servicer .
In
connection with any Securitization Transaction the Servicer shall
(i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a), (c) and (f) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the Servicer ,
provide to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If
so
requested by the Purchaser or any Depositor, the Servicer shall provide such
information regarding each Subservicer, as is requested for the purpose of
compliance with Items 1103(a)(1), 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
| (A) |
[Reserved];
|
| (B) |
[Reserved];
|
| (C) |
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Servicer and each Subservicer;
and
|
| (D) |
a
description of any affiliation or relationship between the Servicer
, each
Subservicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer by the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
|
(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other
material transaction party.
(b) [Reserved].
(c) If
so
requested by the Purchaser or any Depositor, the Servicer shall provide such
information regarding the Servicer , as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a “Servicer”),
as is
requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
40
| (A) |
the
Servicer’s form of organization;
|
| (B) |
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 residential mortgage loans of a 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 or any Depositor,
to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
|
(1) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the related Securitization
Transaction;
(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
| (C) |
a
description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to the
Servicer’s policies or procedures with respect to the servicing function
it will perform under this Agreement and any Reconstitution Agreements
for
mortgage loans of a type similar to the Mortgage
Loans;
|
| (D) |
information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance involving
the Servicer could have a material adverse effect on the performance
by
the Servicer of its servicing obligations under this Agreement or
any
Reconstitution Agreement;
|
41
| (E) |
information
regarding advances made by the Servicer on the Mortgage Loans and
the
Servicer’s overall servicing portfolio of residential mortgage loans for
the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer
of the Servicer to the effect that the Servicer has made all advances
required to be made on residential mortgage loans serviced by it
during
such period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and
the reasons for such failure to
advance;
|
| (F) |
a
description of the Servicer’s processes and procedures designed to address
any special or unique factors involved in servicing loans of a similar
type as the Mortgage Loans;
|
| (G) |
a
description of the Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation
of
mortgaged properties, sale of defaulted mortgage loans or workouts;
and
|
| (H) |
information
as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging,
restructuring, partial payments considered current or other practices
with
respect to delinquency and loss
experience.
|
(d) If
so
requested by the Purchaser or any Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Servicer shall (or shall cause each Subservicer
to)
(i) notify the Purchaser and any Depositor in writing of (A) any
material litigation or governmental proceedings pending against the Servicer
or
any Subservicer and (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Servicer
or any Subservicer and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing
by the requesting party) with respect to such Securitization Transaction, and
(ii) provide to the Purchaser and any Depositor a description of such
proceedings, affiliations or relationships.
(e) As
a
condition to the succession to the Servicer or any SubServicer or subservicer
under this Agreement or any Reconstitution Agreement by any Person (i) into
which the Servicer or such Subservicer may be merged or consolidated, or
(ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Purchaser and any Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
42
(f) In
addition to such information as the Servicer , as servicer, is obligated to
provide pursuant to other provisions of this Agreement, if so requested by
the
Purchaser or any Depositor, the Servicer shall provide such information
regarding the performance or servicing of the Mortgage Loans as is reasonably
required by the Purchaser or any Depositor to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB and to permit
the Purchaser or such Depositor to comply with the provisions of Regulation
AB
relating to Static Pool Information regarding the performance of the Mortgage
Loans on the basis of the Purchaser's or such Depositor's reasonable, good
faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB
(including without limitation as to the format and content of such Static Pool
Information) in connection with any future securitization by the Purchaser
or
any Depositor of mortgage loans of a similar type as the Mortgage Loans. Such
information shall be provided concurrently with the monthly reports otherwise
required to be delivered by the Servicer under this Agreement commencing with
the first such report due in connection with the applicable Securitization
Transaction).
Section
13.04 Servicer
Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Servicer , to the effect that (i) a review of the Servicer ’s activities
during the immediately preceding calendar year (or applicable portion thereof)
and of its performance under this Agreement and any applicable Reconstitution
Agreement during such period has been made under such officer’s supervision, and
(ii) to the best of such officers’ knowledge, based on such review, the
Servicer has fulfilled all of its obligations under this Agreement and any
applicable Reconstitution Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure
to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status
thereof.
Section
13.05 Report
on Assessment of Compliance and Attestation.
(a) On
or
before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Purchaser and any Depositor a report (in form and substance reasonably
satisfactory to the Purchaser and such Depositor) regarding the Servicer’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Purchaser and such Depositor and signed by an authorized officer of the
Servicer, and shall address each of the Servicing Criteria specified on a
certification substantially in the form of Exhibit 8 hereto delivered to the
Purchaser concurrently with the execution of this Agreement;
(ii) deliver
to the Purchaser and any Depositor a report of a registered public accounting
firm reasonably acceptable to the Purchaser and such Depositor that attests
to,
and reports on, the assessment of compliance made by the Servicer and delivered
pursuant to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and
the Exchange Act;
43
(iii) cause
each Subservicer, and each Subcontractor determined by the Company pursuant
to
Section 13.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser and any
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (a) and (b) of this Section; and
(iv) deliver
to the Purchaser, any Depositor and any other Person that will be responsible
for signing the certification (a “Sarbanes
Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a certification in the
form
attached hereto as Exhibit 7.
The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the Commission. Neither
the Purchaser nor any Depositor will request delivery of a certification under
clause (a)(iv) above unless a Depositor is required under the Exchange Act
to
file an annual report on Form 10-K with respect to an issuing entity whose
asset
pool includes Mortgage Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to
Section 13.05(a)(i) shall address each of the Servicing Criteria specified
on a certification substantially in the form of Exhibit 7 hereto delivered
to the Purchaser concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date
of
such appointment. An assessment of compliance provided by a Subcontractor
pursuant to Section 13.05(a)(iii) need not address any elements of the
Servicing Criteria other than those specified by the Servicer pursuant to
Section 13.06.
Section
13.06 Use
of
Subservicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (a) of this Section. The Servicer shall not hire or otherwise
utilize the services of any Subcontractor, and shall not permit any Subservicer
to hire or otherwise utilize the services of any Subcontractor, to fulfill
any
of the obligations of the Servicer under this Agreement or any Reconstitution
Agreement unless the Servicer complies with the provisions of paragraph (b)
of
this Section.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
with respect to the Mortgage Loans without giving the Purchaser or its designee
fifteen (15) calendar days’ advance written notice of the effective date of such
hiring or utilization of a Subservicer, followed by written confirmation of
such
hiring or utilization of a Subservicer on the effective date of such engagement
and indicating the circumstances surrounding such hiring or utilization. Any
notices required by this Section 13.06(a) shall be sent via telecopier or
certified or registered mail to the addresses set forth below: Xxxx X. Xxxxxxxx,
Servicer Oversight Group, 0000 X-Xxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000, Telecopy: 000-000-0000 and emailed to:
xxxxx_xxxxxxxx_xxxxxx@xxxxxxxxxxxxx.xxx, with a copy to Xxxxx Xxxxxx, XxXxx
Xxxxxx LLP, 0 Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Telecopy:
000-000-0000, Email: xxxxxxx@xxxxxxxxxxx.xxx (or such other address as such
Person may otherwise specify to Servicer). The Servicer shall cause any
Subservicer used by the Servicer (or by any Subservicer) for the benefit of
the
Purchaser and any Depositor to comply with the provisions of this Section and
with Sections 13.02, 13.03(c) and (e), 13.04, 13.05 and 13.07 of this Agreement
to the same extent as if such Subservicer were the Servicer , and to provide
the
information required with respect to such Subservicer under Section 13.03(d)
of
this Agreement. The Servicer shall be responsible for obtaining from each
Subservicer and delivering to the Purchaser and any Depositor any servicer
compliance statement required to be delivered by such Subservicer under Section
13.04, any assessment of compliance and attestation required to be delivered
by
such Subservicer under Section 13.05 and any certification required to be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 13.05 as and when required to be
delivered.
44
(b) It
shall
not be necessary for the Servicer to seek the consent of the Purchaser or any
Depositor to the utilization of any Subcontractor. The Servicer shall promptly
upon request provide to the Purchaser and any Depositor (or any designee of
the
Depositor, such as a master servicer or administrator) a written description
(in
form and substance satisfactory to the Purchaser and such Depositor) of the
role
and function of each Subcontractor utilized by the Servicer or any Subservicer,
specifying (i) the identity of each such Subcontractor, (ii) which (if
any) of such Subcontractors are “participating in the servicing function” within
the meaning of Item 1122 of Regulation AB, and (iii) which elements of the
Servicing Criteria will be addressed in assessments of compliance provided
by
each Subcontractor identified pursuant to clause (ii) of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 13.05 and 13.07 of this
Agreement to the same extent as if such Subcontractor were the Servicer . The
Servicer shall be responsible for obtaining from each Subcontractor and
delivering to the Purchaser and any Depositor any assessment of compliance
and
attestation required to be delivered by such Subcontractor under
Section 13.05, in each case as and when required to be
delivered.
Section
13.07 Indemnification;
Remedies.
(a) The
Servicer shall indemnify the Purchaser, each affiliate of the Purchaser, and
each of the following parties participating in a Securitization Transaction:
each sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to such Securitization Transaction; each broker dealer acting as underwriter,
placement agent or initial purchaser, each Person who controls any of such
parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall 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 any of them may sustain arising out of or based upon:
45
(i) (A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Article XIII by or on behalf
of the Servicer , or provided under this Article XIII by or on behalf of any
Subservicer or Subcontractor (collectively, the “Servicer
Information”),
or
(B) the omission or alleged omission to state in the Servicer Information a
material fact required to be stated in the Servicer Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, by way of clarification, that
clause (B) of this paragraph shall be construed solely by reference to the
Servicer Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the Servicer
Information or any portion thereof is presented together with or separately
from
such other information;
(ii) any
failure by the Servicer , any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this Article XIII, including any failure by the Servicer
to identify pursuant to Section 13.06(b) any Subcontractor “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB;
or
(iii) any
breach by the Servicer of a representation or warranty set forth in
Section 13.02(a) or in a writing furnished pursuant to
Section 13.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not cured
by such closing date, or any breach by the Servicer of a representation or
warranty in a writing furnished pursuant to Section 13.02(b) to the extent
made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Servicer shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Servicer, any Subservicer
or
any Subcontractor.
46
(b) (i) Any
failure by the Seller, Servicer, any Subservicer or any Subcontractor to deliver
any information, report, certification, accountants’ letter or other material
when and as required under this Article XIII or under Section 34 of the
Purchase Agreement, or any breach by the Servicer of a representation or
warranty set forth in Section 13.02(a) or in a writing furnished pursuant
to Section 13.02(b) or any breach by the Seller of a representation or
warranty set forth in Section 34.02(a) of the Purchase Agreement or in a
writing furnished pursuant to Section 34.02(b) of the Purchase Agreement
and made as of a date prior to the closing date of the related Securitization
Transaction, to the extent that such breach is not cured by such closing date,
or any breach by the Servicer of a representation or warranty in a writing
furnished pursuant to Section 13.02(b) or any breach by the Seller of a
representation or warranty in a writing furnished pursuant to
Section 34.02(b) of the Purchase Agreement to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Servicer under this Agreement and/or any applicable
Reconstitution Agreement without payment (notwithstanding anything in this
Agreement or any applicable Reconstitution Agreement to the contrary) of any
compensation to the Servicer ; provided that to the extent that any provision
of
this Agreement and/or any applicable Reconstitution Agreement expressly provides
for the survival of certain rights or obligations following termination of
the
Servicer as servicer, such provision shall be given effect.
(ii) Any
failure by the Servicer , any Subservicer or any Subcontractor to deliver
any
information, report, certification or accountants’ letter when and as required
under Section 13.04 or 13.05, including (except as provided below) any
failure by the Servicer to identify pursuant to Section 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default
with
respect to the Servicer under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable, in
its
sole discretion to terminate the rights and obligations of the Servicer under
this Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any compensation
to the Servicer ; provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution Agreement expressly provides
for
the survival of certain rights or obligations following termination of the
Servicer as servicer, such provision shall be given effect.
Neither
the Purchaser nor any Depositor shall be entitled to terminate the rights and
obligations of the Company pursuant to this subparagraph (b)(ii) if a failure
of
the Company to identify a Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB was attributable
solely to the role or functions of such Subcontractor with respect to mortgage
loans other than the Mortgage Loans.
47
(iii)
The
Servicer shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable,
for all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of
the
Servicer and the transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this paragraph shall not limit whatever rights
the
Purchaser or any Depositor may have under other provisions of this Agreement
and/or any applicable Reconstitution Agreement or otherwise, whether
in equity
or at law, such as an action for damages, specific performance or injunctive
relief.
[Signature
Page Follows]
48
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal as of
the
date and year first above written.
XXXXXX
XXXXXXX
MORTGAGE CAPITAL INC.
(the
Purchaser)
By:
_______________________________
Name:
Title:
INDYMAC
BANK,
F.S.B.
(the
Servicer)
By:
_______________________________
Name:
Title:
EXHIBIT
1
REMITTANCE
REPORT
Exh.
1-1
EXHIBIT
2
CUSTODIAL
ACCOUNT CERTIFICATION
_______
__,
200_
The
Servicer hereby certifies that it has established the account described below
as
a Custodial Account pursuant to Section 2.04 of the Servicing Agreement, dated
as of September 1, 2006, Conventional Fixed Rate Mortgage Loans.
| Title of Account: |
“IndyMac
Bank, F.S.B.
in
trust for Xxxxxx Xxxxxxx Mortgage Capital Inc., owner of Conventional
Fixed Rate Residential Mortgage Loans, and various
Mortgagors.”
|
Account
Number: _____________________
Address
of office or branch
of
the
Servicer at
which
Account is maintained: ______________________________
INDYMAC
BANK,
F.S.B.,
Servicer
By:___________________________
Name:_________________________
Title:________________________
Date:_________________________
Exh.
2-1
EXHIBIT
3
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_______
__,
200_
|
To:
|
___________________________
|
|
___________________________
|
___________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of September 1, 2006, (the
“Agreement”),
we
hereby authorize and request you to establish an account, as a Custodial Account
pursuant to Section 2.04 of the Agreement, to be designated “IndyMac Bank,
F.S.B.
in trust
for Xxxxxx Xxxxxxx Mortgage Capital Inc., owner of Residential Mortgage Loans,
and various Mortgagors.”
All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Servicer. 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.,
Servicer
By:___________________________
Name:_________________________
Title:________________________
Date:_________________________
Exh.
3-1
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:_________________________
Exh.
3-2
EXHIBIT
4
ESCROW
ACCOUNT CERTIFICATION
_________
___,
200_
________________________
hereby certifies that it has established the account described below as an
Escrow Account pursuant to Section 2.06 of the Servicing Agreement, dated as
of
September 1, 2006, Residential Mortgage Loans.
| Title of Account: |
“IndyMac
Bank, F.S.B., as
servicer, in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc., owner
of
Residential Mortgage Loans, and various Mortgagors.”
|
Account
Number: ___________________
Address
of office or branch
of
the
Servicer at
which
Account is maintained: _________________________
|
_________________________
_________________________
_________________________
INDYMAC
BANK, F.S.B.,
Servicer
By:___________________________
Name:_________________________
Title:__________________________
|
Exh.
4-1
EXHIBIT
5
ESCROW
ACCOUNT LETTER AGREEMENT
_______
___,
200_
To: _____________________________
_____________________________
_____________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of September 1, 2006,
Conventional Fixed Rate Residential Mortgage Loans (the “Agreement”),
we
hereby authorize and request you to establish an account, as an Escrow Account
pursuant to Section 2.06 of the Agreement, to be designated as “IndyMac Bank,
F.S.B., as
servicer, in trust for Xxxxxx Xxxxxxx Mortgage Capital Inc., owner of
Conventional Fixed Rate Residential Mortgage Loans, and various
Mortgagors.”
All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Servicer. 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.,
Servicer
By:_______________________________
Name:_____________________________
Title:______________________________
Date:______________________________
|
:
Exh.
5-1
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:______________________________
|
Exh.
5-2
EXHIBIT
6
DELINQUENCY
COLLECTION POLICIES AND PROCEDURES
Exh.
6-1
EXHIBIT
7
CERTIFICATION
| Re: |
The
[ ] agreement dated as of [ ], 200[ ] (the “Agreement”),
among [IDENTIFY PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification,
that:
First, I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance
Statement”),
the
report on assessment of the Company’s compliance with the servicing criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing
Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange
Act”)
and
Item 1122 of Regulation AB (the “Servicing
Assessment”),
the
registered public accounting firm’s attestation report provided in accordance
with Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the “Attestation
Report”),
and
all servicing reports, officer’s certificates and other information relating to
the servicing of the Mortgage Loans by the Company during 200[ ] that were
delivered by the Company to the [Depositor] [Master Servicer] [Securities
Administrator] [Trustee] pursuant to the Agreement (collectively, the
“Company
Servicing Information”);
Second, Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
Third, Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee];
Fourth, I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Company has fulfilled its obligations under the Agreement, in all material
respects; and
Exh.
7-1
Fifth, The
Compliance Statement required to be delivered by the Company pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the [Depositor] [Master Servicer]. Any material
instances of noncompliance described in such reports have been disclosed
to the
[Depositor] [Master Servicer]. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
Date: _________________________
_______________________________
[Signature]
[Title]
Xxx.
0-0
XXXXXXX
0
XXXXXXXXX
XXXXXXXX TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [IndyMac Bank, F.S.B] [Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
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.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
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.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
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.
|
Xxx.
0-0
|
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iv)
|
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.
|
|
|
1122(d)(2)(v)
|
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.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
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.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
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
Servicer.
|
Xxx.
0-0
|
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
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.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’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.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
Xxx.
0-0
|
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vii)
|
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.
|
|
|
1122(d)(4)(viii)
|
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).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
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
loans, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
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.
|
|
|
1122(d)(4)(xii)
|
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.
|
Xxx.
0-0
|
Xxxxxxxxx
Xxxxxxxx
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xiii)
|
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.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
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.
|
|
[INDYMAC
BANK, F.S.B] [SUBSERVICER]
Date:______________________________
|
Exh.
8-5
