RECONSTITUTED SERVICING AGREEMENT
This
RECONSTITUTED SERVICING AGREEMENT (this “Agreement”), entered into as of the 1st
day of February, 2007, by and between XXXXXX BROTHERS HOLDINGS INC., a Delaware
corporation (the “Seller” or “Xxxxxx Brothers Holdings”), INDYMAC BANK, F.S.B.,
a Federal Savings Bank (the “Servicer”), and acknowledged by AURORA LOAN
SERVICES LLC, a Delaware limited liability company (“Aurora”), and LASALLE BANK
NATIONAL ASSOCIATION, a national banking association,
as
Trustee under the Trust Agreement defined below
(the
“Trustee”), recites and provides as follows:
RECITALS
WHEREAS,
Xxxxxx Brothers Bank, FSB (the “Bank”), acquired certain fixed and adjustable
rate, conventional, first lien, residential mortgage loans from the Servicer
pursuant to the Seller's Warranties and Servicing Agreement between the Bank
and
the Servicer dated as of July 1, 2003 and amended as of December 29, 2004 and
June 2006 (collectively
the “SWSA”) attached hereto as Exhibit B.
WHEREAS,
pursuant to an Assignment and Assumption Agreement, dated February 1, 2007
(the
“Assignment and Assumption Agreement”) annexed as Exhibit C hereto, the Seller
acquired from the Bank all of the Bank’s right, title and interest in and to the
mortgage loans currently serviced under the SWSA and assumed for the benefit
of
each of the Servicer and the Bank the rights and obligations of the Bank as
owner of such mortgage loans pursuant to the SWSA.
WHEREAS,
the Seller has conveyed the mortgage loans identified on Exhibit D hereto (the
“Serviced Mortgage Loans”) to Structured Asset Securities Corporation, a
Delaware special purpose corporation (“SASCO”), which in turn has conveyed the
Serviced Mortgage Loans to the Trustee, pursuant to a trust agreement, dated
as
of February 1, 2007 (the “Trust Agreement”), among the Trustee, Aurora, as
master servicer (“Aurora,” and, together with any successor master servicer
appointed pursuant to the provisions of the Trust Agreement, the “Master
Servicer”), and SASCO.
WHEREAS,
the Serviced Mortgage Loans are currently being serviced by the Servicer
pursuant to the SWSA.
WHEREAS,
the Seller desires that the Servicer continue to service the Serviced Mortgage
Loans, and the Servicer has agreed to do so, subject to the rights of the Seller
and the Master Servicer to terminate the rights and obligations of the Servicer
hereunder as set forth herein and to the other conditions set forth
herein.
WHEREAS,
the Seller and the Servicer agree that the provisions of the SWSA shall apply
to
the Serviced Mortgage Loans, but only to the extent provided herein and that
this Agreement shall govern the Serviced Mortgage Loans for so long as such
Serviced Mortgage Loans remain subject to the provisions of the Trust
Agreement.
WHEREAS,
the Master Servicer and any successor master servicer shall be obligated, among
other things, to supervise the servicing of the Serviced Mortgage Loans on
behalf of the Trustee, and shall have the right, under certain circumstances,
to
terminate the rights and obligations of the Servicer under this
Agreement.
WHEREAS,
the Seller and the Servicer intend that each of the Master Servicer and the
Trustee is an intended third party beneficiary of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth
and
for other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the Seller and the Servicer hereby agree as
follows:
AGREEMENT
1. Definitions.
Capitalized terms used and not defined in this Agreement, including Exhibit
A
hereto and any provisions of the SWSA incorporated by reference herein
(regardless of whether such terms are defined in the SWSA), shall have the
meanings ascribed to such terms in the Trust Agreement.
2. Custodianship.
The
parties hereto acknowledge that Deutsche Bank National Trust Company will act
as
custodian of the Servicing Files for the Trustee pursuant to a Custodial
Agreement, dated February 1, 2007, between Deutsche Bank National Trust Company
and the Trustee.
3. Servicing.
The
Servicer agrees, with respect to the Serviced Mortgage Loans, to perform and
observe the duties, responsibilities and obligations that are to be performed
and observed under the provisions of the SWSA, except as otherwise provided
herein and on Exhibit A hereto, and that the provisions of the SWSA, as so
modified, are and shall be a part of this Agreement to the same extent as if
set
forth herein in full.
4. Trust
Cut-off Date.
The
parties hereto acknowledge that by operation of Section 4.05 and Section 5.01
of
the SWSA, the remittance on March 18, 2007 to the Trust Fund is to include
principal due after February 1, 2007 (the “Trust Cut-off Date”) plus interest,
at the Mortgage Loan Remittance Rate collected during the related Due Period
exclusive of any portion thereof allocable to a period prior to the Trust
Cut-off Date, with the adjustments specified in clauses (b), (c), (d) and (e)
of
Section 5.01 of the SWSA.
5. Master
Servicing; Termination of Servicer.
The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Master Servicer, which Master Servicer shall be obligated
to
ensure that the Servicer services the Serviced Mortgage Loans in accordance
with
the provisions of this Agreement. The Master Servicer, acting on behalf of
the
Trustee and the LXS 2007-3 Trust Fund (the “Trust Fund”) created pursuant to the
Trust Agreement, shall have the same rights as the Seller under the SWSA to
enforce the obligations of the Servicer under the SWSA and the term “Purchaser”
as used in the SWSA in connection with any rights of the Purchaser shall refer
to the Trust Fund or, as the context requires, the Master Servicer acting in
its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit
A
hereto. The Master Servicer shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Section 10.01 of the SWSA.
Notwithstanding anything herein to the contrary, in no event shall the Master
Servicer assume any of the obligations of the Seller under the SWSA and in
connection with the performance of the Master Servicer’s duties hereunder the
parties and other signatories hereto agree that the Master Servicer shall be
entitled to all of the rights, protections and limitations of liability afforded
to the Master Servicer under the Trust Agreement.
6. No
Representations.
Neither
the Servicer nor the Master Servicer shall be obligated or required to make
any
representations and warranties regarding the characteristics of the Serviced
Mortgage Loans (other than those representations and warranties made by the
Servicer in Section 3.02 of the SWSA hereby restated as of the date of this
Agreement) in connection with the transactions contemplated by the Trust
Agreement and issuance of the Certificates issued pursuant thereto.
7. Notices.
All
notices and communications between or among the parties hereto (including any
third party beneficiary thereof) or required to be provided to the Trustee
shall
be in writing and shall be deemed received or given when mailed first-class
mail, postage prepaid, addressed to each other party at its address specified
below or, if sent by facsimile or electronic mail, when facsimile or electronic
confirmation of receipt by the recipient is received by the sender of such
notice. Each party may designate to the other parties in writing, from time
to
time, other addresses to which notices and communications hereunder shall be
sent.
All
notices required to be delivered to the Master Servicer under this Agreement
shall be delivered to the Master Servicer at the following address:
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Telephone:
(000)-000-0000
Telecopier:
(000) 000-0000
All
remittances required to be made to the Master Servicer under this Agreement
shall be made on a scheduled/scheduled basis to the following wire
account:
Bank
of
New York
ABA#:
000-000-000
Account
Name: Aurora
Loan Services LLC,
Master Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-3
All
notices required to be delivered to the Trustee hereunder shall be delivered
to
the Trustee at the following address:
LaSalle
Bank
National Association
000
X.
XxXxxxx Xx., Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Global Securities and Trust Services (LXS 2007-3)
Telephone:
000-000-0000
Facsimile:
000-000-0000
All
notices required to be delivered to the Seller hereunder shall be delivered
to
the Seller, at the following address:
Xxxxxx
Brothers Holdings Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxx
Telephone:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxx.xxx
mailto:xxxxxxx@xxxxxx.xxx
All
notices required to be delivered to the Servicer hereunder shall be delivered
to
its office at the address for notices as set forth in the SWSA.
8. Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK, NOTWITHSTANDING NEW YORK OR OTHER CHOICE OF LAW RULES
TO
THE CONTRARY.
9. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original, but all of which counterparts shall
together constitute but one and the same instrument.
[SIGNATURE
PAGES IMMEDIATELY FOLLOW]
Executed
as of the day and year first above written.
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XXXXXX
BROTHERS HOLDINGS INC.,
as
Seller
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| By: | /s/ Xxxxxxx Xxxxxxxx | |
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Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
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INDYMAC
BANK, F.S.B.,
as
Servicer
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| By: | /s/ Xxxx Xxxxxxxx | |
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Name:
Xxxx Xxxxxxxx
Title: Vice
President
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Acknowledged:
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AURORA
LOAN SERVICES LLC,
as
Master Servicer
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| By: | /s/ Xxxxx X. Xxxxxxx | |
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Name:
Xxxxx X. Xxxxxxx
Title:
Senior Vice President
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LASALLE
BANK NATIONAL ASSOCIATION,
as
Trustee and not in its individual capacity
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| By: | /s/ Xxxx Xxxxxxxx | |
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Name:
Xxxx
Xxxxxxxx
Title:
Assistant
Vice President
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EXHIBIT
A
Modifications
to the SWSA
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1.
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Unless
otherwise specified herein, any provisions of the SWSA, including
definitions, relating to (i) representations and warranties relating
to
the Mortgage Loans and not relating to the servicing of the Mortgage
Loans, (ii) Mortgage Loan repurchase obligations, (iii) Whole Loan
and
Pass-Through Transfers and Reconstitution, and (iv) Assignments of
Mortgage, shall be disregarded for purposes relating to this Agreement.
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2.
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The
definition of “Determination Date” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Determination
Date:
With
respect to each Remittance Date, the 15th day of the month in which such
Remittance Date occurs, or, if such 15th day is not a Business Day, the
succeeding Business Day.
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3.
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The
definition of “Eligible Investments” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed as to timely payment of
principal and interest by, the United States of America or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America (“Direct
Obligations”);
(ii) federal
funds, or demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company (including
U.S. subsidiaries of foreign depositories and the Trustee or any agent of the
Trustee, acting in its respective commercial capacity) incorporated or organized
under the laws of the United States of America or any state thereof and subject
to supervision and examination by federal or state banking authorities, so
long
as at the time of investment or the contractual commitment providing for such
investment the commercial paper or other short-term debt obligations of such
depository institution or trust company (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt or deposit obligations
of
such holding company or deposit institution, as the case may be) have been
rated
by each Rating Agency in its highest short-term rating category or one of its
two highest long-term rating categories;
(iii) repurchase
agreements collateralized by Direct Obligations or securities guaranteed by
Xxxxxx Mae, Xxxxxx Xxx or Xxxxxxx Mac with any registered broker/dealer subject
to Securities Investors’ Protection Corporation jurisdiction or any commercial
bank insured by the FDIC, if such broker/dealer or bank has an uninsured,
unsecured and unguaranteed obligation rated by each Rating Agency in its highest
short-term rating category;
A-1
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which have
a
credit rating from each Rating Agency, at the time of investment or the
contractual commitment providing for such investment, at least equal to one
of
the two highest long-term credit rating categories of each Rating Agency;
provided, however, that securities issued by any particular corporation will
not
be Eligible Investments to the extent that investment therein will cause the
then outstanding principal amount of securities issued by such corporation
and
held as part of the Trust Fund to exceed 20% of the sum of the aggregate
principal balance of the Mortgage Loans; provided, further, that such securities
will not be Eligible Investments if they are published as being under review
with negative implications from any Rating Agency;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 180 days after the date of issuance thereof) rated by each Rating Agency
in
its highest short-term rating category;
(vi) a
Qualified GIC;
(vii) certificates
or receipts representing direct ownership interests in future interest or
principal payments on obligations of the United States of America or its
agencies or instrumentalities (which obligations are backed by the full faith
and credit of the United States of America) held by a custodian in safekeeping
on behalf of the holders of such receipts; and
(viii) any
other
demand, money market, common trust fund or time deposit or obligation, or
interest-bearing or other security or investment, (A) rated in the highest
rating category by each Rating Agency or (B) that would not adversely affect
the
then current rating by each Rating Agency of any of the Certificates. Such
investments in this subsection (viii) may include money market mutual funds
or
common trust funds, including any fund for which the Trustee, the Master
Servicer or an affiliate thereof serves as an investment advisor, administrator,
shareholder servicing agent, and/or custodian or subcustodian, notwithstanding
that (x) the Trustee, the Master Servicer or an affiliate thereof charges and
collects fees and expenses from such funds for services rendered, (y) the
Trustee, the Master Servicer or an affiliate thereof charges and collects fees
and expenses for services rendered pursuant to this Agreement, and (z) services
performed for such funds and pursuant to this Agreement may converge at any
time; provided, however, that no such instrument shall be an Eligible Investment
if such instrument evidences either (i) a right to receive only interest
payments with respect to the obligations underlying such instrument, or
(ii) both principal and interest payments derived from obligations
underlying such instrument and the principal and interest payments with respect
to such instrument provide a yield to maturity of greater than 120% of the
yield
to maturity at par of such underlying obligations.
A-2
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4.
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A
definition of “Xxxxxx Mae” is hereby added to Article I to immediately
follow the definition of “Xxxxxxx Mac,” to read as
follows:
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Xxxxxx
Mae:
The
Government National Mortgage Association, or any successor thereto.
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5.
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The
definition of “Mortgage Loan” is hereby amended and restated in its
entirety to read as follows:
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Mortgage
Loan:
An
individual servicing retained Mortgage Loan which has been purchased from the
Servicer by Xxxxxx Brothers Bank, FSB and is subject to this Agreement being
identified on the Mortgage Loan Schedule to this Agreement, which Mortgage
Loan
includes without limitation the Mortgage Loan documents, the monthly reports,
Principal Prepayments, Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds and all other rights, benefits, proceeds
and
obligations arising from or in connection with such Mortgage Loan.
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6.
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The
definition of “Mortgage Loan Schedule” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Mortgage
Loan Schedule:
The
schedule of Mortgage Loans attached as Exhibit C to this Agreement setting
forth
certain information with respect to the Mortgage Loans purchased from the
Servicer by Xxxxxx Brothers Bank, FSB pursuant to the Purchase
Agreement.
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7.
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The
definition of “Qualified Depository” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Qualified
Depository:
Any of
(i) a federal or state-chartered depository institution or trust company the
accounts of which are insured by the FDIC and whose commercial paper, short-term
debt obligations or other short-term deposits are rated at least “A-1+” by
Standard & Poor’s, or whose long-term unsecured debt obligations are rated
at least “AA-” by Standard & Poor’s if the amounts on deposit are to be held
in the account for no more than 365 days or whose commercial paper, short-term
debt obligations, demand deposits, or other short-term deposits are rated at
least “A-2” by Standard & Poor’s if the amounts on deposit are to be held in
the account for no more than 30 days and are not intended to be used as credit
enhancement , or (ii) the corporate trust department of a federal or
state-chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations, which has corporate trust powers, acting in its fiduciary capacity,
or (iii) Xxxxxx Brothers Bank, F.S.B., a federal savings bank.
A-3
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8.
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A
new definition of “Qualified GIC” is hereby added to Article I to
immediately follow the definition of “Qualified Depository”, to read as
follows:
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Qualified
GIC:
A
guaranteed investment contract or surety bond providing for the investment
of
funds in the Custodial Account and insuring a minimum, fixed or floating rate
of
return on investments of such funds, which contract or surety bond
shall:
(a) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long-term debt, whose claims paying ability is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(b) provide
that the Servicer may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other
Person;
(c) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Servicer, the Servicer shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Trustee;
(d) provide
that the Servicer’s interest therein shall be transferable to any successor
Servicer or the Master Servicer hereunder; and
(e) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Custodial Account, as the case may be, not later than the Business Day
prior to any Determination Date.
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9.
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A
new definition of “Realized Loss” is added to Article I immediately
following the definition of “Rating Agency” to read as
follows:
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Realized
Loss:
With
respect to each Liquidated Mortgage Loan (as defined in the Trust Agreement),
an
amount equal to (i) the unpaid principal balance of such Mortgage Loan as of
the
date of liquidation, minus (ii) Liquidation Proceeds received, to the extent
allocable to principal, net of amounts that are reimbursable therefrom to the
Master Servicer or the Company with respect to such Mortgage Loan (other than
Monthly Advances of principal) including expenses of liquidation.
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10.
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The
definition of “Regulation AB” in Article I is hereby amended and restated
in its entirety to read as follows:
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A-4
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.
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11.
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The
definition of “Servicing Fee Rate” in Article I is hereby amended and
restated in its entirety to read as
follows:
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Servicing
Fee Rate:
0.250%
per annum.
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12.
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The
parties acknowledge that the fourth paragraph of Section 2.02 (Books
and
Records; Transfers of Mortgage Loans) shall be inapplicable to this
Agreement.
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13.
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The
parties acknowledge that Section 2.03 (Delivery of Documents) shall
be
superseded by the provisions of the Custodial
Agreement.
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14.
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Section
3.01(c) (No Conflicts) is hereby amended by deleting the words “the
acquisition of the Mortgage Loans by the Company, the sale of the
Mortgage
Loans to the Purchaser”.
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15.
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Section
3.01(f) (Ability to Perform) is hereby amended by deleting the second
and
third sentences thereof.
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16.
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Section
3.01(h) (No Consent Required) is hereby amended by deleting the words
“or
the sale of the Mortgage Loans”.
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17.
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Section
3.01(i) (Selection Process), Section 3.01(l) (Sale Treatment), and
Section
3.01(n) (No Brokers’ Fees) shall be inapplicable to this
Agreement.
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18.
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A
new Section 3.01(p) is hereby added to read as
follows:
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Additional
Representations and Warranties of the Company.
Except
as disclosed in writing to the Seller, the Master Servicer, the Depositor and
the Trustee prior to the Closing Date: (i) the Company 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 Company; (ii) the Company 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 Company as servicer has been disclosed or reported by the Company; (iv)
no
material changes to the Company's policies or procedures with respect to the
servicing function it will perform under this Agreement for mortgage loans
of a
type similar to the Mortgage Loans have occurred during the three-year period
immediately preceding the Closing Date; (v) there are no aspects of the
Company's financial condition that could have a material adverse effect on
the
performance by the Company of its servicing obligations under this Agreement
and
(vi) there are no affiliations, relationships or transactions relating to the
Company or any Subservicer with any party listed on Exhibit F
hereto."
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19.
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Four
new paragraphs are hereby added at the end of Section 3.01 (Company
Representations and Warranties) to read as
follows:
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It
is
understood and agreed that the representations and warranties set forth in
Section 3.01 (a) through (h) and (k) are hereby restated as of the Closing
Date
and shall survive the engagement of the Company to perform the servicing
responsibilities hereunder and the delivery of the Servicing Files to the
Company and shall inure to the benefit of the Trustee, the Trust Fund and the
Master Servicer. Upon discovery by either the Company, the Master Servicer
or
the Trustee of a breach of any of the foregoing representations and warranties
which materially and adversely affects the ability of the Company to perform
its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged Property or
the
priority of the security interest on such Mortgaged Property or the interest
of
the Trustee or the Trust Fund, the party discovering such breach shall give
prompt written notice to the other.
Within
60
days of the earlier of either discovery by or notice to the Company of any
breach of a representation or warranty set forth in Section 3.01 which
materially and adversely affects the ability of the Company to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Loans, the Mortgaged Property or the priority
of the security interest on such Mortgaged Property, the Company shall use
its
best efforts promptly to cure such breach in all material respects and, if
such
breach cannot be cured, the Company shall, at the Master Servicer’s option,
assign the Company’s rights and obligations under this Agreement (or respecting
the affected Loans) to a successor servicer selected by the Master Servicer
with
the prior consent and approval of the Trustee. Such assignment shall be made
in
accordance with Section 12.01.
In
addition, the Company shall indemnify (from its own funds) the Trustee, the
Trust Fund and Master Servicer and hold each of them harmless against any costs
resulting from any claim, demand, defense or assertion based on or grounded
upon, or resulting from, a breach of the Company’s representations and
warranties contained in this Agreement. It is understood and agreed that the
remedies set forth in this Section 3.01 constitute the sole remedies of the
Master Servicer, the Trust Fund and the Trustee respecting a breach of the
foregoing representations and warranties.
Any
cause
of action against the Company relating to or arising out of the breach of any
representations and warranties made in Section 3.01 shall accrue upon (i)
discovery of such breach by the Company or notice thereof by the Trustee or
Master Servicer to the Company, (ii) failure by the Company to cure such breach
within the applicable cure period, and (iii) demand upon the Company by the
Trustee or the Master Servicer for compliance with this Agreement.
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20.
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Section
4.01 (Company to Act as Servicer) is hereby amended as
follows:
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(i) by
deleting the first, second, third and fourth sentences of the second paragraph
of such section and replacing it with the following:
Consistent
with the terms of this Agreement, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of any such term or in
any
manner grant indulgence to any Mortgagor if in the Company’s reasonable and
prudent determination such waiver, modification, postponement or indulgence
is
not materially adverse to the Purchaser, provided, however, that unless the
Mortgagor is in default with respect to the Mortgage Loan or such default is,
in
the judgment of the Company, imminent, the Company shall not permit any
modification with respect to any Mortgage Loan that would change the Mortgage
Interest Rate, forgive the payment of principal or interest, reduce or increase
the outstanding principal balance (except for actual payments of principal)
or
change the final maturity date on such Mortgage Loan. Without limiting the
generality of the foregoing, the Company shall continue, and is hereby
authorized and empowered, to execute and deliver on behalf of itself and the
Purchasers, all instruments of satisfaction or cancellation, or of partial
or
full release, discharge and all other comparable instruments, with respect
to
the Mortgage Loans and with respect to the Mortgaged Properties; provided,
further, that upon the full release or discharge, the Company shall notify
the
related Custodian of the related Mortgage Loan of such full release or
discharge.
(ii) by
adding
the following to the end of the second paragraph of such section:
Promptly
after the execution of any assumption, modification, consolidation or extension
of any Mortgage Loan, the Company shall forward to the Master Servicer copies
of
any documents evidencing such assumption, modification, consolidation or
extension. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not make or permit any modification, waiver or amendment
of
any term of any Mortgage Loan that would cause any REMIC created under the
Trust
Agreement to fail to qualify as a REMIC or result in the imposition of any
tax
under Section 860F(a) or Section 860G(d) of the Code.
|
21.
|
Section
4.04 (Establishment of and Deposits to Custodial Account) is hereby
amended as follows:
|
(i) by
replacing the words “in trust for the Purchaser of Conventional Residential
Conventional Residential Fixed and Adjustable rate Mortgage Loans, Group 2005-1
and various Mortgagors” in the fourth, fifth and sixth lines of the first
sentence of the first paragraph with the words “in trust for LXS 2007-3 Trust
Fund”.
A-7
(ii) by
replacing the words “on a daily basis” in the first sentence of the second
paragraph with the words “within two (2) Business Days of receipt”.
|
22.
|
Section
4.05 (Permitted Withdrawals From Custodial Account) is hereby amended
by
replacing the words from the word “Purchaser” in the sixth line of clause
(ii) to the end of such clause (ii) with the following:
|
the
Trust
Fund; provided however, that in the event that the Company determines in good
faith that any unreimbursed Monthly Advances will not be recoverable from
amounts representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Monthly Advance was
made or from Liquidation Proceeds or Insurance Proceeds with respect to such
Mortgage Loan, the Company may reimburse itself for such amounts from the
Custodial Account, it being understood, in the case of any such reimbursement,
that the Company’s right thereto shall be prior to the rights of the Trust
Fund;
|
23.
|
Section
4.06 (Establishment of and Deposits to Escrow Account) shall be amended
by
deleting the words “Purchaser of Conventional Residential Conventional
Residential Fixed and Adjustable rate Mortgage Loans, Group 2005-1
and
various Mortgagors” in the fourth, fifth and sixth lines of the first
sentence of the first paragraph, and replacing it with the
following:
|
in
trust
for LXS 2007-3 Trust Fund and various Mortgagors”.
|
24.
|
Section
4.16 (Title, Management and Disposition of REO Property) is hereby
amended
by (i) replacing the reference to “one year” in the seventh line of the
third paragraph thereof with “three years”, (ii) adding two new paragraphs
after the fourth paragraph thereof to read as
follows:
|
In
the
event that the Trust Fund acquires any REO Property in connection with a default
or imminent default on a Mortgage Loan, the Company shall dispose of such REO
Property not later than the end of the third taxable year after the year of
its
acquisition by the Trust Fund unless the Company has applied for and received
a
grant of extension from the Internal Revenue Service to the effect that, under
the REMIC Provisions and any relevant proposed legislation and under applicable
state law, the applicable Trust REMIC may hold REO Property for a longer period
without adversely affecting the REMIC status of such REMIC or causing the
imposition of a federal or state tax upon such REMIC. If the Company has
received such an extension, then the Company shall provide a copy of same to
the
Trustee and Master Servicer and shall continue to attempt to sell the REO
Property for its fair market value for such period longer than three years
as
such extension permits (the “Extended Period”). If the Company has not received
such an extension and the Company is unable to sell the REO Property within
the
period ending 3 months before the end of such third taxable year after its
acquisition by the Trust Fund or if the Company has received such an extension,
and the Company is unable to sell the REO Property within the period ending
three months before the close of the Extended Period, the Company shall, before
the end of the three year period or the Extended Period, as applicable, (i)
purchase such REO Property at a price equal to the REO Property’s fair market
value or (ii) auction the REO Property to the highest bidder (which may be
the
Company) in an auction reasonably designed to produce a fair price prior to
the
expiration of the three-year period or the Extended Period, as the case may
be.
The Trustee shall sign any document prepared by and furnished by the Servicer
or
take any other action reasonably requested by the Company at the Company’s
expense, which would enable the Company, on behalf of the Trust Fund, to request
such grant of extension.
A-8
Notwithstanding
any other provisions of this Agreement, no REO Property acquired by the Trust
Fund shall be rented (or allowed to continue to be rented) or otherwise used
by
or on behalf of the Trust Fund in such a manner or pursuant to any terms that
would: (i) cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the income earned from
such REO Property, including any taxes imposed by reason of Sections 860F or
860G(c) of the Code, unless the Company has agreed to indemnify and hold
harmless the Trustee and the Trust Fund with respect to the imposition of any
such taxes.
(iii)
replacing the word “advances” in the sixth line of the fifth paragraph thereof
with “Monthly Advances”, and (iv) adding the following to the end of such
Section:
Prior
to
acceptance by the Company of an offer to sell any REO Property, the Company
shall notify the Master Servicer of such offer in writing which notification
shall set forth all material terms of said offer (each a “Notice of Sale”). The
Master Servicer shall be deemed to have approved the sale of any REO Property
unless the Master Servicer notifies the Company in writing, within five (5)
days
after its receipt of the related Notice of Sale, that it disapproves of the
related sale, in which case the Company shall not proceed with such
sale.
|
25.
|
Section
5.01 (Remittances) is hereby amended by replacing the word “second” in the
second paragraph of such Section with the word “first”, and is further
amended by adding the following after the second paragraph of such
Section:
|
All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
Bank
of
New York
ABA#:
000-000-000
Account
Name: Aurora Loan Services LLC,
Master Servicing Payment Clearing Account
Account
Number: 8900620730
Beneficiary:
Aurora Loan Services LLC
For
further credit to: LXS 2007-3
A-9
|
26.
|
Section
5.02 (Statements to Purchaser) is hereby amended and restated in
its
entirety to read as follows:
|
Section
5.02 Statements
to Master Servicer.
(a)
The
Company shall deliver or cause to be delivered to the Master Servicer executed
copies of the custodial and escrow account letter agreements pursuant to
Sections 4.04 and 4.06 within 30 days of the Closing Date.
(b)
Not
later than the tenth calendar day of each month, the Company shall furnish
to
the Master Servicer an electronic file providing loan level accounting data
for
the period ending on the last Business Day of the preceding month in a format
mutually agreed to between the Company and the Master Servicer.
(c)
The
Company shall promptly notify the Trustee, the Master Servicer and the Depositor
(i) of any legal proceedings pending against the Company of the type described
in Item 1117 (§ 229.1117) of Regulation AB and (ii) of any affiliation or
relationship (of a type describe in Item 1119 of Regulation AB) between the
Company, each third-party originator, each subservicers “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB and any of
the parties listed on Exhibit F hereto, an provided a description of such
affiliation or relationship.
If
so
requested by the Trustee, the Master Servicer or the Depositor on any date
following the date on which information was first provided to the Trustee,
the
Master Servicer and the Depositor pursuant to the preceding sentence, the
Company shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in Section
3.01(p) or, if such a representation and warranty is not accurate as of the
date
of such request, provide reasonable adequate disclosure of the pertinent facts,
in writing, to the requesting party.
The
Company shall provide to the Trustee, the Master Servicer and the Depositor
prompt notice of the occurrence of any of the following: any event of default
under the terms of this Agreement, any merger, consolidation or sale of
substantially all of the assets of the Company, any material litigation
involving the Company, and any affiliation or other significant relationship
between the Company and other transaction parties.
(d)
Not
later than the tenth calendar day of each month (or if such calendar day is
not
a Business Day, the immediately preceding Business Day), the Company shall
provide to the Trustee, the Master Servicer and the Depositor notice of the
occurrence of any material modifications, extensions or waivers of terms, fees,
penalties or payments relating to the Mortgage Loans during the related Due
Period or that have cumulatively become material over time (Item 1121(a)(11)
of
Regulation AB) along with all information, data, and materials related thereto
as may be required to be included in the related Distribution Report on Form
10-D.
A-10
|
27.
|
Section
6.04 (Annual Statement as to Compliance) is hereby amended by replacing
the words “The Company shall deliver to the Purchaser, (a) on or before
March 1, 2008, an Officer’s Certificate, stating that” at the beginning of
the first sentence thereto with the words “The Company shall deliver to
the Master Servicer, the Trustee and the Depositor, (a) on or before
March
1, 2008, an Officer's Certificate in the form of Exhibit E hereto,
stating
that”.
|
|
28.
|
Section
6.05 (Annual Independent Public Accountants’ Servicing Report or
Attestation) is hereby amended by replacing “2007” with
“2008”.
|
|
29.
|
Section
6.08 (Assessment of Servicing Compliance) is hereby amended as follows:
|
(i)
by
replacing “2007” with “2008”.
(ii) by
adding
the following sentence to the end of that section: “Such report shall be
addressed to the Purchaser, the Master Servicer and such Depositor and signed
by
an authorized officer of the Company, and shall address each of the Servicing
Criteria specified in Exhibit G hereto”.
|
30.
|
A
new Section 6.10 is hereby added to read as
follows:
|
Section
6.10 Reporting
Requirements of the Commission and Indemnification.
Notwithstanding
any other provision of this Agreement, the Company acknowledges and agrees
that
the purpose of Sections 3.01(p), 5.02(c) and (d), 6.03, 6.04, 6.08, 6.09 and
9.01 of this Agreement is to facilitate compliance by the Master Servicer and
the Depositor with the provisions of Regulation AB. Therefore, the Company
agrees that (a) the obligations of the Company hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) such obligations may change
over time due to interpretive advice or guidance of the Commission, convention
or consensus among active participants in the asset-backed securities markets,
advice of counsel, or otherwise in respect of the requirements of Regulation
AB,
(c) the Company shall agree to enter into such amendments to this Agreement
as
may be necessary, in the judgment of the Depositor, the Master Servicer and
their respective counsel, to comply with such interpretive advice or guidance,
convention, consensus, advice of counsel, or otherwise, (d) the Company shall
otherwise comply with requests made by the Master Servicer or the Depositor
for
delivery of additional or different information as such parties may determine
in
good faith is necessary to comply with the provisions of Regulation AB and
(e)
the Company shall (i) agree to such modifications and enter into such amendments
to this Agreement as may be necessary, in the judgment of the Depositor, the
Master Servicer and their respective counsel, to comply with any such
clarification, interpretive guidance, convention or consensus and (ii) promptly
upon request provide to the Depositor for inclusion in any periodic report
required to be filed under the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”), such items of information regarding this Agreement and matters
related to the Company, (collectively, the “Servicer Information”), provided
that such information shall be required to be provided by the Company only
to
the extent that such shall be determined by the Depositor in its sole discretion
and its counsel to be necessary or advisable to comply with any Commission
and
industry guidance and convention.
A-11
The
Company hereby agrees to indemnify and hold harmless the Depositor,
the
Trustee, the Master Servicer, their respective officers and directors and each
person, if any, who controls the Depositor or Master Servicer within the meaning
of Section 15 of the Securities Act of 1933, as amended (the “Act”), or Section
20 of the Exchange Act, from and against any and all losses, claims, expenses,
damages or liabilities to which the Depositor, the Master Servicer, their
respective officers or directors and any such controlling person may become
subject under the Act or otherwise, as and when such losses, claims, expenses,
damages or liabilities are incurred, insofar as such losses, claims, expenses,
damages or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Servicer Information or arise out of, or are based upon, the
omission or alleged omission to state therein any material fact required to
be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
the
Depositor, the Master Servicer, their respective officers and directors and
any
such controlling person for any legal or other expenses reasonably incurred
by
it or any of them in connection with investigating or defending any such loss,
claim, expense, damage, liability or action, as and when incurred; provided,
however, that the Company shall be liable only insofar as such untrue statement
or alleged untrue statement or omission or alleged omission relates solely
to
the information in the Servicer Information furnished to the Depositor or Master
Servicer by or on behalf of the Servicer specifically in connection with this
Agreement.
|
31.
|
Section
9.01 (Indemnification; Third Party Claims) is hereby amended in its
entirety to read as follows:
|
The
Company
shall indemnify the Purchaser, the Trust Fund, the Trustee and the Master
Servicer and hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments, and any other costs, fees and expenses that any of
such parties may sustain in any way related to (a) the failure of the Company
to
perform its duties and service the Mortgage Loans in strict compliance with
the
terms of this Agreement and (b) any failure by the Company, any Subservicer
or
any Subcontractor to deliver any information, report, certification accountants'
letter or other material when and as required under this Agreement, including
any report under Sections 6.04, 6.05 and 6.08. The Company immediately
shall
notify the Purchaser, the Master Servicer and the Trustee or any other relevant
party if a claim is made by a third party with respect to this Agreement or
the
Mortgage Loans, assume (with the prior written consent of the indemnified party,
which consent shall not be unreasonably withheld or delayed) the defense of
any
such claim and pay all expenses in connection therewith, including counsel
fees,
and promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or any of such parties in respect of such claim. The Company
shall follow any written instructions received from the Master Servicer in
connection with such claim. The Company shall provide the Master Servicer and
the Trustee with a written report of all expenses and advances incurred by
the
Company pursuant to this Section 9.01, and the Trustee from the assets of the
Trust Fund promptly shall reimburse the Company for all amounts advanced by
it
pursuant to the preceding sentence except when the claim is in any way relates
to the failure of the Company to service and administer the Mortgage Loans
in
strict compliance with the terms of this Agreement or the gross negligence,
bad
faith or willful misconduct of this Company.
A-12
|
32.
|
Section
9.03 (Limitation on Liability of Company and Others) is hereby amended
in
its entirety to read as follows:
|
Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Master Servicer, the Trustee, or
the
Certificateholders for any action taken or for refraining from the taking of
any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Company or any
such
person against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of its
duties
or by reason of reckless disregard for its obligations and duties under this
Agreement. The Company and any director, officer, employee or agent of the
Company shall be entitled to indemnification by the Trust Fund and will be
held
harmless against any loss, liability or expense incurred in connection with
any
legal action relating to this Agreement, the Trust Agreement, or the
Certificates other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of his or its
duties hereunder or by reason of reckless disregard of his or its obligations
and duties hereunder. The Company and any director, officer, employee or agent
of the Company may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Company shall be under no obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement and that in its opinion may
involve it in any expenses or liability; provided, however, that the Company
may
in its sole discretion undertake any such action that it may deem necessary
or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event,
the
legal expenses and costs of such action and any liability resulting therefrom
shall be expenses, costs and liabilities of the Trust Fund and the Company
shall
be entitled to be reimbursed therefor out of the Custodial Account it maintains
as provided by Section 4.05.
|
33.
|
Section
10.01 (Events of Default) is hereby amended
by:
|
A-13
|
(a)
|
changing
any reference to “Purchaser” to “Master Servicer”;
|
|
(b)
|
amending
and restating subclause (vii) in its entirety to read as follows:
“the
Company at any time is neither a Xxxxxx Xxx or Xxxxxxx Mac approved
servicer, and the Master Servicer has not terminated the rights and
obligations of the Company under this Agreement and replaced the
Company
with a Xxxxxx Mae or Xxxxxxx Mac approved servicer within 30 days
of the
absence of such approval; or”; and
|
|
(c)
|
replacing
the period at the end of subclause (ix) with “; or” and adding the
following subclauses immediately
thereafter:
|
(x)
any failure by the Servicer to duly perform, within the required time period,
its obligations to provide any certifications under Sections 6.03, 6.04 and
6.08, which failure continues unremedied for a period of ten (10) days; or
(xi)
any failure by the Servicer to duly perform, within the required time period,
its obligations to provide any other information, data or materials required
to
be provided hereunder, including any items required to be included in any
Exchange Act report.
|
34.
|
Section
10.02 (Waiver of Defaults) is hereby amended by changing the reference
to
“Purchaser” to “Master Servicer”.
|
|
35.
|
Section
11.01 (Termination) is hereby amended by restating subclause (ii)
thereof
to read as below and adding the following sentence after the first
sentence of Section 11.01:
|
|
(ii)
|
mutual
consent of the Company and the Master Servicer in writing, provided
such
termination is also acceptable to the Trustee and the Rating
Agencies.
|
At
the time of any termination of the Company pursuant to Section 11.01, the
Company shall be entitled to all accrued and unpaid Servicing Fees and
unreimbursed Servicing Advances and Monthly Advances; provided, however, in
the
event of a termination for cause under Sections 10.01 hereof, such unreimbursed
amounts shall not be reimbursed to the Company until such amounts are received
by the Trust Fund from the related Mortgage Loans.
|
36.
|
Section
11.02 (Termination Without Cause) is hereby amended by replacing
the first
reference to “Purchaser” with “Xxxxxx Brothers Holdings” and by replacing
all other references to “Purchaser” with “Xxxxxx Brothers
Holdings.”
|
|
37.
|
Section
12.01 (Successor to Company) is hereby amended in its entirety to
read as
follows:
|
A-14
Simultaneously
with the termination of the Company’s responsibilities and duties under this
Agreement pursuant to Sections 8.04, 10.01, 11.01(ii) or 11.02, the Master
Servicer shall, in accordance with the provisions of the Trust Agreement (i)
succeed to and assume all of the Company’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor
meeting the eligibility requirements of this Agreement, and which shall succeed
to all rights and assume all of the responsibilities, duties and liabilities
of
the Company under this Agreement with the termination of the Company’s
responsibilities, duties and liabilities under this Agreement. Any successor
to
the Company that is not at that time a servicer of other mortgage loans for
the
Trust Fund shall be subject to the approval of the Master Servicer, the
Purchaser, the Trustee and each Rating Agency (as such term is defined in the
Trust Agreement). Unless the successor servicer is at that time a servicer
of
other mortgage loans for the Trust Fund, each Rating Agency must deliver to
the
Trustee a letter to the effect that such transfer of servicing will not result
in a qualification, withdrawal or downgrade of the then-current rating of any
of
the Certificates. In connection with such appointment and assumption, the Master
Servicer or the Purchaser, as applicable, may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it
and
such successor shall agree; provided, however, that no such compensation shall
be in excess of that permitted the Company under this Agreement. In the event
that the Company’s duties, responsibilities and liabilities under this Agreement
should be terminated pursuant to the aforementioned sections, the Company shall
discharge such duties and responsibilities during the period from the date
it
acquires knowledge of such termination until the effective date thereof with
the
same degree of diligence and prudence which it is obligated to exercise under
this Agreement, and shall take no action whatsoever that might impair or
prejudice the rights or financial condition of its successor. The resignation
or
removal of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this Section 12.01
and shall in no event relieve the Company of the representations and warranties
made pursuant to Sections 3.01 and 3.02 and the remedies available to the Trust
Fund under Section 3.03 shall be applicable to the Company notwithstanding
any
such resignation or termination of the Company, or the termination of this
Agreement.
Within
a reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Company shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination. The Company shall cooperate with the Trustee and
the
Master Servicer, as applicable, and such successor in effecting the termination
of the Company’s responsibilities and rights hereunder and the transfer of
servicing responsibilities to the successor servicer, including without
limitation, the transfer to such successor for administration by it of all
cash
amounts which shall at the time be credited by the Company to the Account or
any
Escrow Account or thereafter received with respect to the Mortgage
Loans.
A-15
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Trustee, the Company and the Master Servicer an instrument accepting such
appointment, wherein the successor shall make an assumption of the due and
punctual performance and observance of each covenant and condition to be
performed and observed by the Company under this Agreement, whereupon such
successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Sections
8.04, 10.01, 11.01 or 11.02 shall not affect any claims that the Master Servicer
or the Trustee may have against the Company arising out of the Company’s actions
or failure to act prior to any such termination or resignation.
The
Company shall deliver, within three (3) Business Days of the appointment of
a
successor Servicer, the funds in the Custodial Account and Escrow Account and
all Collateral Files, Credit Files and related documents and statements held
by
it hereunder to the successor Servicer and the Company shall account for all
funds and shall execute and deliver such instruments and do such other things
as
may reasonably be required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities, obligations and liabilities
of the Company.
Upon
a successor’s acceptance of appointment as such, the Company shall notify the
Trustee and Master Servicer of such appointment in accordance with the notice
procedures set forth herein.
Except
as otherwise provided in this Agreement, all reasonable costs and expenses
incurred in connection with any transfer of servicing hereunder (whether as
a
result of termination or removal of the Company or resignation of the Company
or
otherwise), including, without limitation, the costs and expenses of the Master
Servicer or any other Person in appointing a successor servicer, or of the
Master Servicer in assuming the responsibilities of the Company hereunder,
or of
transferring the Servicing Files and the other necessary data to the successor
servicer shall be paid by the terminated, removed or resigning Servicer from
its
own funds without reimbursement.
|
38.
|
Section
12.02 (Amendment) is hereby amended and restated in its entirety
as
follows:
|
This
Agreement may be amended from time to time by written agreement signed by the
Company and the Purchaser, with the written consent of the Master Servicer
and
the Trustee.
|
39.
|
Section
12.04 (Duration of Agreement) is hereby amended by deleting the last
sentence thereof.
|
|
40.
|
Section
12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
|
|
41.
|
Section
12.11 (No Personal Solicitation) is hereby amended by replacing the
words
“the Purchaser” with “Xxxxxx Brothers Holdings” in each
instance.
|
A-16
|
42.
|
A
new Section 12.13 (Intended Third Party Beneficiaries) is hereby
added to
read as follows:
|
Notwithstanding
any provision herein to the contrary, the parties to this Agreement agree that
it is appropriate, in furtherance of the intent of such parties as set forth
herein, that the Master Servicer and the Trustee receive the benefit of the
provisions of this Agreement as intended third party beneficiaries of this
Agreement to the extent of such provisions. The Company shall have the same
obligations to the Master Servicer and the Trustee as if they were parties
to
this Agreement, and the Master Servicer and the Trustee shall have the same
rights and remedies to enforce the provisions of this Agreement as if they
were
parties to this Agreement. The Company shall only take direction from the Master
Servicer (if direction by the Master Servicer is required under this Agreement)
unless otherwise directed by this Agreement. Notwithstanding the foregoing,
all
rights and obligations of the Master Servicer and the Trustee hereunder (other
than the right to indemnification) shall terminate upon termination of the
Trust
Agreement and of the Trust Fund pursuant to the Trust Agreement.
|
43.
|
Each
of Exhibit D-1 (Form of Custodial Account Certification) and Exhibit
E-1
(Form of Escrow Account Certification) is hereby amended to add a
second
page thereto containing the following:
|
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.
| [DEPOSITORY], as
Depository
|
||
| |
|
|
| By: | ||
| Name: | ||
|
Title:
|
||
|
44.
|
Exhibit
J (Annual Certification) is hereby amended and restated in its entirety
to
be identical to Exhibit H to this
Agreement.
|
X-00
XXXXXXX
X
XXXX
X-0
Xxxxxx
Brothers Bank, F.S.B.,
Purchaser
and
IndyMac
Bank, F.S.B.,
Company
SELLER’S
WARRANTIES AND SERVICING AGREEMENT
Dated
as
of July 1, 2003
Conventional
Residential Fixed and Adjustable Rate Mortgage Loans
Group
No.
2003-1
TABLE
OF
CONTENTS
Page
ARTICLE
I
DEFINITIONS
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND
RECORDS;
DELIVERY
OF DOCUMENTS
|
Section
2.01
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files; Maintenance of Servicing
Files.
|
13
|
|
Section
2.02
|
Books
and Records; Transfers of Mortgage Loans.
|
14
|
|
Section
2.03
|
Delivery
of Documents.
|
15
|
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
AND BREACH
|
Section
3.01
|
Company
Representations and Warranties.
|
16
|
|
Section
3.02
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
18
|
|
Section
3.03
|
Remedies
for Breach of Representations and Warranties.
|
30
|
|
Section
3.04
|
Restrictions
and Requirements Applicable in the Event that a Mortgage Loan is
Acquired
by a REMIC.
|
32
|
|
Section
3.05
|
Review
of Mortgage Loans.
|
34
|
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
4.01
|
Company
to Act as Servicer.
|
34
|
|
Section
4.02
|
Liquidation
of Mortgage Loans.
|
35
|
|
Section
4.03
|
Collection
of Mortgage Loan Payments.
|
36
|
|
Section
4.04
|
Establishment
of and Deposits to Custodial Account.
|
36
|
|
Section
4.05
|
Permitted
Withdrawals From Custodial Account.
|
38
|
|
Section
4.06
|
Establishment
of and Deposits to Escrow Account.
|
39
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
40
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges.
|
40
|
|
Section
4.09
|
Protection
of Accounts.
|
41
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
41
|
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance.
|
43
|
-ii-
|
Section
4.12
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
43
|
|
Section
4.13
|
Inspections.
|
44
|
|
Section
4.14
|
Restoration
of Mortgaged Property.
|
44
|
|
Section
4.15
|
Maintenance
of PMI Policy; Claims.
|
44
|
|
Section
4.16
|
Title,
Management and Disposition of REO Property.
|
46
|
|
Section
4.17
|
Real
Estate Owned Reports.
|
47
|
|
Section
4.18
|
Liquidation
Reports.
|
47
|
|
Section
4.19
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
47
|
|
Section
4.20
|
Notification
of Adjustments.
|
48
|
|
Section
4.21
|
Credit
Reporting
|
48
|
ARTICLE
V
PAYMENTS
TO PURCHASER
|
Section
5.01
|
Remittances.
|
48
|
|
Section
5.02
|
Statements
to Purchaser.
|
49
|
|
Section
5.03
|
Monthly
Advances by Company.
|
49
|
|
[Section
5.04
|
Due
Dates Other Than the First of the Month.]
|
50
|
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
Section
6.01
|
Transfers
of Mortgaged Property.
|
50
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
51
|
|
Section
6.03
|
Servicing
Compensation.
|
51
|
|
Section
6.04
|
Annual
Statement as to Compliance.
|
52
|
|
Section
6.05
|
Annual
Independent Public Accountants’ Servicing Report.
|
52
|
|
Section
6.06
|
Right
to Examine Company Records.
|
52
|
ARTICLE
VII
PASS-THROUGH
TRANSFER
|
Section
7.01
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Pass-Through
Transfer on One or More Reconstitution Dates.
|
52
|
|
Section
7.02
|
Purchaser’s
Repurchase and Indemnification Obligations.
|
54
|
ARTICLE
VIII
COMPANY
TO COOPERATE
|
Section
8.01
|
Provision
of Information.
|
54
|
|
Section
8.02
|
Financial
Statements; Servicing Facility.
|
55
|
-iii-
ARTICLE
IX
THE
COMPANY
|
Section
9.01
|
Indemnification;
Third Party Claims.
|
55
|
|
Section
9.02
|
Merger
or Consolidation of the Company.
|
56
|
|
Section
9.03
|
Limitation
on Liability of Company and Others.
|
56
|
|
Section
9.04
|
Limitation
on Resignation and Assignment by Company.
|
57
|
ARTICLE
X
DEFAULT
|
Section
10.01
|
Events
of Default.
|
57
|
|
Section
10.02
|
Waiver
of Defaults.
|
59
|
ARTICLE
XI
TERMINATION
|
Section
11.01
|
Termination.
|
59
|
|
Section
11.02
|
Termination
Without Cause.
|
59
|
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01
|
Successor
to Company.
|
60
|
|
Section
12.02
|
Amendment.
|
61
|
|
Section
12.03
|
Governing
Law.
|
61
|
|
Section
12.04
|
Duration
of Agreement.
|
61
|
|
Section
12.05
|
Notices.
|
61
|
|
Section
12.06
|
Severability
of Provisions.
|
62
|
|
Section
12.07
|
Relationship
of Parties.
|
62
|
|
Section
12.08
|
Execution;
Successors and Assigns.
|
62
|
|
Section
12.09
|
Recordation
of Assignments of Mortgage.
|
62
|
|
Section
12.10
|
Assignment
by Purchaser.
|
62
|
|
Section
12.11
|
No
Personal Solicitation.
|
63
|
|
Section
12.12
|
Appointment
and Designation of Master Servicer.
|
63
|
EXHIBITS
|
EXHIBIT
A
|
MORTGAGE
LOAN SCHEDULE
|
|
EXHIBIT
B
|
CONTENTS
OF EACH MORTGAGE FILE
|
|
EXHIBIT
C
|
MORTGAGE
LOAN DOCUMENTS
|
-iv-
|
EXHIBIT
D-1
|
FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
|
|
EXHIBIT
D-2
|
FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
E-1
|
FORM
OF ESCROW ACCOUNT CERTIFICATION
|
|
EXHIBIT
E-2
|
FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
|
|
EXHIBIT
F
|
FORM
OF MONTHLY REMITTANCE ADVICE
|
|
EXHIBIT
G
|
FORM
OF ASSIGNMENT AND ASSUMPTION
|
|
EXHIBIT
H
|
UNDERWRITING
GUIDELINES
|
-v-
This
is a
Seller’s Warranties and Servicing Agreement for conventional fixed and
adjustable rate residential first lien mortgage loans (the “Mortgage
Loans”)
on a
servicing retained basis as described herein, dated and effective as of July
1,
2003, and is executed between Xxxxxx Brothers Bank, F.S.B., as purchaser (the
“Purchaser”),
and
IndyMac Bank, F.S.B., as seller and servicer (the “Company”).
WITNESSETH:
WHEREAS,
from time to time, the Company desires to sell to the Purchaser, and from time
to time, the Purchaser desires to purchase from the Company certain conventional
fixed and adjustable rate residential first lien mortgage loans (the “Mortgage
Loans”) on a servicing retained basis as described herein, and which shall be
delivered as whole loans;
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien on a residential dwelling located in the
jurisdiction indicated on the Mortgage Loan Schedule, which is annexed hereto
as
Exhibit A; and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of the
Mortgage Loans and the management, servicing and control of the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With
respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property,
or,
with respect to a Cooperative Loan, where the related Cooperative Project,
is
located.
Acknowledgment
Agreement:
The
document, substantially in the form of Exhibit I, to be executed by the
Purchaser and the Company on or prior to each Closing Date which document shall
amend the Mortgage Loan Schedule attached as Exhibit A hereto to reflect the
addition of Mortgage Loans to such Exhibit A and which document reflects the
addition of Mortgage Loans which are subject to the terms and conditions of
this
Agreement.
Agency
Transfer:
The
sale or transfer by Purchaser of some or all of the Mortgage Loans to Xxxxxx
Mae
under its Cash Purchase Program or its MBS Swap Program (Special Servicing
Option) or to Xxxxxxx Mac under its Xxxxxxx Xxx Xxxx Program or Gold PC Program,
retaining the Company as “servicer thereunder”.
Agreement:
This
Seller’s Warranties and Servicing Agreement and all amendments hereof and
supplements hereto.
ALTA:
The
American Land Title Association or any successor thereto.
Appraised
Value:
The
value set forth in an appraisal made in connection with the origination of
the
related Mortgage Loan as the value of the Mortgaged Property or Cooperative
Unit, as applicable.
Appropriate
Federal Banking Agency:
Appropriate Federal Banking Agency shall have the meaning ascribed to it by
Section 1813(q) of Title 12 of the United States Code, as amended from time
to
time.
Approved
Flood Insurance Contract Provider:
A flood
insurance contract provider acceptable to the Purchaser or its designee, in
its
sole discretion.
Approved
Tax Service Contract Provider:
First
American Real Estate Tax Service.
ARM
Mortgage Loan:
An
adjustable rate Mortgage Loan.
Assignment
and Conveyance:
An
Assignment and Conveyance in the form of Exhibit 6 to the Mortgage Loan Purchase
Agreement dated as of the date hereof, by and between the Seller and the
Purchaser.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
BIF:
The
Bank Insurance Fund, or any successor thereto.
BPO: A
broker’s price opinion with respect to a Mortgaged Property.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking and savings
and loan institutions in the States of New York or California are authorized
or
obligated by law or executive order to be closed.
Closing
Date:
The
date or dates set forth on the related Purchase Price and Terms Letter on which
the Purchaser from time to time shall purchase and the Company from time to
time
shall sell, the Mortgage Loans listed on the related Mortgage Loan
Schedule.
-2-
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Company:
IndyMac
Bank, F.S.B., or its successor in interest or assigns, or any successor to
the
Company under this Agreement appointed as herein provided.
Condemnation
Proceeds:
All
awards or settlements in respect of a Mortgaged Property, whether permanent
or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Cooperative
Corporation:
The
cooperative apartment corporation that holds legal title to a Cooperative
Project and grants occupancy rights to units therein to stockholders through
Proprietary Leases or similar arrangements.
Cooperative
Loan:
A
Mortgage Loan identified as such on the applicable Mortgage Loan Schedule that
is secured by a first lien on and a perfected security interest in Cooperative
Shares and the related Proprietary Lease granting exclusive rights to occupy
the
related Cooperative Unit in the building owned by the related Cooperative
Corporation.
Cooperative
Project:
All
real property owned by a Cooperative Corporation including the land, separate
dwelling units and all common elements.
Cooperative
Shares:
The
shares of stock issued by a Cooperative Corporation and allocated to a
Cooperative Unit and represented by a stock certificate.
Cooperative
Unit:
Means a
specific unit in a Cooperative Project.
Custodial
Agreement:
That
certain Custodial Agreement, dated as of September 1, 1999, by and between
the
Purchaser and the Custodian.
Custodian:
U.S.
Bank Trust National Association.
Cut-off
Date:
The
date set forth on the related Purchase Price and Terms Letter.
Deleted
Mortgage Loan:
A
Mortgage Loan which is repurchased by the Company in accordance with the terms
of this Agreement and which is, in the case of a substitution pursuant to
Section 3.03, replaced or to be replaced with a Qualified Substitute Mortgage
Loan.
Determination
Date:
The
15th
day (or
if such day is not a Business Day, the Business Day immediately preceding such
15th
day) of
the month of the related Remittance Date.
Disqualified
Organization:
An
organization defined as such in Section 860E(e) of the Code.
-3-
Due
Date:
The day
of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive
of any days of grace. With respect to the Mortgage Loans for which payment
from
the Mortgagor is due on a day other than the first day of the month, such
Mortgage Loans will be treated as if the Monthly Payment is due on the first
day
of the month of such Due Date.
Due
Period:
With
respect to each Remittance Date, the period commencing on the second day of
the
month preceding the month of the Remittance Date and ending on the first day
of
the month of the Remittance Date.
Eligible
Investments:
Any one
or more of the obligations and securities listed below which investment provides
for a date of maturity not later than the Determination Date in each
month:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; and
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated “P-1” by Xxxxx’x Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “Aa” by Xxxxx’x
Investors Service, Inc. and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated at least “Aa” by
Xxxxx’x Investors Service, Inc.;
provided,
however,
that no
such instrument shall be an Eligible Investment if such instrument evidences
either (i) a right to receive only interest payments with respect to the
obligations underlying such instrument, or (ii) both principal and interest
payments derived from obligations underlying such instrument and the principal
and interest payments with respect to such instrument provide a yield to
maturity of greater than 120% of the yield to maturity at par of such underlying
obligations.
Errors
and Omissions Insurance Policy:
An
errors and omissions insurance policy to be maintained by the Company pursuant
to Section 4.12.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section
4.06.
-4-
Escrow
Mortgage Loan:
A
Mortgage Loan for which Escrow Payments are required to be escrowed by the
Mortgage or any other document.
Escrow
Payments:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
assessments, water rates, sewer rents, municipal charges, mortgage insurance
premiums, fire and hazard insurance premiums, condominium charges, and any
other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage or any other related document.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 10.01.
Exception
Mortgage Loan:
A
Mortgage Loan which was originated as an exception to the Company’s underwriting
guidelines in effect at the time of origination, as attached hereto as
Exhibit
H.
Xxxxxx
Mae:
Xxxxxx
Xxx, or any successor thereto.
Xxxxxx
Mae Guides:
The
Xxxxxx Xxx Xxxxxxx’ Guide and the Xxxxxx Mae Servicers’ Guide and all amendments
or additions thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
FICO
Score:
A
statistical credit score obtained by mortgage lenders in connection with the
loan application to help assess a borrower’s credit worthiness.
Fidelity
Bond:
A
fidelity bond to be maintained by the Company pursuant to Section
4.12.
First
Remittance Date:
With
respect to each Mortgage Loan, the 18th day of the month following the month
in
which the related Cut-off Date occurs, or if such 18th day is not a Business
Day, the first Business Day immediately following such 18th day.
Xxxxxxx
Mac:
Xxxxxxx
Mac, or any successor thereto.
Gross
Margin:
With
respect to each ARM Mortgage Loan, the fixed percentage amount set forth in
the
related Mortgage Note.
Index:
With
respect to each ARM Mortgage Loan, the index set forth in the related Mortgage
Note.
Insurance
Proceeds:
With
respect to each Mortgage Loan, proceeds of insurance policies insuring the
Mortgage Loan or the related Mortgaged Property.
Insured
Depository Institution:
Insured
Depository Institution shall have the meaning ascribed to such term by Section
1813(c)(2) of Title 12 of the United States Code, as amended from time to
time.
-5-
Interest
Rate Adjustment Date:
The
date on which an adjustment to the Mortgage Interest Rate with respect to each
ARM Mortgage Loan becomes effective
Lifetime
Rate Cap:
With
respect to each ARM Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute maximum Mortgage Interest Rate thereunder.
Liquidation
Proceeds:
Cash
received in connection with the liquidation of a defaulted Mortgage Loan,
whether through the sale or assignment of such Mortgage Loan, trustee’s sale,
foreclosure sale or otherwise, or the sale of the related Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage
Loan.
Loan-to-Value
Ratio or LTV:
With
respect to any Mortgage Loan, the ratio of the Stated Principal Balance of
the
Mortgage Loan as of the Cut-off Date (unless otherwise indicated) to the lesser
of (a) the Appraised Value of the Mortgaged Property and (b) if the Mortgage
Loan was made to finance the acquisition of the related Mortgaged Property,
the
purchase price of the Mortgaged Property, expressed as a
percentage.
LPMI
Fee:
With
respect to each Mortgage Loan which has an LPMI Policy, the premium due on
the
related LPMI Policy.
LPMI
Policy: A
policy
of primary mortgage guaranty insurance issued by a Qualified
Insurer.
Monthly
Advance:
The
portion of Monthly Payment delinquent with respect to each Mortgage Loan at
the
close of business on the Determination Date required to be advanced by the
Company pursuant to Section 5.03 on the Business Day immediately preceding
the
Remittance Date of the related month.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
The
mortgage, deed of trust, Pledge Agreement or other instrument securing a
Mortgage Note, which creates a first lien on an unsubordinated estate in fee
simple in real property securing the Mortgage Note, or in the case of each
Cooperative Loan creates a first priority security interest on the Cooperative
Shares and Proprietary Lease securing the Mortgage Note.
Mortgage
File:
The
items pertaining to a particular Mortgage Loan referred to in Exhibit B
annexed
hereto, and any additional documents required to be added to the Mortgage File
pursuant to this Agreement.
Mortgage
Impairment Insurance Policy:
A
mortgage impairment or blanket hazard insurance policy as described in Section
4.11.
Mortgage
Interest Rate:
The
annual rate of interest borne on a Mortgage Note.
-6-
Mortgage
Loan:
An
individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the
related Mortgage Loan Schedule, which Mortgage Loan includes without limitation
the Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation
Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds
and all other rights, benefits, proceeds and obligations arising from or in
connection with such Mortgage Loan.
Mortgage
Loan Documents:
The
documents listed in Exhibit C
hereto.
Mortgage
Loan Package:
A pool
of Mortgage Loans sold to the Purchaser by the Company on a Closing
Date.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the annual rate of interest remitted to the
Purchaser, which shall be equal to the Mortgage Interest Rate minus the
Servicing Fee Rate.
-7-
Mortgage
Loan Schedule:
With
respect to each Mortgage Loan Package, a schedule of Mortgage Loans annexed
hereto as Exhibit A, each such schedule setting forth the following information
with respect to each Mortgage Loan: (1) the
Seller’s Mortgage Loan identifying number; (2) the Mortgagor’s and
Co-Mortgagor’s (if applicable) names; (3) the street address of the Mortgaged
Property, including the city, state, zip code, county, lot number, block number
and section number; (4) a code indicating whether the Mortgaged Property is
a
single family residence, a 2 family dwelling, a 3-4 family dwelling, a
manufactured home, a PUD, a townhouse, a unit in a condominium project, a
co-operative, a mixed-use property, land, or a non-residential property; (5)
a
code indicating the Mortgage Loan is a fixed rate or adjustable rate Mortgage
Loan (to be provided in accordance with Standard and Poor’s loan type
requirements-Field 14); (6) product description (to be provided in accordance
with Standard and Poor’s description categories-Field 7); (7) a code indicating
the lien status of the Mortgage Loan; (8) the original months to maturity or
the
remaining months to maturity from the Cut-off Date, in any case based on the
original amortization schedule, and if different, the maturity expressed in
the
same manner but based on the actual amortization schedule; (9) the Loan-to-Value
Ratio at origination; (10) the combined Loan-to-Value Ratio at origination;
(11)
the Mortgage Interest Rate as of the Cut-off Date; (12) the payment and rate
adjustment frequencies (if applicable); (13) the Index (if applicable); (14)
the
initial Interest Rate Adjustment Date (if applicable); (15) the initial payment
adjustment date (if applicable); (16) the next Interest Rate Adjustment Date
(if
applicable); (17) the next payment adjustment date (if applicable); (18) the
Gross Margin (if applicable); (19) the minimum Mortgage Interest Rate under
the
terms of the Mortgage Note (if applicable); (20) Mortgage Interest Rate
adjustment frequencies (if applicable); (21) the maximum Mortgage Interest
Rate
under the terms of the Mortgage Note (if applicable); (22) the Periodic Rate
cap
at the initial Interest Rate Adjustment Date (if applicable); (23) the Periodic
Rate Cap at all subsequent Interest Rate Adjustment Dates (if applicable);
(24)
the Lifetime Rate Cap (if applicable); (25) the
rounding provisions under the terms of the Mortgage Note (if applicable); (26)
the lookback provisions (#of days) under the terms of the Mortgage Note (if
applicable); (27) negative amortization indicator and limit; (28) the date
on
which the first Monthly Payment is due; (29) the
original term of the Mortgage Loan; (30) the
stated maturity date; (31) the amount of the Monthly Payment; (32) the
annual payment cap expressed as a percentage (for ARM Mortgage Loans only);
(33) the
next
Due Date as of the Cut-off Date; (34) the original principal amount of the
Mortgage Loan; (35) the senior and subordinate balances (if applicable); (36)
the closing date of the Mortgage Loan; (37) the principal balance of the
Mortgage Loan as of the close of business on the Cut-off Date; after deduction
of payments of principal actually received on or before the Cut-off Date; (38)
monthly payment histories on current and prior mortgages (24 months if
available); (39) prior foreclosure history (for the past 24 months); (40) prior
bankruptcy history (for the past 24 months); (41) the Mortgage Loan purpose
code; (42) the occupancy code; (43) the Mortgage Loan documentation type, (to
be
provided in conformance with Standard and Poor’s documentation categories- Field
5); (44) Asset Verification (purchase money Mortgage Loans only), (yes or no);
(45) a
code
indicating the Credit Grade of the Mortgage Loan; (46) the debt to income ratio;
(47) the
Mortgagor’s and co-Mortgagor’s (if applicable) social security numbers; (48) the
Mortgagor’s and co-Mortgagor’s (if applicable) original FICO score and the Next
Generation FICO score for new credit scores; (49) the date of the FICO score;
(50) the
Mortgagor’s mailing address if different from Number (3) above; (51) the
Mortgagor’s home telephone number; (52) the Mortgagor’s business telephone
number; (53) the purchase price of the Mortgaged Property (if a purchase);
(54)
the appraisal date and the Appraised Value of the Mortgaged Property;
(55) the
Mortgagor’s and Co-Mortgagor’s (if applicable) race; (56) the Mortgagor’s and
Co-Mortgagor’s (if applicable) gender; (57) the Mortgagor’s and Co-Mortgagor’s
(if applicable) date of birth; (58) the number of bedrooms; (59) rental income
per unit; (60) the combined annual income; (61) the application date; (62)
the
broker’s name; (63) the broker’s firm name; (64) the appraiser’s name; (65) the
appraiser’s firm name; (66) the settlement agent; (67) the origination channel
(wholesale, retail, or correspondent); (68) flood insurance contract provider;
(69) tax service contract provider; (70) number of units; (71) as of date;
(72) amortization
term; (73) balloon flag; (74) prepayment penalty flag; (75) prepayment penalty
term and prepayment penalty description (i.e.- 6 months interest, set percentage
of UPB); (76) payment history current Mortgage Loan; (77) payment history
previous mortgage loan and all refinanced mortgage loans; (78) mortgage
insurance provider, or code for LPMI; (79) PMI Policy coverage percentage;
(80)
PMI Policy cost; (81) PMI Policy certificate number; (82) number of Mortgagors;
(83) first time home buyer flag; (84) the year in which the Mortgaged Property
was built; (85) the monthly tax and insurance payment; (86) the
monthly servicing fee; (87) the escrow balance as of the Cut-off Date; (88)
the
MIN number assigned to each Mortgage Loan, if applicable; (89) a code indicating
the Appraisal Type (Tax Assessment, BPO, Drive-By Form 704, URAR, Form 2065,
Form 2055 (Exterior only), Form 2055 (Interior Inspection), or AVM; (90) if
the
Appraisal Type in #89 is an AVM, then a description of the AVM type; (91) a
code
indicating whether the Borrower(s) is self-employed (yes or no); (92) a section
32 flag and the origination points and or fees; and (93) a code indicating
if
the Mortgage Loan is assumable (yes or no). With respect to the Mortgage Loans
in each Mortgage Loan Package in the aggregate, the related Mortgage Loan
Schedule shall set forth the following information, as of the related Cut-off
Date: (1) the number of Mortgage Loans; (2) the current aggregate outstanding
principal balance of the Mortgage Loans; (3) the weighted average Mortgage
Interest Rate of the Mortgage Loans; and (4) the weighted average maturity
of
the Mortgage Loans.
-8-
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
Mortgaged
Property:
The
residential real property securing repayment of the debt evidenced by a Mortgage
Note or with respect to a Cooperative Loan, the Cooperative Shares and the
Proprietary Lease.
Mortgagor:
The
obligor on a Mortgage Note.
NOI:
A
notice of intent to foreclose delivered by the Company to the applicable
Mortgagor in compliance with applicable law.
Nonrecoverable
Advance:
Any
Servicing Advance or Monthly Advance in respect of a Mortgage Loan or REO
Property that, pursuant to Accepted Servicing Practices, would not be
recoverable from Insurance Proceeds or Liquidation Proceeds with respect to
such
Mortgage Loan or REO Property.
Officer’s
Certificate:
A
certificate signed by the Chairman of the Board or the Vice Chairman of the
Board or the President or a Vice President or an assistant Vice President and
by
the Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Company, and delivered to the Purchaser as required by this
Agreement.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the Company, reasonably
acceptable to the Purchaser, provided that any Opinion of Counsel relating
to
(a) qualification of the Mortgage Loans in a REMIC or (b) compliance with the
REMIC Provisions, must be an opinion of counsel who (i) is in fact independent
of the Company and any master servicer of the Mortgage Loans, (ii) does not
have
any material direct or indirect financial interest in the Company or any master
servicer of the Mortgage Loans or in an affiliate of either and (iii) is not
connected with the Company or any master servicer of the Mortgage Loans as
an
officer, employee, director or person performing similar functions.
Pass-Through
Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a trust to be formed
as
part of a publicly-issued and/or privately placed, rated or unrated, mortgage
pass-through transaction, retaining the Company as “servicer” (with or without a
master servicer) thereunder.
Periodic
Rate Cap:
With
respect to each ARM Mortgage Loan, the provision of each Mortgage Note which
provides for an absolute maximum amount by which the Mortgage Interest Rate
therein may increase on an Interest Rate Adjustment Date above the Mortgage
Interest Rate previously in effect.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof.
Pledge
Agreement:
The
specific security agreement or pledge agreement creating a security interest
on
and pledge of the Cooperative Shares and the appurtenant Proprietary Lease
securing a Cooperative Loan.
PMI
Policy:
A
policy of primary mortgage guaranty insurance issued by a Qualified Insurer,
as
required by this Agreement with respect to certain Mortgage Loans.
-9-
Prepayment
Interest Shortfall Amount:
With
respect to any Mortgage Loan that was subject to a Principal Prepayment in
full
or in part during any Principal Prepayment Period, which Principal Prepayment
was applied to such Mortgage Loan prior to such Mortgage Loan’s Due Date in such
Due Period, the amount of interest (net the related Servicing Fee) that would
have accrued on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to
such
Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
Prime
Rate:
The
prime rate announced to be in effect from time to time, as published as the
average rate in the “Money Rates” section of The
Wall Street Journal.
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, including any prepayment penalty or premium
thereon and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent
to
the month of prepayment.
Principal
Prepayment Period:
The
month preceding the month in which the related Remittance Date
occurs.
Proprietary
Lease:
A lease
on (or occupancy agreement with respect to) a Cooperative Unit evidencing the
possessory interest of the owner of the Cooperative Shares or the Company in
such Cooperative Unit.
Purchaser:
Xxxxxx
Brothers Bank, F.S.B., or its successor in interest or any successor to the
Purchaser under this Agreement as herein provided.
Qualified
Depository:
A
depository the accounts of which are insured by the FDIC through the BIF or
the
SAIF or the debt obligations of which are rated AA or better by Standard &
Poor’s Corporation.
Qualified
Insurer:
A
mortgage guaranty insurance company duly authorized and licensed where required
by law to transact mortgage guaranty insurance business and approved as an
insurer by Xxxxxx Mae or Xxxxxxx Mac and the Rating Agencies.
Qualified
Substitute Mortgage Loan:
A
mortgage loan eligible to be substituted by the Company for a Deleted Mortgage
Loan which must, on the date of such substitution, (i) have an outstanding
principal balance, after deduction of all scheduled payments due in the month
of
substitution (or in the case of a substitution of more than one mortgage loan
for a Deleted Mortgage Loan, an aggregate principal balance), not in excess
of
the Stated Principal Balance of the Deleted Mortgage Loan; (ii) be of the same
type as the Deleted Mortgage Loan (e.g. fixed rate Mortgage Loan vs. ARM
Mortgage Loan); (iii) have a Mortgage Interest Rate not less than and not more
than 2% greater than the Mortgage Interest Rate of the Deleted Mortgage Loan;
(iv) have a remaining term to maturity not greater than and not more than one
year less than that of the Deleted Mortgage Loan; (v) comply with each
representation and warranty set forth in Sections 3.01 and 3.02; and
(vi) be a REMIC Eligible Mortgage Loan.
-10-
Rating
Agency:
Any of
Fitch, Moody’s or Standard & Poor’s or their respective successors designed
by the Purchaser.
Reconstitution
Agreements:
The
agreement or agreements entered into by the Purchaser, the Company, or certain
third parties on the Reconstitution Date(s) with respect to any or all of the
Mortgage Loans serviced hereunder, in connection with a Pass-Through Transfer
as
set forth in Section 7.01, including, but not limited to, a Pooling and
Servicing Agreement and master servicing agreement and related custodial/trust
agreement and related documents with respect to a Pass-Through Transfer. Such
agreement or agreements shall prescribe the rights and obligations of the
Company in servicing the related Mortgage Loans and shall provide for servicing
compensation to the Company (calculated on a weighted average basis for all
the
related Mortgage Loans as of the Reconstitution Date) at least equal to the
Servicing Fee due the Company in accordance with this Agreement or the servicing
fee required pursuant to the Reconstitution Agreement, whichever is less. The
form of relevant Reconstitution Agreement to be entered into by the Purchaser
and/or master servicer or trustee and the Company with respect to Pass-Through
Transfers shall be reasonably satisfactory in form and substance to the
Purchaser and the Company (giving due regard to any rating or master servicing
requirements) and the representations and warranties and servicing provisions
contained therein shall be substantially similar to those contained in this
Agreement, unless otherwise mutually agreed by the parties.
Reconstitution
Date:
The
date or dates on which any or all of the Mortgage Loans serviced under this
Agreement shall be removed from this Agreement and reconstituted as part of
a
Pass-Through Transfer pursuant to Section 7.01 hereof. On such date or dates,
the Mortgage Loans transferred shall cease to be covered by this Agreement
and
the Company’s servicing responsibilities shall cease under this Agreement with
respect to the related transferred Mortgage Loans.
Record
Date:
The
close of business of the last Business Day of the month preceding the month
of
the related Remittance Date.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of the
Code.
REMIC
Documents:
The
document or documents creating and governing the administration of a
REMIC.
REMIC
Eligible Mortgage Loan:
A
Mortgage Loan held by a REMIC which satisfies and/or complies with all
applicable REMIC Provisions.
REMIC
Provisions:
Provisions of the federal income tax law relating to a REMIC, which appear
at
Section 860A through 860G of Subchapter M of Chapter 1,
Subtitle A of the Code, and related provisions, and regulations, rulings or
pronouncements promulgated thereunder, as the foregoing may be in effect from
time to time.
Remittance
Date:
The
18th
day (or
if such day is not a Business Day, the Business Day immediately following such
18th
day).
-11-
REO
Disposition:
The
final sale by the Company of any REO Property.
REO
Disposition Proceeds:
All
amounts received with respect to an REO Disposition pursuant to Section 4.16.
REO
Property:
A
Mortgaged Property acquired by the Company on behalf of the Purchasers through
foreclosure or by deed in lieu of foreclosure, as described in Section
4.16.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of the Mortgage Loan plus (ii) interest on such Stated Principal Balance at
the
Mortgage Loan Remittance Rate from the date on which interest has last been
paid
and distributed to the Purchaser to the date of repurchase, less amounts
received or advanced in respect of such repurchased Mortgage Loan which are
being held in the Custodial Account for distribution in the month of
repurchase.
SAIF:
The
Savings Association Insurance Fund, or any successor thereto.
Securities
Act of 1933 or the 1933 Act:
The
Securities Act of 1933, as amended.
Servicing
Advances:
All
customary, reasonable and necessary “out of pocket” costs and expenses other
than Monthly Advances (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Company of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement or judicial
proceedings, including foreclosures, (c) the management and liquidation of
any
REO Property and (d) compliance with the obligations under Section
4.08.
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to the Company, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b) the outstanding
principal balance of such Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period respecting which
any related interest payment on a Mortgage Loan is computed. The obligation
of
the Purchaser to pay the Servicing Fee is limited to, and the Servicing Fee
is
payable solely from, the interest portion (including recoveries with respect
to
interest from Liquidation Proceeds, to the extent permitted by Section 4.05)
of
such Monthly Payment collected by the Company, or as otherwise provided under
Section 4.05.
Servicing
Fee Rate:
0.44%
per annum.
Servicing
File:
With
respect to each Mortgage Loan, the file retained by the Company consisting
of
originals of all documents in the Mortgage File which are not delivered to
the
Custodian and copies of the Mortgage Loan Documents listed in Exhibit C, the
originals of which are delivered to the Custodian pursuant to Section
2.01.
Servicing
Officer:
Any
officer of the Company involved in or responsible for, the administration and
servicing of the Mortgage Loans whose name appears on a list of servicing
officers furnished by the Company to the Purchaser upon request, as such list
may from time to time be amended.
-12-
Stated
Principal Balance:
As to
each Mortgage Loan, (i) the principal balance of the Mortgage Loan at the
related Cut-off Date after giving effect to payments of principal due on or
before such date, whether or not received, minus (ii) all amounts previously
distributed to the Purchaser with respect to the related Mortgage Loan
representing payments or recoveries of principal or advances in lieu
thereof.
Tax
Returns:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of any
REMIC under the REMIC Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the certificate
holders under a REMIC or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
Transfer:
Any of
an Agency Transfer, Whole Loan Transfer or Pass-Through Transfer.
Underwriting
Guidelines:
The
underwriting guidelines of the Seller for jumbo prime mortgage loans, as
attached hereto as Exhibit
H.
Well
Capitalized:
With
respect to any Insured Depository Institution, the maintenance by such Insured
Depository Institution of capital ratios at or above the required minimum levels
for such capital category under the regulations promulgated pursuant to Section
1831(o) of the United States Code, as amended from time to time, by the
Appropriate Federal Banking Agency for such institution, as such regulation
may
be amended from time to time.
Whole
Loan Transfer:
The
sale or transfer of some or all of the Mortgage Loans to a third party purchaser
in a whole loan transaction pursuant to a seller’s warranties and servicing
agreement or a participation and servicing agreement, retaining the Company
as
“servicer” thereunder.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; POSSESSION OF MORTGAGE FILES;
BOOKS
AND RECORDS;
DELIVERY
OF DOCUMENTS
|
Section
2.01
|
Conveyance
of Mortgage Loans; Possession of Mortgage Files; Maintenance of Servicing
Files.
|
The
Company, on each Closing Date, does hereby sell, transfer, assign, set over
and
convey to the Purchaser, without recourse, but subject to the terms of this
Agreement, all the right, title and interest of the Company in and to the
Mortgage Loans in the related Mortgage Loan Package. Pursuant to Section 2.03,
the Company has delivered the Mortgage Loan Documents for each Mortgage Loan
in
the Mortgage Loan Package to the Custodian.
-13-
The
contents of each Mortgage File not delivered to the Custodian are and shall
be
held in trust by the Company for the benefit of the Purchaser as the owner
thereof. The Company shall maintain a Servicing File consisting of a copy of
the
contents of each Mortgage File and the originals of the documents in each
Mortgage File not delivered to the Custodian. The possession of each Servicing
File by the Company is at the will of the Purchaser for the sole purpose of
servicing the related Mortgage Loan, and such retention and possession by the
Company is in a custodial capacity only. Upon the sale of the Mortgage Loans
the
ownership of each Mortgage Note, the related Mortgage and the related Mortgage
File and Servicing File shall vest immediately in the Purchaser, and the
ownership of all records and documents with respect to the related Mortgage
Loan
prepared by or which come into the possession of the Company shall vest
immediately in the Purchaser and shall be retained and maintained by the
Company, in trust, at the will of the Purchaser and only in such custodial
capacity. Each Servicing File shall be segregated from the other books and
records of the Company and shall be marked appropriately to reflect clearly
the
sale of the related Mortgage Loan to the Purchaser. The Company shall release
its custody of the contents of any Servicing File only in accordance with
written instructions from the Purchaser, unless such release is required as
incidental to the Company’s servicing of the Mortgage Loans or is in connection
with a repurchase of any Mortgage Loan pursuant to Section 3.03, 3.04, 3.05
or
6.02.
|
Section
2.02
|
Books
and Records; Transfers of Mortgage Loans.
|
From
and
after the sale of the Mortgage Loans to the Purchaser all rights arising out
of
the Mortgage Loans in a Mortgage Loan Package including but not limited to
all
funds received on or in connection with the Mortgage Loans, shall be received
and held by the Company in trust for the benefit of the Purchaser as owner
of
such Mortgage Loans, and the Company shall retain record title to the related
Mortgages for the sole purpose of facilitating the servicing and the supervision
of the servicing of the Mortgage Loans.
The
sale
of each Mortgage Loan in a Mortgage Loan Package shall be reflected on the
Company’s balance sheet and other financial statements as a sale of assets by
the Company. The Company shall be responsible for maintaining, and shall
maintain, a complete set of books and records for each Mortgage Loan which
shall
be marked clearly to reflect the ownership of each Mortgage Loan by the
Purchaser. In particular, the Company shall maintain in its possession,
available for inspection by the Purchaser, or its designee and shall deliver
to
the Purchaser upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, and requirements of Xxxxxx Xxx or Xxxxxxx
Mac, including but not limited to documentation as to the method used in
determining the applicability of the provisions of the Flood Disaster Protection
Act of 1973, as amended, to the Mortgaged Property, documentation evidencing
insurance coverage and eligibility of any condominium project for approval
by
Xxxxxx Mae and periodic inspection reports as required by Section 4.13. To
the
extent that original documents are not required for purposes of realization
of
Liquidation Proceeds or Insurance Proceeds, documents maintained by the Company
may be in the form of microfilm or microfiche or such other reliable means
of
recreating original documents, including but not limited to, optical imagery
techniques so long as the Company complies with the requirements of the Xxxxxx
Xxx Selling and Servicing Guides, as amended from time to time.
-14-
This
Agreement continuously, from the time of its execution, shall be an official
record of the Company and Company will maintain a copy of this Agreement and
each agreement related hereto in its official books and records.
The
Company shall maintain with respect to each Mortgage Loan and shall make
available for inspection by any Purchaser or its designee the related Servicing
File during the time the Purchaser retains ownership of a Mortgage Loan and
thereafter in accordance with applicable laws and regulations.
The
Company shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Company shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be made unless
such transfer is in compliance with the terms hereof. For the purposes of this
Agreement, the Company shall be under no obligation to deal with any person
with
respect to this agreement or the Mortgage Loans unless the books and records
show such person as the owner of the Mortgage Loan. The Purchaser may, subject
to the terms of this Agreement, sell and transfer one or more of the Mortgage
Loans, provided,
however,
that
(i) the transferee will not be deemed to be a Purchaser hereunder binding upon
the Company unless such transferee shall agree in writing to be bound by the
terms of this Agreement and an original counterpart of the instrument of
transfer and an assignment and assumption of this Agreement in the form of
Exhibit
G
hereto
executed by the transferee shall have been delivered to the Company, and (ii)
with respect to each Mortgage Loan Package, in no event shall there be more
than
four Persons at any given time having the status of “Purchaser” hereunder. The
Purchaser also shall advise the Company of the transfer. Upon receipt of notice
of the transfer, the Company shall xxxx its books and records to reflect the
ownership of the Mortgage Loans of such assignee, and shall release the previous
Purchaser from its obligations hereunder with respect to the Mortgage Loans
sold
or transferred.
|
Section
2.03
|
Delivery
of Documents.
|
On
or
prior to the date set forth in the related Purchase Price and Terms Letter,
the
Company shall deliver and release to the Custodian those Mortgage Loan Documents
as required by this Agreement with respect to each Mortgage Loan in the related
Mortgage Loan Package, a list of which is attached to the related Assignment
and
Conveyance.
On
or
prior to the related Closing Date, the Custodian shall certify its receipt
of
all such Mortgage Loan Documents required to be delivered pursuant to the
Custodial Agreement, as evidenced by the Initial Certification of the Custodian
in the form annexed to the Custodial Agreement. The Purchaser shall be
responsible for maintaining the Custodial Agreement for the benefit of the
Purchaser and shall pay all fees and expenses of the Custodian.
The
Company shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 4.01 or 6.01 within one week of their
execution, provided, however, that the Company shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
one
week of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within sixty
days of its submission for recordation.
-15-
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES;
REMEDIES
AND BREACH
|
Section
3.01
|
Company
Representations and Warranties.
|
The
Company represents and warrants to the Purchaser that as of each Closing
Date:
(a) Due
Organization and Authority.
The
Company is a federally chartered savings bank duly organized, validly existing
and in good standing under the laws of the United States and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each state where a Mortgaged Property is
located if the laws of such state require licensing or qualification in order
to
conduct business of the type conducted by the Company, and in any event the
Company is in compliance with the laws of any such state to the extent necessary
to ensure the enforceability of the related Mortgage Loan and the servicing
of
such Mortgage Loan in accordance with the terms of this Agreement; the Company
has the full corporate power and authority to execute and deliver this Agreement
and to perform in accordance herewith; the execution, delivery and performance
of this Agreement (including all instruments of transfer to be delivered
pursuant to this Agreement) by the Company and the consummation of the
transactions contemplated hereby have been duly and validly authorized; this
Agreement evidences the valid, binding and enforceable obligation of the
Company; and all requisite corporate action has been taken by the Company to
make this Agreement valid and binding upon the Company in accordance with its
terms;
(b) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Company, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Company pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction;
(c) No
Conflicts.
Neither
the execution and delivery of this Agreement, the acquisition of the Mortgage
Loans by the Company, the sale of the Mortgage Loans to the Purchaser or the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions of this Agreement, will conflict with or result in a breach
of any of the terms, conditions or provisions of the Company’s charter or
by-laws or any legal restriction or any agreement or instrument to which the
Company is now a party or by which it is bound, or constitute a default or
result in an acceleration under any of the foregoing, or result in the violation
of any law, rule, regulation, order, judgment or decree to which the Company
or
its property is subject, or impair the ability of the Purchaser to realize
on
the Mortgage Loans, or impair the value of the Mortgage Loans;
-16-
(d) Ability
to Service.
The
Company is an approved seller/servicer of conventional residential mortgage
loans for Xxxxxx Xxx or Xxxxxxx Mac, with the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage loans of
the
same type as the Mortgage Loans. The Company is in good standing to sell
mortgage loans to and service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac,
and
no event has occurred, including but not limited to a change in insurance
coverage, which would make the Company unable to comply with Xxxxxx Mae or
Xxxxxxx Mac eligibility requirements or which would require notification to
either Xxxxxx Mae or Xxxxxxx Mac;
(e) Reasonable
Servicing Fee.
The
Company acknowledges and agrees that the Servicing Fee, as calculated at the
Servicing Fee Rate, represents reasonable compensation for performing such
services and that the entire Servicing Fee shall be treated by the Company,
for
accounting and tax purposes, as compensation for the servicing and
administration of the Mortgage Loans pursuant to this Agreement.
(f) Ability
to Perform.
The
Company does not believe, nor does it have any reason or cause to believe,
that
it cannot comply in all material respects each and every covenant contained
in
this Agreement. The Company is solvent and the sale of the Mortgage Loans will
not cause the Company to become insolvent. The sale of the Mortgage Loans is
not
undertaken with the intent to hinder, delay or defraud any of the Company’s
creditors;
(g) No
Litigation Pending.
There
is no action, suit, proceeding or investigation pending or, to the best of
the
Company’s knowledge, threatened against the Company which, either in any one
instance or in the aggregate, may result in any material adverse change in
the
business, operations, financial condition, properties or assets of the Company,
or in any material impairment of the right or ability of the Company to carry
on
its business substantially as now conducted, or in any material liability on
the
part of the Company, or which would draw into question the validity of this
Agreement or the Mortgage Loans or of any action taken or to be taken in
connection with the obligations of the Company contemplated herein, or which
would be likely to impair materially the ability of the Company to perform
under
the terms of this Agreement;
(h) No
Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Company
of
or compliance by the Company with this Agreement or the sale of the Mortgage
Loans as evidenced by the consummation of the transactions contemplated by
this
Agreement, or if required, such approval has been obtained prior to the related
Closing Date;
(i) Selection
Process.
The
Mortgage Loans were not selected in a manner so as to affect adversely the
interests of the Purchaser;
(j) Pool
Characteristics.
With
respect to each Mortgage Loan Package, the Mortgage Loan characteristics set
forth on Exhibit 2 to the related Assignment and Conveyance are true and
complete.
(k) No
Untrue Information.
Neither
this Agreement (with the exception of sub-part (j) of this Section) nor any
statement, report or other document furnished or to be furnished pursuant to
this Agreement or in connection with the transactions contemplated hereby
contains any material untrue statement of fact regarding the Company or omits
to
state a material fact necessary to make the statements contained therein
regarding the Seller not misleading;
-17-
(l)
Sale
Treatment.
The
Company has determined that the disposition of the Mortgage Loans pursuant
to
this Agreement will be afforded sale treatment for accounting and tax
purposes;
(m) Financial
Statements.
The
Company has delivered to the Purchaser financial statements as to its last
three
complete fiscal years and any later quarter ended more than 60 days prior to
the
execution of this Agreement. All such financial statements fairly present the
pertinent results of operations and changes in financial position at the end
of
each such period of the Company and its subsidiaries and have been prepared
in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as set forth in the notes thereto.
There
has been no change in the business, operations, financial condition, properties
or assets of the Company since the date of the Company’s financial statements
that would have a material adverse effect on its ability to perform its
obligations under this Agreement.;
(n) No
Brokers’ Fees.
The
Company has not dealt with any broker, investment banker, agent or other person
that may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans;
(o) Insured
Depository Institution Representations.
Company
is an “insured depository institution” as that term is defined in Section
1813(c)(2) of Title 12 of the United States Code, as amended, and accordingly,
Company makes the following additional representations and
warranties:
(i) This
Agreement between Purchaser and Company conforms to all applicable statutory
and
regulatory requirements; and
(ii) This
Agreement is (1) executed contemporaneously with the agreement reached by
Purchaser and Company, and (2) an official record of the Company. A copy of
such
resolution, certified by a vice president or higher officer of Company has
been
provided to Purchaser.
|
Section
3.02
|
Representations
and Warranties Regarding Individual Mortgage Loans.
|
As
to
each Mortgage Loan, the Company hereby represents and warrants to the Purchaser
that as of the related Closing Date:
(a) Mortgage
Loans as Described.
The
information set forth in the Mortgage Loan Schedule is materially complete,
true
and correct;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor
has
any payment under the Mortgage Loan been delinquent for 30 days or more in
the
12 months preceding the related Closing Date. The first Monthly Payment was
made
with respect to the Mortgage Loan within 30 days of its Due Date;
-18-
(c) No
Outstanding Charges.
There
are no material defaults in complying with the terms of the Mortgage, and all
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due and
owing have been paid, or, with respect to each Escrow Mortgage Loan, an escrow
of funds has been established in an amount sufficient to pay for every such
item
which remains unpaid and which has been assessed but is not yet due and payable.
The Company has not advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the Mortgage Loan proceeds, whichever is earlier, to the day
which precedes by one month the Due Date of the first installment of principal
and interest;
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect, except by a written instrument which has been
recorded, if necessary to protect the interests of the Purchaser and which
has
been delivered to the Custodian. The substance of any such waiver, alteration
or
modification has been approved by the issuer of any related PMI Policy and
the
title insurer, to the extent required by the policy, and its terms are reflected
on the Mortgage Loan Schedule. No Mortgagor has been released, in whole or
in
part, except in connection with an assumption agreement approved by the issuer
of any related PMI Policy and the title insurer, to the extent required by
the
policy, and which assumption agreement is part of the Mortgage Loan File
delivered to the Custodian and the terms of which are reflected in the Mortgage
Loan Schedule;
(e) No
Defenses.
The
Mortgage Loan is not subject to any right of rescission, set-off, counterclaim
or defense, including without limitation the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or federal bankruptcy or insolvency proceeding, or was subject to
a
foreclosure proceeding, at the time the Mortgage Loan was originated or during
the 24 months prior to origination;
(f) Hazard
Insurance.
With
respect to Mortgage Loans other than Cooperative Loans, pursuant to the terms
of
the Mortgage, all buildings or other improvements upon the Mortgaged Property
are insured by a generally acceptable insurer against loss by fire, hazards
of
extended coverage and such other hazards as are customary in the area where
the
Mortgaged Property is located pursuant to insurance policies conforming to
the
requirements of Xxxxxx Mae and Xxxxxxx Mac. If, upon origination of the Mortgage
Loan (other than a Cooperative Loan), the Mortgaged Property was in an area
identified in the Federal Register by the Federal Emergency Management Agency
as
having special flood hazards (and such flood insurance has been made available)
a flood insurance policy meeting the requirements of the current guidelines
of
the Federal Flood Insurance Administration is in effect which policy conforms
to
the requirements of Xxxxxx Mae and Xxxxxxx Mac. With respect to each Cooperative
Loan, the related Cooperative Project is insured by a generally acceptable
insurer against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Cooperative Project is located
pursuant to insurance policies conforming to the requirements of Xxxxxx Mae
and
Xxxxxxx Mac. All individual insurance policies contain a standard mortgagee
clause naming the Company and its successors and assigns as mortgagee, and
all
premiums thereon have been paid. The Mortgage obligates the Mortgagor thereunder
to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and
on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to
obtain and maintain such insurance at such Mortgagor’s cost and expense, and to
seek reimbursement therefor from the Mortgagor. Where required by state law
or
regulation, with respect to Mortgage Loans other than Cooperative Loans, the
Mortgagor has been given an opportunity to choose the carrier of the required
hazard insurance, provided the policy is not a “master” or “blanket” hazard
insurance policy covering the common facilities of a planned unit development.
The hazard insurance policy is the valid and binding obligation of the insurer,
is in full force and effect, and will be in full force and effect and inure
to
the benefit of the Purchaser upon the consummation of the transactions
contemplated by this Agreement. The Company has not engaged in, and has no
knowledge of the Mortgagor’s or any subservicer’s having engaged in, any act or
omission which would impair the coverage of any such policy, the benefits of
the
endorsement provided for herein, or the validity and binding effect of either,
including, without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the
Company;
-19-
(g) Compliance
with Applicable Laws.
Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to all
applicable predatory and abusive lending laws and any and all requirements
of
any federal, state or local law (including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, disclosure laws, all applicable predatory and abusive
lending laws or unfair and deceptive practices laws) applicable to the Mortgage
Loan have been complied with, and the Company shall maintain in its possession,
available for the Purchaser’s inspection, and shall deliver to the Purchaser
upon demand, evidence of compliance with all such requirements.
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission. The
Company has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Location
and Type of Mortgaged Property.
The
Mortgaged Property (other than with respect to a Cooperative Loan) is a fee
simple property. The Mortgaged Property or, with respect to each Cooperative
Loan, Cooperative Unit is located in the state identified in the related
Mortgage Loan Schedule and consists of a single parcel of real property with
a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a low-rise condominium project,
or a Cooperative Unit, or an individual unit in a planned unit development,
provided, however, that (I) any condominium unit or planned unit development
shall conform with the Company’s Underwriting Guidelines regarding such
dwellings, and (II) that no residence or dwelling is a mobile home or
manufactured housing. No portion of the Mortgaged Property or, with respect
to
each Cooperative Loan, the Cooperative Unit is used for commercial purposes;
-20-
(j) Valid
First Lien.
The
Mortgage (other than with respect to a Cooperative Loan) is a valid, subsisting,
enforceable and perfected first priority lien and first priority security
interest on the Mortgaged Property, including all buildings on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating
and
air conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time with respect to the
foregoing. The lien of the Mortgage (other than with respect to a Cooperative
Loan) is subject only to:
(1) the
lien
of current real property taxes and assessments not yet due and
payable;
(2) covenants,
conditions and restrictions, rights of way, easements and other matters of
the
public record as of the date of recording acceptable to mortgage lending
institutions generally and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan and (i)
referred to or to otherwise considered in the appraisal made for the originator
of the Mortgage Loan or (ii) which do not adversely affect the Appraised Value
of the Mortgaged Property set forth in such appraisal; and
(3) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein and the Company has full right to sell and assign
the same to the Purchaser. The Mortgaged Property was not, as of the date of
origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed
to
secured debt or other security instrument creating a lien subordinate to the
lien of the Mortgage;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage are genuine, and each is the legal, valid and
binding obligation of the maker thereof enforceable in accordance with its
terms
except as enforceability may be limited by bankruptcy, insolvency or
reorganization. All parties to the Mortgage Note and the Mortgage and any other
related agreement had legal capacity to enter into the Mortgage Loan and to
execute and deliver the Mortgage Note and the Mortgage and any other related
agreement, and the Mortgage Note, the Mortgage and any other related agreement
have been duly and properly executed by such parties. The Company has reviewed
all of the documents constituting the Servicing File and has made such inquiries
as it deems necessary to make and confirm the accuracy of the representations
set forth herein;
-21-
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied with.
All costs, fees and expenses incurred in making or closing the Mortgage Loan
and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m)
Ownership.
The
Company is the sole owner of record and holder of the Mortgage Loan. The
Mortgage Loan is not assigned or pledged, and the Company has good and
marketable title thereto, and has full right to transfer and sell the Mortgage
Loan therein to the Purchaser free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security interest, and
has full right and authority subject to no interest or participation of, or
agreement with, any other party, to sell and assign each Mortgage Loan pursuant
to this Agreement;
(n) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the Mortgaged
Property or with respect to each Cooperative Loan, the Cooperative Unit, is
located, and (2) organized under the laws of such state, or (3) qualified to
do
business in such state, or (4) federal savings and loan associations or national
banks having principal offices in such state, or (5) not doing business in
such
state;
(o) LTV,
PMI Policy.
If the
LTV of the Mortgage Loan is more than 80% (an “80%
Loan”)
either
(i) the Mortgage Loan will be insured as to payment defaults by a PMI Policy
acceptable to Xxxxxx Xxx until the LTV of such Mortgage Loan is reduced to
80%
(a “PMI
Loan”)
or
(ii) such Mortgage Loan is listed on an exhibit to the applicable Assignment
and
Conveyance. All provisions of such PMI Policy have been and are being complied
with, such policy is in full force and effect, and all premiums due thereunder
have been paid. No action, inaction, or event has occurred and no state of
facts
exists that has, or will result in the exclusion from, denial of, or defense
to
coverage. Any Mortgage Loan subject to a PMI Policy obligates the Mortgagor
thereunder to maintain the PMI Policy and to pay all premiums and charges in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan as set
forth on the Mortgage Loan Schedule is net of any such insurance premium. All
information provided by the Company to the PMI Policy insurer is accurate and
complete. The Company has notified the PMI Policy insurer of the sale of the
Mortgage Loan to the Purchaser. The Company has no knowledge of any potential
cancellation or rescission of the PMI Policy and has had no dialogue with the
PMI Policy insurer regarding any issues or circumstances which may result in
a
cancellation or rescission of the PMI Policy;
-22-
(p) Title
Insurance.
The
Mortgage Loan (other than each Cooperative Loan) is covered by an ALTA lender’s
title insurance policy or other generally acceptable form of policy of insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Company, its successors and
assigns, as to the first priority lien, as applicable, of the Mortgage, in
the
original principal amount of the Mortgage Loan, subject only to the exceptions
contained in clauses (1), (2) and (3) of paragraph (j) of this Section 3.02.
Where required by state law or regulation, the Mortgagor has been given the
opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property or
any
interest therein. The Company is the sole insured of such lender’s title
insurance policy, and such lender’s title insurance policy is in full force and
effect and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender’s
title insurance policy, and no prior holder of the Mortgage, including the
Company, has done, by act or omission, anything which would impair the coverage
of such lender’s title insurance policy including without limitation, no
unlawful fee, commission, kickback or other unlawful compensation or value
of
any kind has been or will be received, retained or realized by any attorney,
firm or other person or entity, and no such unlawful items have been received,
retained or realized by the Company;
(q) No
Defaults.
There
is no material default, breach, violation or event of acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration, and neither
the Company nor its predecessors have waived any default, breach, violation
or
event of acceleration;
(r) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under the law could give
rise to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property or, with respect to each Cooperative Loan,
the
Cooperative Unit and no improvements on adjoining properties encroach upon
the
Mortgaged Property or, with respect to each Cooperative Loan, the Cooperative
Unit. No improvement located on or being part of the Mortgaged Property or,
with
respect to each Cooperative Loan, the Cooperative Unit is in violation of any
applicable zoning law or regulation;
(t) Origination:
Payment Terms.
At the
time the Mortgage Loan was originated, the originator was a mortgagee approved
by the Secretary of Housing and Urban Development pursuant to Sections 203
and
211 of the National Housing Act or a savings and loan association, a savings
bank, a commercial bank or similar banking institution which is supervised
and
examined by a Federal or State authority. The Mortgage Interest Rate is (a)
with
respect to fixed rate mortgage loans, the fixed interest rate set forth in
the
Mortgage Note and (b) with respect to ARM Mortgage Loans, adjusted on each
Interest Rate Adjustment Date to equal the Index plus the Gross Margin, rounded
up. Except with respect to interest only Mortgage Loans, the Mortgage Note
is
payable each month in equal monthly installments of principal and interest,
with
interest calculated and payable in arrears, and except for any balloon Mortgage
Loan, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than thirty years from commencement
of
amortization. The interest only Mortgage Loans are payable in equal monthly
installments of interest for the initial three or five year period (as
applicable) and thereafter payable each month in equal monthly installments
of
principal and interest, with interest calculated and payable in arrears
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than thirty years from commencement of
amortization. No Mortgage Loan provides for negative amortization.
-23-
(u) Customary
Provisions.
With
respect to each Mortgage Loan other than a Cooperative Loan, the Mortgage
contains customary and enforceable provisions such as to render the rights
and
remedies of the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided thereby, including,
(i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale,
and (ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on
a
Mortgage Loan and foreclosure on, or trustee’s sale of, the Mortgaged Property
pursuant to the proper procedures, the holder of the Mortgage Loan will be
able
to deliver good and merchantable title to the Mortgaged Property. To the best
of
the Company’s knowledge, there is no homestead or other exemption available to a
Mortgagor which would interfere with the right to sell the Mortgaged Property
at
a trustee’s sale or the right to foreclose the Mortgage;
(v) Conformance
with Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Company’s underwriting
guidelines in effect at the time the Mortgage Loan was originated, a copy of
which underwriting guidelines are attached as Exhibit H
hereto.
The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx
Mae;
(w) Occupancy
of the Mortgaged Property or Cooperative Unit.
As of
the date of origination of the related Mortgage Loan, the Mortgaged Property
or
Cooperative Unit, as applicable is lawfully occupied under applicable law.
All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Property or Cooperative Unit,
as applicable, and, with respect to the use and occupancy of the same, including
but not limited to certificates of occupancy and fire underwriting certificates,
have been made or obtained from the appropriate authorities;
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in (j) above;
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
-24-
(z) Acceptable
Investment.
The
Company has no knowledge of any circumstances or conditions with respect to
the
Mortgage, the Mortgaged Property, or Cooperative Unit, as applicable, the
Mortgagor or the Mortgagor’s credit standing that can reasonably be expected to
cause private institutional investors using reasonable business judgment to
regard the Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan
to become delinquent, or adversely affect the value or marketability of the
Mortgage Loan;
(aa) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered for the Mortgage Loan by the Company under this
Agreement as set forth in Exhibit
C
attached
hereto have been delivered to the Custodian. The Company is in possession of
a
complete, true and accurate Mortgage File in compliance with Exhibit
B,
except
for such documents the originals of which have been delivered to the
Custodian;
(bb) Condominiums/Planned
Unit Developments.
If the
Mortgaged Property is a condominium unit or a planned unit development (other
than a de minimis planned unit development) such condominium or planned unit
development project meets Xxxxxx Xxx eligibility requirements for sale to Xxxxxx
Mae or is located in a condominium or planned unit development project which
has
received Xxxxxx Xxx project approval and the representations and warranties
required by Xxxxxx Mae with respect to such condominium or planned unit
development have been made and remain true and correct in all
respects;
(cc) Transfer
of Mortgage Loans.
The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) Due
on
Sale.
For
each fixed rate Mortgage Loan and for each ARM Mortgage Loan prior to the first
Interest Rate Adjustment Date, the Mortgage, contains an enforceable provision
for the acceleration of the payment of the unpaid principal balance of the
Mortgage Loan in the event that the Mortgaged Property or Cooperative Shares,
as
applicable, is sold or transferred without the prior written consent of the
Mortgagee thereunder;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Company, the Mortgagor or anyone on behalf of the Mortgagor, or paid
by
any source other than the Mortgagor nor does it contain any other similar
provisions currently in effect which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(ff) Consolidation
of Future Advances.
Any
future advances made prior to the related Cut-off Date have been consolidated
with the outstanding principal amount secured by the Mortgage, and the secured
principal amount, as consolidated, bears a single interest rate and single
repayment term. The lien of the Mortgage securing the consolidated principal
amount is expressly insured as having first lien priority by a title insurance
policy, an endorsement to the policy insuring the mortgagee’s consolidated
interest or by other title evidence acceptable to Xxxxxx Xxx and Xxxxxxx Mac.
The consolidated principal amount does not exceed the original principal amount
of the Mortgage Loan;
-25-
(gg) Mortgaged
Property Undamaged.
At
origination, there was no proceeding pending or threatened for the total or
partial condemnation of the Mortgaged Property or the Cooperative Project,
as
applicable. The Mortgaged Property or the Cooperative Project, as applicable,
is
undamaged by waste, fire, earthquake or earth movement, windstorm, flood,
tornado or other casualty so as to affect adversely the value of the Mortgaged
Property or the Cooperative Project, as applicable, as security for the Mortgage
Loan or the use for which the premises were intended;
(hh) Collection
Practices; Escrow Deposits; ARM Adjustments.
The
origination and collection practices used with respect to the Mortgage Loan
have
been in accordance with Accepted Servicing Practices, in all respects in
compliance with all applicable laws and regulations. With respect to escrow
deposits and Escrow Payments, all such payments are in the possession of the
Company and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal law.
An
escrow of funds is not prohibited by applicable law and has been established
in
an amount sufficient to pay for every item which remains unpaid and which has
been assessed but is not yet due and payable. No escrow deposits or Escrow
Payments or other charges or payments due the Seller have been capitalized
under
the Mortgage or the Mortgage Note. All Mortgage Interest Rate adjustments have
been made in strict compliance with state and federal law and the terms of
the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(ii) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgage Property or the
Cooperative Unit, as applicable, signed prior to the approval of the Mortgage
Loan application by a Qualified Appraiser. Each Mortgage File contains an
appraisal of the related Mortgage Property or the Cooperative Unit, as
applicable, signed prior to the approval of the Mortgage Loan application by
a
Qualified Appraiser. The Appraised Value as set forth on the Appraisal
accurately reflects the value of the Mortgage Property, and takes into
consideration the condition of the Mortgaged Property, all improvements made
to
the Mortgaged Property, and the market value of similar mortgaged properties
in
the area where the Mortgaged Property is located. Any variance of 15% or more
in
the value of the Mortgaged Property from the Appraised Value shall be deemed
to
be material.
(jj) Soldiers’
and Sailors’ Relief Act.
The
Mortgagor has not notified the Company, and the Company has no knowledge of
any
relief requested or allowed to the Mortgagor under the Soldiers’ and Sailors’
Civil Relief Act of 1940;
(kk) Environmental
Matters.
To the
best of the Company’s knowledge, the Mortgaged Property or the Cooperative Unit,
as applicable, is free from any and all toxic or hazardous substances and there
exists no violation of any local, state or federal environmental law, rule
or
regulation. There is no pending action or proceeding directly involving any
Mortgaged Property or Cooperative Unit, as applicable, of which the Company
is
aware in which compliance with any environmental law, rule or regulation is
an
issue; and to the best of the Company’s knowledge, nothing further remains to be
done to satisfy in full all requirements of each such law, rule or regulation
constituting a prerequisite to use and enjoyment of said property;
-26-
(ll) Conversion
to Fixed Interest Rate.
With
respect to each ARM Mortgage Loan; the Mortgage Loan does not contain a
provision permitting or requiring conversion to a fixed interest rate Mortgage
Loan.
(mm) No
Construction Loans.
No
Mortgage Loan was made in connection with (i) the construction or rehabilitation
of a Mortgaged Property or Cooperative Unit, as applicable or (ii) facilitating
the trade-in or exchange of a Mortgaged Property;
(nn) No
Denial of Insurance.
No
action, inaction, or event has occurred and no state of facts exists or has
existed that has resulted or will result in the exclusion from, denial of,
or
defense to coverage under any applicable special hazard insurance policy, PMI
Policy, or bankruptcy bond, irrespective of the cause of such failure of
coverage. In connection with the placement of any such insurance, no commission,
fee, or other compensation has been or will be received by the Company or any
designee of the Company or any corporation in which the Company or any officer,
director, or employee had a financial interest at the time of placement of
such
insurance;
(oo) Regarding
the Mortgagor.
The
Mortgagor is one or more natural persons and/or trustees for an Illinois land
trust or a trustee under a “living trust” and such “living trust” is in
compliance with Xxxxxx Xxx guidelines for such trusts.
(pp) Texas
Home Equity Loans.
With
respect to any Mortgage Loan which is a Texas Home Equity Loan, any and all
requirements of Section 50, Article XVI of the Texas Constitution
applicable to Texas Home Equity Loans which were in effect at the time of the
origination of the Mortgage Loan have been complied with. Specifically, without
limiting the generality of the foregoing, any fees paid in connection with
such
Mortgage Loan in order for the Mortgagor to receive a reduced interest rate
are
not required to be included in the calculation of the aggregate fees pursuant
to
Section 50(a)(6)(E) of the Texas Constitution.
(qq) Simple
Interest Mortgage Loans.
None of
the Mortgage Loans are simple interest Mortgage Loans.
(rr) Single
Premium Credit Life Insurance.
None of
the proceeds of the Mortgage Loan were used to finance single-premium credit
life insurance policies.
(ss) Tax
Service Contract
The
Company has obtained a life of loan, transferable real estate Tax Service
Contract with an Approved Tax Service Contract Provider on each Mortgage Loan
and such contract is assignable without penalty, premium or cost to the
Purchaser. Such Tax Service Contract shall contain complete and accurate
information with respect to the Mortgage Loan and the Mortgaged
Property;
(tt) Flood
Certification Contract.
The
Company has obtained a life of loan, transferable flood certification contract
for each Mortgage Loan and such contract is assignable without penalty, premium
or cost to the Purchaser. Such Tax Service Contract shall contain complete
and
accurate information with respect to the Mortgage Loan and the Mortgaged
Property;
-27-
(uu) Recordation.
Each
original Mortgage was recorded and, except for those Mortgage Loans subject
to
the MERS identification system, all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded in
the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Company, or is in the process of being
recorded;
(vv) FICO
Scores.
Each
Mortgage Loan has a non-zero FICO score;
(ww) Prepayment
Fee.
With
respect to each Mortgage Loan that has a prepayment fee feature, each such
prepayment fee is enforceable and will be enforced by the Company, and each
prepayment penalty in permitted pursuant to federal, state and local law,
including the Parity Act of 1982. No Mortgage Loan will impose a prepayment
penalty for a term in excess of five years from the date such Mortgage Loan
was
originated. Except as otherwise set forth in the Mortgage Loan Schedule, with
respect to each Mortgage Loan that contains a prepayment fee, such prepayment
fee is at least equal to the lesser of (A) the maximum amount permitted under
applicable law and (B) six months interest at the related Mortgage Interest
Rate
on the amount prepaid in excess of 20% of the original principal balance of
such
Mortgage Loan; and
(xx) Predatory
Lending Regulations; High Cost Loans.
None of
the Mortgage Loans are classified as (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“predatory”, or “covered” loans under any other applicable state, federal or
local law
(yy) Cooperative
Loans.
With
respect to each Cooperative Loan the Company represents and
warrants:
(i) the
Cooperative Loan is secured by a valid, subsisting, enforceable and perfected
first lien on the corporation stock, shares or membership certificate issued
to
the related Mortgagor with respect to such Cooperative Loan. The lien of the
Pledge Agreement is subject only to the Cooperative Corporation’s lien against
such corporation stock, shares or membership certificate for unpaid assessments
of the Cooperative Corporation to the extent required by applicable law. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Cooperative Loan establishes and creates a
valid, subsisting and enforceable first lien and first priority security
interest on the property described therein and the Company has full right to
sell and assign the same to the Purchaser. The Cooperative Unit was not, as
of
the date of origination of the Cooperative Loan, subject to a mortgage, deed
of
trust, deed to secure debt or other security instrument creating a lien
subordinate to the lien of the Pledge Agreement.
(ii) There
is
no proceeding pending or threatened for the total or partial condemnation of
the
building owned by the applicable Cooperative Corporation (the “Underlying
Mortgaged Property”).
The
Underlying Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty so as to affect adversely
the value of the Underlying Mortgaged Property as security for the mortgage
loan
on such Underlying Mortgaged Property (the “Cooperative
Mortgage”)
or the
use for which the premises were intended.
-28-
(iii) There
is
no default, breach, violation or event of acceleration existing under the
Cooperative Mortgage or the mortgage note related thereto and no event which,
with the passage of time or with notice and the expiration of any grace or
cure
period, would constitute a default, breach, violation or event of
acceleration.
(iv) The
Cooperative Corporation has been duly organized and is validly existing and
in
good standing under the laws of the jurisdiction of its formation. The
Cooperative Corporation has requisite power and authority to (i) own its
properties, and (ii) transact the business in which it is now engaged. The
Cooperative Corporation possesses all rights, licenses, permits and
authorizations, governmental or otherwise, necessary to entitle it to own its
properties and to transact the businesses in which is now engaged.
(v) The
Cooperative Corporation complies in all material respects with all applicable
legal requirements. The Cooperative Corporation is not in default or violation
of any order, writ, injunction, decree or demand of any governmental authority,
the violation of which might materially adversely affect the condition
(financial or otherwise) or business of the Cooperative Corporation.
(vi) The
Company has delivered to the Purchaser or its designee each of the following
documents (collectively, the “Cooperative
Loan Documents”):
(i) the Cooperative Loan Note, duly endorsed in accordance with the
endorsement requirements for Mortgage Notes set forth in this Agreement,
(ii) the Pledge Agreement, accompanied by an Assignment of Pledge
Agreement, in recordable form, (iii) the corporation stock, shares or
membership certificate accompanied by a stock power which authorizes the lender
to transfer shares in the event of a default under the Cooperative Loan
Documents, (iv) the proprietary lease or occupancy agreement, accompanied
by an assignment in blank of such proprietary lease, (v) a recognition
agreement executed by the Cooperative Corporation, which requires the
Cooperative Corporation to recognize the rights of the lender and its successors
in interest and assigns, under the Cooperative Loan, accompanied by an
assignment of such recognition agreement in blank, (vi) UCC-1 financing
statements with recording information thereon from the appropriate state and
county recording offices if necessary to perfect the security interest of the
Cooperative Loan under the Uniform Commercial Code in the state in which the
Cooperative Project is located, accompanied by UCC-3 financing statements
executed in blank for recordation of the change in the secured party thereunder,
and (vii) any guarantees, if applicable. The Cooperative Loan Documents are
assignable to the Purchaser and its successors and assigns and have been duly
assigned to the Purchaser in accordance with this
sub-section (6).
-29-
(vii) The
Pledge Agreement contains customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
(zz) No
Fraud.
Company
does not have actual knowledge of any material misrepresentation, fraud or
similar occurrence with respect to a Mortgage Loan that has taken place on
the
part of any person including without limitation the Mortgagor, any appraiser,
any builder or developer, or any other party involved in the origination of
the
Mortgage Loan or, in the application of any insurance in relation to such
Mortgage Loan; no predatory or deceptive lending practices, including, without
limitation, the extension of credit without regard to the ability of the
borrower to repay and the extension of credit which has no apparent benefit
to
the borrower, were employed in the origination of the Mortgage Loan. The
documents, instruments and agreements submitted for loan underwriting were
not
falsified and contain no untrue statement of material fact or omit to state
a
material fact required to be stated therein or necessary to make the information
and statements therein not misleading.
(aaa) Mortgagor
Acknowledgment.
The
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of adjustable rate mortgage loans. The Company shall maintain such statement
in
the Mortgage File.
(bbb) Compliance
with Anti-Money Laundering Laws.
The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); the Company has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor
and
the origin of the assets used by the said Mortgagor to purchase the property
in
question, and maintains, and will maintain, sufficient information to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering
Laws.
(ccc) Credit
Reporting.
The
Company has fully furnished in accordance with the Fair Credit Reporting Act
and
its implementing regulations, accurate and complete information on the Mortgagor
credit files to Equifax, Experian and Trans Union Credit Information Company
on
a monthly basis.
|
Section
3.03
|
Remedies
for Breach of Representations and Warranties.
|
(a) It
is
understood and agreed that the representations and warranties set forth in
Sections 3.01 and 3.02 shall survive the sale of the Mortgage Loans to the
Purchaser and the delivery of the Mortgage Loan Documents to the Custodian
and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Mortgage File. Upon discovery by either
the Company or the Purchaser of a breach of any of the foregoing representations
and warranties which materially and adversely affects the value of the Mortgage
Loans or the interest of the Purchaser, or which materially and adversely
affects the interests of Purchaser in the related Mortgage Loan in the case
of a
representation and warranty relating to a particular Mortgage Loan (in the
case
of any of the foregoing, a “Breach”),
the
party discovering such Breach shall give prompt written notice to the
other.
-30-
Within
60
days of the earlier of either discovery by or notice to the Company of any
Breach of a representation or warranty, the Company shall use its best efforts
promptly to cure such Breach in all material respects and, if such Breach cannot
be cured, the Company shall, at the Purchaser’s option and subject to Section
3.04, repurchase such Mortgage Loan at the Repurchase Price. In the event that
a
Breach shall involve any representation or warranty set forth in Section 3.01,
and such Breach cannot be cured within 60 days of the earlier of either
discovery by or notice to the Company of such Breach, all of the Mortgage Loans
shall, at the Purchaser’s option and subject to Section 3.04, be repurchased by
the Company at the Repurchase Price. However, if the Breach shall involve a
representation or warranty set forth in Section 3.02 and the Company discovers
or receives notice of any such Breach within 120 days of the related Closing
Date, the Company shall, at the Purchaser’s option and provided that the Company
has a Qualified Substitute Mortgage Loan, rather than repurchase the Mortgage
Loan as provided above, remove such Mortgage Loan (a “Deleted
Mortgage Loan”)
and
substitute in its place a Qualified Substitute Mortgage Loan or Loans, provided
that any such substitution shall be effected not later than 120 days after
the
related Closing Date. If the Company has no Qualified Substitute Mortgage Loan,
it shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage
Loan or Loans pursuant to the foregoing provisions of this Section 3.03 shall
be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to Purchaser on the next scheduled Remittance Date,
after
deducting therefrom any amount received in respect of such repurchased Mortgage
Loan or Loans and being held in the Custodial Account for future
distribution.
At
the
time of repurchase or substitution, the Purchaser and the Company shall arrange
for the reassignment of the Deleted Mortgage Loan to the Company and the
delivery to the Company of any documents held by the Custodian relating to
the
Deleted Mortgage Loan. In the event of a repurchase or substitution, the Company
shall, simultaneously with such reassignment, give written notice to the
Purchaser that such repurchase or substitution has taken place, amend the
related Mortgage Loan Schedule to reflect the withdrawal of the Deleted Mortgage
Loan from this Agreement, and, in the case of substitution, identify a Qualified
Substitute Mortgage Loan and amend the related Mortgage Loan Schedule to reflect
the addition of such Qualified Substitute Mortgage Loan to this Agreement.
In
connection with any such substitution, the Company shall be deemed to have
made
as to such Qualified Substitute Mortgage Loan the representations and warranties
set forth in this Agreement except that all such representations and warranties
set forth in this Agreement shall be deemed made as of the date of such
substitution. The Company shall effect such substitution by delivering to the
Custodian for such Qualified Substitute Mortgage Loan the documents required
by
Section 2.03, with the Mortgage Note endorsed as required by Section 2.03.
No
substitution will be made in any calendar month after the Determination Date
for
such month. The Company shall deposit in the Custodial Account the Monthly
Payment less the Servicing Fee due on such Qualified Substitute Mortgage Loan
or
Loans in the month following the date of such substitution. Monthly Payments
due
with respect to Qualified Substitute Mortgage Loans in the month of substitution
shall be retained by the Company. For the month of substitution, distributions
to Purchaser shall include the Monthly Payment due on any Deleted Mortgage
Loan
in the month of substitution, and the Company shall thereafter be entitled
to
retain all amounts subsequently received by the Company in respect of such
Deleted Mortgage Loan.
-31-
For
any
month in which the Company substitutes a Qualified Substitute Mortgage Loan
for
a Deleted Mortgage Loan, the Company shall determine the amount (if any) by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all Deleted Mortgage Loans (after application of scheduled principal
payments due in the month of substitution). The amount of such shortfall shall
be distributed by the Company in the month of substitution pursuant to Section
5.01. Accordingly, on the date of such substitution, the Company shall deposit
from its own funds into the Custodial Account an amount equal to the amount
of
such shortfall.
In
addition to such repurchase or substitution obligation, the Company shall
indemnify the Purchaser and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a Breach
of
the Company representations and warranties contained in this Agreement. It
is
understood and agreed that the obligations of the Company set forth in this
Section 3.03 to cure, substitute for or repurchase a defective Mortgage Loan
and
to indemnify the Purchaser as provided in this Section 3.03 constitute the
sole
remedies of the Purchaser respecting a Breach of the foregoing representations
and warranties.
Any
cause
of action against the Company relating to or arising out of the Breach of any
representations and warranties made in Sections 3.01 and 3.02 shall accrue
as to
any Mortgage Loan upon (i) discovery of such Breach by the Purchaser or notice
thereof by the Company to the Purchaser, (ii) failures by the Company to cure
such Breach or repurchase such Mortgage Loan as specified above, and (iii)
demand upon the Company by the Purchaser for compliance with this
Agreement.
(b) With
respect to any Mortgage Loan, if the related Mortgagor has not made the Mortgage
Loan’s first or second Monthly Payment due to the Purchaser after the related
Closing Date within 30 days of its first Due Date (a “First
Payment Default”),
the
Company shall promptly repurchase such Mortgage Loan from the Purchaser in
accordance with Section 3.03(a) hereof. Company shall promptly notify the
Purchaser of the occurrence of a First Payment Default.
|
Section
3.04
|
Restrictions
and Requirements Applicable in the Event that
a Mortgage Loan is Acquired by a
REMIC.
|
In
the
event that any Mortgage Loan is held by a REMIC, notwithstanding any contrary
provision of this Agreement, the following provisions shall be applicable to
such Mortgage Loan:
|
(A)
|
Repurchase
of Mortgage Loans.
|
With
respect to any Mortgage Loan that is not in default or as to which no default
is
imminent, no repurchase or substitution pursuant to Subsection 3.03, 3.05 or
7.02 shall be made, unless, if so required by the applicable REMIC Documents
the
Company has obtained an Opinion of Counsel to the effect that such repurchase
will not (i) result in the imposition of taxes on “prohibited transactions” of
such REMIC (as defined in Section 860F of the Code) or otherwise subject the
REMIC to tax, or (ii) cause the REMIC to fail to qualify as a REMIC at any
time.
-32-
|
(B)
|
General
Servicing Obligations.
|
The
Company shall sell any REO Property within three years after its acquisition
by
the REMIC unless (i) the Company applies for an extension of such three-year
period from the Internal Revenue Service pursuant to the REMIC Provisions and
Code Section 856(e)(3), in which event such REO Property shall be sold within
the applicable extension period, or (ii) the Company obtains for the Purchaser
an Opinion of Counsel, addressed to the Purchaser and the Company, to the effect
that the holding by the REMIC of such REO Property subsequent to such three
year
period will not result in the imposition of taxes on “prohibited transactions”
as defined in Section 860F of the Code or cause the REMIC to fail to qualify
as
a REMIC under the REMIC Provisions or comparable provisions of relevant state
laws at any time. The Company shall manage, conserve, protect and operate each
REO Property for the Purchaser solely for the purpose of its prompt disposition
and sale in a manner which does not cause such REO Property to fail to qualify
as “foreclosure property” within the meaning of Section 860G(a)(8) or result in
the receipt by the REMIC of any “income from non-permitted assets” within the
meaning of Section 860F(a)(2)(B) of the Code or any “net income from foreclosure
property” which is subject to taxation under Section 860G(a)(1) of the Code.
Pursuant to its efforts to sell such REO Property, the Company shall either
itself or through an agent selected by the Company protect and conserve such
REO
Property in the same manner and to such extent as is customary in the locality
where such REO Property is located and may, incident to its conservation and
protection of the interests of the Purchaser, rent the same, or any part
thereof, as the Company deems to be in the best interest of the Company and
the
Purchaser for the period prior to the sale of such REO Property; provided,
however, that any rent received or accrued with respect to such REO Property
qualifies as “rents from real property” as defined in Section 856(d) of the
Code.
|
(C)
|
Additional
Covenants.
|
In
addition to the provision set forth in this Section 3.04, if a REMIC election
is
made with respect to the arrangement under which any of the Mortgage Loans
or
REO Properties are held, then, with respect to such Mortgage Loans and/or REO
Properties, and notwithstanding the terms of this Agreement, the Company shall
not take any action, cause the REMIC to take any action or fail to take (or
fail
to cause to be taken) any action that, under the REMIC Provisions, if taken
or
not taken, as the case may be, could (i) endanger the status of the REMIC as
a
REMIC or (ii) result in the imposition of a tax upon the REMIC (including but
not limited to the tax on “prohibited transactions” as defined in Section
860F(a)(2) of the Code and the tax on “contributions” to a REMIC set forth in
Section 860G(d) of the Code) unless the Company has received an Opinion of
Counsel (at the expense of the party seeking to take such action) to the effect
that the contemplated action will not endanger such REMIC status or result
in
the imposition of any such tax.
Subject
to Section 7.01 of this Agreement, if a REMIC election is made with respect
to
the arrangement under which any Mortgage Loans or REO Properties are held,
the
Company shall amend this Agreement at the Purchaser’s expense such that it will
meet all Rating Agency requirements.
-33-
|
Section
3.05
|
Review
of Mortgage Loans.
|
To
the
extent provided for in the related Purchase Price and Terms Letter, the
Purchaser shall have the post-Closing Date right to review the Mortgage Files
and obtain BPOs on the Mortgaged Properties relating to the Mortgage Loans
to be
purchased on the related Closing Date. In addition, Purchaser shall have the
right to reject any Mortgage Loan which in the Purchaser’s reasonable
determination (i) fails to conform to Company’s Underwriting Guidelines,
provided that with respect to Mortgage Loans which do not conform with the
Underwriting Guidelines, the Purchaser will review the credit/risk profile
of
such Mortgage Loan to determine, in the Purchaser’s sole discretion, if there
may be compensating factors present that would warrant the acceptance of such
Mortgage Loan, (ii) were underwritten without verification of Mortgagor’s income
and assets (if so required under the applicable documentation program) and
there
is no credit report and FICO Score on file, (iii) the value of the Mortgaged
Property pursuant to any BPO is less than 85% of the lesser of (A) the original
appraised value of the Mortgaged Property or (B) the purchase price of the
Mortgaged Property as of the date of origination or (iv) the Purchaser does
not
deem the Mortgage Loan to be an acceptable credit risk. In the event that the
Purchaser so rejects any Mortgage Loan, the Company shall repurchase the
rejected Mortgage Loan at the Repurchase Price in the manner prescribed in
Section 3.03 upon receipt of notice from the Purchaser of the rejection of
such
Mortgage Loan. Any rejected Mortgage Loan shall be removed from the terms of
this Agreement. The Company shall make available files required by Purchaser
in
order to complete its review, including all CRA/HMDA required data fields.
To
the extent that the Purchaser’s review discloses that the Mortgage Loans do not
conform to the Underwriting Guidelines or the terms set forth in the related
Purchase Price and Terms Letter, the Purchaser may in its sole discretion
increase its due diligence review and obtain additional BPO’s or other property
evaluations.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
|
Section
4.01
|
Company
to Act as Servicer.
|
The
Company, as an independent contractor, shall service and administer the Mortgage
Loans and shall have full power and authority, acting alone, to do any and
all
things in connection with such servicing and administration which the Company
may deem necessary or desirable, consistent with the terms of this Agreement
and
with Accepted Servicing Practices.
Consistent
with the terms of this Agreement, the Company may waive, modify or vary any
term
of any Mortgage Loan or consent to the postponement of strict compliance with
any such term or in any manner grant indulgence to any Mortgagor if in the
Company’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that (a) the Company shall not make any future advances with respect
to
a Mortgage Loan and (unless the Mortgagor is in default with respect to the
Mortgage Loan or such default is, in the judgment of the Company, imminent
and
the Company has obtained the prior written consent of the Purchaser) the Company
shall not permit any modification of any material term of any Mortgage Loan
including any modifications that would change the Mortgage Interest Rate, defer
or forgive the payment of principal or interest, reduce or increase the
outstanding principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan and (b) the Company may
not
waive any prepayment penalty unless such waiver would reduce the loss severity
of a Mortgage Loan, and (c) the Company may not waive any prepayment penalty
for
the refinancing of a Mortgage Loan. In the event of any such modification which
permits the deferral of interest or principal payments on any Mortgage Loan,
the
Company shall, on the Business Day immediately preceding the Remittance Date
in
any month in which any such principal or interest payment has been deferred,
deposit in the Custodial Account from its own funds, in accordance with Section
5.03, the difference between (a) such month’s principal and one month’s interest
at the Mortgage Loan Remittance Rate on the unpaid principal balance of such
Mortgage Loan and (b) the amount paid by the Mortgagor. The Company shall be
entitled to reimbursement for such advances to the same extent as for all other
advances made pursuant to Section 5.03. Without limiting the generality of
the
foregoing, the Company shall continue, and is hereby authorized and empowered,
to execute and deliver on behalf of itself and the Purchasers, all instruments
of satisfaction or cancellation, or of partial or full release, discharge and
all other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the Company,
the
Purchaser shall furnish the Company with any powers of attorney and other
documents necessary or appropriate to enable the Company to carry out its
servicing and administrative duties under this Agreement.
-34-
In
servicing and administering the Mortgage Loans, the Company shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements of this Agreement,
and the Purchaser’s reliance on the Company.
|
Section
4.02
|
Liquidation
of Mortgage Loans.
|
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 4.01 is not paid when the same becomes due and payable, or in the event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Company shall take such action as (1) the Company would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Company shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. In the event that any payment
due under any Mortgage Loan is not postponed pursuant to Section 4.01 and
remains delinquent for a period of 90 days or any other default continues for
a
period of 90 days beyond the expiration of any grace or cure period, the Company
shall commence foreclosure proceedings, provided that, prior to commencing
foreclosure proceedings, the Company shall notify the Purchaser in writing
of
the Company’s intention to do so, and the Company shall not commence foreclosure
proceedings if the Purchaser objects to such action within 10 Business Days
of
receiving such notice and following such objection, the Company shall have
no
obligation to make Monthly Advances with respect to such Mortgage Loan. In
such
connection, the Company shall from its own funds make all necessary and proper
Servicing Advances, provided, however, that the Company shall not be required
to
expend its own funds in connection with any foreclosure or towards the
restoration or preservation of any Mortgaged Property, unless it shall determine
(a) that such preservation, restoration and/or foreclosure will increase the
proceeds of liquidation of the Mortgage Loan to Purchaser after reimbursement
to
itself for such expenses and (b) that such expenses will be recoverable by
it
either through Liquidation Proceeds (respecting which it shall have priority
for
purposes of withdrawals from the Custodial Account pursuant to Section 4.05)
or
through Insurance Proceeds (respecting which it shall have similar
priority).
-35-
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure
or
acceptance of a deed in lieu of foreclosure, in the event the Company has
reasonable cause to believe that a Mortgaged Property is contaminated by
hazardous or toxic substances or wastes, or if the Purchaser otherwise requests
an environmental inspection or review of such Mortgaged Property to be conducted
by a qualified inspector. Upon completion of the inspection, the Company shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Company shall proceed with respect to the Mortgaged Property. In the event
(a) the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes and
(b) the Purchaser directs the Company to proceed with foreclosure or
acceptance of a deed in lieu of foreclosure, the Company shall be reimbursed
for
all reasonable costs associated with such foreclosure or acceptance of a deed
in
lieu of foreclosure and any related environmental clean up costs, as applicable,
from the related Liquidation Proceeds, or if the Liquidation Proceeds are
insufficient to fully reimburse the Company, the Company shall be entitled
to be
reimbursed from amounts in the Custodial Account pursuant to Section 4.05
hereof. In the event the Purchaser directs the Company not to proceed with
foreclosure or acceptance of a deed in lieu of foreclosure, the Company shall
be
reimbursed for all Servicing Advances made with respect to the related Mortgaged
Property from the Custodial Account pursuant to Section 4.05
hereof.
|
Section
4.03
|
Collection
of Mortgage Loan Payments.
|
Continuously
from the date hereof until the principal and interest on all Mortgage Loans
are
paid in full, the Company shall proceed diligently to collect all payments
due
under each of the Mortgage Loans when the same shall become due and payable
and
shall ascertain and estimate Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loan and the Mortgaged
Property, to the end that the installments payable by the Mortgagors will be
sufficient to pay such charges as and when they become due and
payable.
|
Section
4.04
|
Establishment
of and Deposits to Custodial Account.
|
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled “IndyMac Bank, FSB in trust for the
Purchaser of Conventional Residential Conventional Residential Fixed and
Adjustable Rate Mortgage Loans, Group No. 2003-1 and various Mortgagors”. The
Custodial Account shall be established with a Qualified Depository acceptable
to
the Purchaser. Any funds deposited in the Custodial Account shall at all times
be fully insured to the full extent permitted under applicable law. Funds
deposited in the Custodial Account may be drawn on by the Company in accordance
with Section 4.05. The creation of any Custodial Account shall be evidenced
by a
certification in the form of Exhibit
D-1
hereto,
in the case of an account established with the Company, or by a letter agreement
in the form of Exhibit
D-2
hereto,
in the case of an account held by a depository other than the Company. A copy
of
such certification or letter agreement shall be furnished to the Purchaser
and,
upon request, to any subsequent Purchaser.
-36-
The
Company shall deposit in the Custodial Account on a daily basis, and retain
therein, the following collections received by the Company and payments made
by
the Company after the related Cut-off Date, other than payments of principal
and
interest due on or before the related Cut-off Date, or received by the Company
prior to the related Cut-off Date but allocable to a period subsequent
thereto:
(i) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(ii) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(iii) all
Liquidation Proceeds;
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 4.10 (other than proceeds to be held in the Escrow Account and applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 4.14), Section 4.11 and Section
4.15;
(v) all
Condemnation Proceeds which are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with Section
4.14;
(vi) any
amount required to be deposited in the Custodial Account pursuant to Section
4.01, 4.09, 5.03, 6.01 or 6.02;
(vii) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Section 3.03, 3.05 or 3.06 and all amounts required to be deposited by the
Company in connection with a shortfall in principal amount of any Qualified
Substitute Mortgage Loan pursuant to Section 3.03;
(viii) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of distribution. Such deposit shall
be
made from the Company’s own funds, without reimbursement therefor up to a
maximum amount per month of the Servicing Fee actually received for such month
for the Mortgage Loans;
-37-
(ix) any
amounts required to be deposited by the Company pursuant to Section 4.11 in
connection with the deductible clause in any blanket hazard insurance policy;
and
(x) any
amounts received with respect to or related to any REO Property and all REO
Disposition Proceeds pursuant to Section 4.16.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges and assumption
fees, to the extent permitted by Section 6.01, need not be deposited by the
Company into the Custodial Account. Any interest paid on funds deposited in
the
Custodial Account by the depository institution shall accrue to the benefit
of
the Company and the Company shall be entitled to retain and withdraw such
interest from the Custodial Account pursuant to Section 4.05.
|
Section
4.05
|
Permitted
Withdrawals From Custodial Account.
|
The
Company shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
(i) to
make
payments to the Purchaser in the amounts and in the manner provided for in
Section 5.01;
(ii) to
reimburse itself for Monthly Advances of the Company’s funds made pursuant to
Section 5.03, the Company’s right to reimburse itself pursuant to this
subclause (ii) being limited to amounts received on the related Mortgage
Loan which represent late payments of principal and/or interest respecting
which
any such advance was made, it being understood that, in the case of any such
reimbursement, the Company’s right thereto shall be prior to the rights of
Purchaser, except that, where the Company is required to repurchase a Mortgage
Loan pursuant to Section 3.03, 3.04, 3.05 or 6.02, the Company’s right
to such reimbursement shall be subsequent to the payment to the Purchaser of
the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iii) to
reimburse itself for unreimbursed Servicing Advances, and for any unpaid
Servicing Fees, the Company’s right to reimburse itself pursuant to this
subclause (iii) with respect to any Mortgage Loan being limited to related
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other
amounts as may be collected by the Company from the Mortgagor or otherwise
relating to the Mortgage Loan, it being understood that, in the case of any
such
reimbursement, the Company’s right thereto shall be prior to the rights of
Purchaser except where the Company is required to repurchase a Mortgage Loan
pursuant to Section 3.03, 3.04, 3.05 or 6.02, in which case the Company’s right
to such reimbursement shall be subsequent to the payment to the Purchasers
of
the Repurchase Price pursuant to such sections and all other amounts required
to
be paid to the Purchasers with respect to such Mortgage Loan;
(iv) to
pay
itself interest on funds deposited in the Custodial Account;
-38-
(v) to
reimburse itself for expenses incurred and reimbursable to it pursuant to
Section 9.01;
(vi) to
pay
any amount required to be paid pursuant to Section 4.16 related to any REO
Property, it being understood that in the case of any such expenditure or
withdrawal related to a particular REO Property, the amount of such expenditure
or withdrawal from the Custodial Account shall be limited to amounts on deposit
in the Custodial Account with respect to the related REO Property;
(vii) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
and
(viii) to
withdraw funds deposited in error.
In
the
event that the Custodial Account is interest bearing, on each Remittance Date,
the Company shall withdraw all funds from the Custodial Account except for
those
amounts which, pursuant to Section 5.01, the Company is not obligated to remit
on such Remittance Date. The Company may use such withdrawn funds only for
the
purposes described in this Section 4.05.
|
Section
4.06
|
Establishment
of and Deposits to Escrow Account.
|
The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more Escrow
Accounts, in the form of time deposit or demand accounts, titled, “IndyMac Bank,
FSB, in trust for the Purchaser of Conventional Residential Fixed and Adjustable
Rate Mortgage Loans, Group No. 2003-1, and various Mortgagors”. The Escrow
Accounts shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Funds deposited in the
Escrow Account may be drawn on by the Company in accordance with Section 4.07.
The creation of any Escrow Account shall be evidenced by a certification in
the
form of Exhibit
E-1
hereto,
in the case of an account established with the Company, or by a letter agreement
in the form of Exhibit
E-2
hereto,
in the case of an account held by a depository other than the Company. A copy
of
such certification shall be furnished to the Purchaser and, upon request, to
any
subsequent Purchaser.
The
Company shall deposit in the Escrow Account or Accounts on a daily basis, and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Company shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section 4.07.
The
Company shall be entitled to retain any interest paid on funds deposited in
the
Escrow Account by the depository institution, other than interest on escrowed
funds required by law to be paid to the Mortgagor. To the extent required by
law, the Company shall pay interest on escrowed funds to the Mortgagor
notwithstanding that the Escrow Account may be non-interest bearing or that
interest paid thereon is insufficient for such purposes.
-39-
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
Withdrawals
from the Escrow Account or Accounts may be made by the Company
only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Company for any Servicing Advances made by the Company pursuant
to
Section 4.08 with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required under
the terms of the related Mortgage Loan;
(iv) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 4.14;
(vi) to
pay to
the Company, or any Mortgagor to the extent required by law, any interest paid
on the funds deposited in the Escrow Account;
(vii) to
clear
and terminate the Escrow Account on the termination of this Agreement;
and
(viii) to
withdraw funds deposited in error.
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges.
|
With
respect to each Mortgage Loan, the Company shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Company in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does not provide
for Escrow Payments, the Company shall determine that any such payments are
made
by the Mortgagor at the time they first become due. The Company assumes full
responsibility for the timely payment of all such bills and shall effect timely
payment of all such charges irrespective of each Mortgagor’s faithful
performance in the payment of same or the making of the Escrow Payments, and
the
Company shall make advances from its own funds to effect such payments;
provided, that the Seller shall not be required to make any Nonrecoverable
Advance. In the event that the Seller determines that any advance would be
a
Nonrecoverable Advance, the Seller shall promptly deliver to the Purchaser
notification of such determination, accompanies by an officer’s certificate of
the Seller setting forth the reason such advance is determined to be
nonrecoverable. Upon liquidations of a Mortgage Loan, if the Liquidation
Proceeds are insufficient to reimburse the Seller for any Nonrecoverable
Advances made, the Purchaser shall reimburse the Seller for such
shortfall.
-40-
|
Section
4.09
|
Protection
of Accounts.
|
The
Company may transfer the Custodial Account or the Escrow Account to a different
Qualified Depository from time to time. Such transfer shall be made only upon
obtaining the consent of the Purchaser, which consent shall not be withheld
unreasonably.
The
Company shall bear any expenses, losses or damages sustained by the Purchaser
because the Custodial Account and/or the Escrow Account are not demand deposit
accounts.
Amounts
on deposit in the Custodial Account and the Escrow Account may at the option
of
the Company be invested in Eligible Investments; provided that in the event
that
amounts on deposit in the Custodial Account or the Escrow Account exceed the
amount fully insured by the FDIC (the “Insured
Amount”)
the
Company shall be obligated to invest the excess amount over the Insured Amount
in Eligible Investments on the same Business Day as such excess amount becomes
present in the Custodial Account or the Escrow Account. Any such Eligible
Investment shall mature no later than the Business Day prior to the Remittance
Date next following the date of such Eligible Investment, provided, however,
that if such Eligible Investment is an obligation of a Qualified Depository
(other than the Company) that maintains the Custodial Account or the Escrow
Account, then such Eligible Investment may mature on such Remittance Date.
Any
such Eligible Investment shall be made in the name of the Company in trust
for
the benefit of the Purchaser. All income on or gain realized from any such
Eligible Investment shall be for the benefit of the Company and may be withdrawn
at any time by the Company. Any losses incurred in respect of any such
investment shall be deposited in the Custodial Account or the Escrow Account,
by
the Company out of its own funds immediately as realized.
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
The
Company shall cause to be maintained for each Mortgage Loan hazard insurance
such that all buildings upon the Mortgaged Property are insured by a Qualified
Insurer against loss by fire, hazards of extended coverage and such other
hazards as are customary in the area where the Mortgaged Property is located,
in
an amount which is at least equal to the lesser of (i) the replacement
value of the improvements securing such Mortgage Loan and (ii) the greater
of (a) the outstanding principal balance of the Mortgage Loan and
(b) an amount such that the proceeds thereof shall be sufficient to prevent
the Mortgagor or the loss payee from becoming a co-insurer.
-41-
If
upon
origination of the Mortgage Loan, the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been made
available) a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration is in effect with a Qualified
Insurer in an amount representing coverage equal to the lesser of (i) the
minimum amount required, under the terms of coverage, to compensate for any
damage or loss on a replacement cost basis (or the unpaid balance of the
mortgage if replacement cost coverage is not available for the type of building
insured) and (ii) the maximum amount of insurance which is available under
the
Flood Disaster Protection Act of 1973, as amended. If at any time during the
term of the Mortgage Loan, the Company determines in accordance with applicable
law and pursuant to the Xxxxxx Xxx Guides that a Mortgaged Property is located
in a special flood hazard area and is not covered by flood insurance or is
covered in an amount less than the amount required by the Flood Disaster
Protection Act of 1973, as amended, the Company shall notify the related
Mortgagor that the Mortgagor must obtain such flood insurance coverage, and
if
said Mortgagor fails to obtain the required flood insurance coverage within
forty-five (45) days after such notification, the Company shall immediately
force place the required flood insurance on the Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Company shall verify
that the coverage required of the owner’s association, including hazard, flood,
liability, and fidelity coverage, is being maintained in accordance with then
current Xxxxxx Mae requirements, and secure from the owner’s association its
agreement to notify the Company promptly of any change in the insurance coverage
or of any condemnation or casualty loss that may have a material effect on
the
value of the Mortgaged Property as security.
The
Company shall cause to be maintained on each Mortgaged Property earthquake
or
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In
the
event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Company as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
-42-
The
Company shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Company
shall
only accept any such insurance policies from Qualified Insurers licensed to
do
business in the jurisdiction in which the Mortgaged Property is located. The
Company shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address. The Company shall furnish to the Mortgagor a formal notice
of expiration of any such insurance in sufficient time for the Mortgagor to
arrange for renewal coverage by the expiration date.
Pursuant
to Section 4.04, any amounts collected by the Company under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Company’s normal servicing procedures as specified in
Section 4.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 4.05.
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance.
|
In
the
event that the Company shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the amount required pursuant to Section 4.10 and otherwise
complies with all other requirements of Section 4.10, it shall conclusively
be
deemed to have satisfied its obligations as set forth in Section 4.10. Any
amounts collected by the Company under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.05. Such policy may contain a deductible clause, in which case,
in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 4.10, and there shall have been a
loss
which would have been covered by such policy, the Company shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
deposited from the Company’s funds, without reimbursement therefor. Upon request
of any Purchaser, the Company shall cause to be delivered to such Purchaser
a
certificate of insurance setting forth the related coverage.
|
Section
4.12
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
The
Company shall maintain with responsible companies, at its own expense, a blanket
Fidelity Bond and an Errors and Omissions Insurance Policy, with broad coverage
on all officers, employees or other persons acting in any capacity requiring
such persons to handle funds, money, documents or papers relating to the
Mortgage Loans (“Company
Employees”).
Any
such Fidelity Bond and Errors and Omissions Insurance Policy shall be in the
form of the Mortgage Banker’s Blanket Bond and shall protect and insure the
Company against losses, including forgery, theft, embezzlement, fraud, errors
and omissions and negligent acts of such Company Employees. Such Fidelity Bond
and Errors and Omissions Insurance Policy also shall protect and insure the
Company against losses in connection with the release or satisfaction of a
Mortgage Loan without having obtained payment in full of the indebtedness
secured thereby. No provision of this Section 4.12 requiring such Fidelity
Bond
and Errors and Omissions Insurance Policy shall diminish or relieve the Company
from its duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal to
the
corresponding amounts required by Xxxxxx Xxx in the Xxxxxx Mae Mortgage-Backed
Securities Selling and Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Xxx
Xxxxxxx’ & Servicers’ Guide. Upon the request of any Purchaser, the Company
shall cause to be delivered to such Purchaser a certified true copy of such
fidelity bond and insurance policy, or a certificate of insurance setting forth
the related coverage, and a statement from the surety and the insurer that
such
fidelity bond and insurance policy shall in no event be terminated or materially
modified without 30 days’ prior written notice to the Purchaser.
-43-
|
Section
4.13
|
Inspections.
|
The
Company shall inspect the Mortgaged Property as often as deemed necessary by
the
Company to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than 60 days delinquent,
the Company immediately shall inspect the Mortgaged Property and shall conduct
subsequent inspections in accordance with Accepted Servicing Practices or as
may
be required by the primary mortgage guaranty insurer. The Company shall keep
a
written report of each such inspection.
|
Section
4.14
|
Restoration
of Mortgaged Property.
|
The
Company need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices. At a minimum, the Company shall
comply with the following conditions in connection with any such release of
Insurance Proceeds or Condemnation Proceeds:
(i) the
Company shall receive satisfactory independent verification of completion of
repairs and issuance of any required approvals with respect thereto;
(ii) the
Company shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii) the
Company shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Company shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Company is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
|
Section
4.15
|
Maintenance
of PMI Policy; Claims.
|
(a) With
respect to each Mortgage Loan, the Company shall, without any cost to the
Purchaser, maintain or cause the Mortgagor to maintain in full force and effect
a PMI Policy conforming to Xxxxxx Xxx requirements, and shall pay or shall
cause
the Mortgagor to pay the premium thereon on a timely basis, until the LTV of
such Mortgage Loan is reduced to 80%. In the event that such PMI Policy shall
be
terminated, the Company shall obtain from another Qualified Insurer a comparable
replacement policy, with a total coverage equal to the remaining coverage of
such terminated PMI Policy. If the insurer shall cease to be a Qualified
Insurer, the Company shall determine whether recoveries under the PMI Policy
are
jeopardized for reasons related to the financial condition of such insurer,
it
being understood that the Company shall in no event have any responsibility
or
liability for any failure to recover under the PMI Policy for such reason.
If
the Company determines that recoveries are so jeopardized, it shall notify
the
Purchaser and the Mortgagor, if required, and obtain from another Qualified
Insurer a replacement insurance policy. The Company shall not take any action
which would result in noncoverage under any applicable PMI Policy of any loss
which, but for the actions of the Company would have been covered thereunder.
In
connection with any assumption or substitution agreement entered into or to
be
entered into pursuant to Section 6.01, the Company shall promptly notify the
insurer under the related PMI Policy, if any, of such assumption or substitution
of liability in accordance with the terms of such PMI Policy and shall take
all
actions which may be required by such insurer as a condition to the continuation
of coverage under such PMI Policy. If such PMI Policy is terminated as a result
of such assumption or substitution of liability, the Company shall obtain a
replacement PMI Policy as provided above.
-44-
(b) With
respect to each Mortgage Loan the Company shall
maintain
in full force and effect any LPMI Policy, and from time to time, withdraw the
premium with respect to such Mortgage Loans from the Custodial Account in order
to pay the premium thereon on a timely basis. In the event that the interest
payments made with respect to the Mortgage Loan are less than the premium with
respect to the LPMI Policy, the Company shall advance from its own funds the
amount of any such shortfall in the LPMI Policy premiums, in payment of such
premium. Any such advance shall be a Servicing Advance subject to reimbursement
pursuant to the provisions on Section 4.05. In the event that such LPMI Policy
shall be terminated, the Company shall obtain from another Qualified Insurer
a
comparable replacement policy, with a total coverage equal to the remaining
coverage of such terminated LPMI Policy, at substantially the same fee level.
If
the insurer shall cease to be a Qualified Insurer, the Company shall determine
whether recoveries under the LPMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that the Company
shall in no event have any responsibility or liability for any failure to
recover under the LPMI Policy for such reason. If the Company determines that
recoveries are so jeopardized, it shall notify the Purchaser and the Mortgagor,
if required, and obtain from another Qualified Insurer a replacement insurance
policy. The Company shall not take any action which would result in noncoverage
under any applicable LPMI Policy of any loss which, but for the actions of
the
Company would have been covered thereunder. In connection with any assumption
or
substitution agreement entered into or to be entered into pursuant to Section
4.01, the Company shall promptly notify the insurer under the related LPMI
Policy, if any, of such assumption or substitution of liability in accordance
with the terms of such LPMI Policy and shall take all actions which may be
required by such insurer as a condition to the continuation of coverage under
such LPMI Policy. If such LPMI Policy is terminated as a result of such
assumption or substitution of liability, the Company shall obtain a replacement
LPMI Policy as provided above.
-45-
(c) Purchaser,
in its sole discretion, at any time, may (i) either obtain an additional LPMI
Policy on any Mortgage Loan which already has an LPMI Policy in place, or (ii)
obtain a LPMI Policy for any Mortgage Loan which does not already have a LPMI
Policy in place. In any event, the Company agrees to administer such LPMI
Policies in accordance with the Agreement or any Reconstitution
Agreement.
(d) In
connection with its activities as servicer, the Company agrees to prepare and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any PMI Policy respecting a defaulted Mortgage Loan. Pursuant
to
Section 4.04, any amounts collected by the Company under any PMI Policy shall
be
deposited in the Custodial Account, subject to withdrawal pursuant to Section
4.05.
|
Section
4.16
|
Title,
Management and Disposition of REO Property.
|
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Purchaser or as the Purchaser shall direct.
The
Company shall manage, conserve, protect and operate each REO Property for the
Purchaser solely for the purpose of its prompt disposition and sale. The
Company, either itself or through an agent selected by the Company, shall
manage, conserve, protect and operate the REO Property in the same manner that
it manages, conserves, protects and operates other foreclosed property for
its
own account, and in the same manner that similar property in the same locality
as the REO Property is managed. The Company shall attempt to sell the same
(and
may temporarily rent the same for a period not greater than one year, except
as
otherwise provided below) on such terms and conditions as the Company deems
to
be in the best interest of the Purchaser.
The
Company shall use its best efforts to dispose of the REO Property as soon as
possible and shall sell such REO Property in any event within three years after
title has been taken to such REO Property, unless (i) (A) a REMIC election
has
not been made with respect to the arrangement under which the Mortgage Loans
and
the REO Property are held, and (ii) the Company determines, and gives an
appropriate notice to the Purchaser to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If a period longer
than one year is permitted under the foregoing sentence and is necessary to
sell
any REO Property, (i) the Company shall report monthly to the Purchaser as
to
the progress being made in selling such REO Property and (ii) if, with the
written consent of the Purchaser, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Company
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the Company
and Purchaser shall be entered into with respect to such purchase money
mortgage.
The
Company shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent required and available under the Flood Disaster Protection
Act of 1973, as amended, flood insurance in the amount required above.
-46-
The
disposition of REO Property shall be carried out by the Company at such price,
and upon such terms and conditions, as the Company deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property shall
be
promptly deposited in the Custodial Account. As soon as practical thereafter
the
expenses of such sale shall be paid and the Company shall reimburse itself
for
any related unreimbursed Servicing Advances, unpaid Servicing Fees and
unreimbursed advances made pursuant to Section 5.03, and on the Remittance
Date
immediately following the Principal Prepayment Period in which such sale
proceeds are received the net cash proceeds of such sale remaining in the
Custodial Account shall be distributed to the Purchaser.
The
Company shall withdraw the Custodial Account funds necessary for the proper
operation, management and maintenance of the REO Property, including the cost
of
maintaining any hazard insurance pursuant to Section 4.10 and the fees of any
managing agent of the Company or the Company itself. The REO management fee
shall be an amount that is reasonable and customary in the area where the
Mortgaged Property is located. The Company shall make monthly distributions
on
each Remittance Date to the Purchasers of the net cash flow from the REO
Property (which shall equal the revenues from such REO Property net of the
expenses described in the Section 4.16 and of any reserves reasonably required
from time to time to be maintained to satisfy anticipated liabilities for such
expenses).
Notwithstanding
the foregoing, at any time and from time to time, the Purchaser may at its
election terminate this Agreement with respect to one or more REO Properties
as
provided by Section 11.02.
|
Section
4.17
|
Real
Estate Owned Reports.
|
Together
with the statement furnished pursuant to Section 5.02, the Company shall furnish
to the Purchaser on or before the Remittance Date each month a statement with
respect to any REO Property covering the operation of such REO Property for
the
previous month and the Company’s efforts in connection with the sale of such REO
Property and any rental of such REO Property incidental to the sale thereof
for
the previous month. That statement shall be accompanied by such other
information as the Purchaser shall reasonably request.
|
Section
4.18
|
Liquidation
Reports.
|
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed in lieu of foreclosure, the Company shall submit
to
the Purchaser a liquidation report with respect to such Mortgaged
Property.
|
Section
4.19
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Company
shall
report such foreclosure or abandonment as required pursuant to Section 6050J
of
the Code.
-47-
|
Section
4.20
|
Notification
of Adjustments.
|
With
respect to each Mortgage Loan, the Company shall adjust the Mortgage Interest
Rate on the related Interest Rate Adjustment Date in compliance with the
requirements of applicable law and the related Mortgage and Mortgage Note.
The
Company shall execute and deliver any and all necessary notices required under
applicable law and the terms of the related Mortgage Note and Mortgage regarding
the Mortgage Interest Rate adjustments. The Company shall promptly, upon written
request therefor, deliver to the Purchaser such notifications and any additional
applicable data regarding such adjustments and the methods used to calculate
and
implement such adjustments. Upon the discovery by the Company or the receipt
of
notice from the Purchaser that the Company has failed to adjust a Mortgage
Interest Rate in accordance with the terms of the related Mortgage Note, the
Company shall immediately deposit in the Custodial Account from its own funds
the amount of any interest loss or deferral caused the Purchaser
thereby.
|
Section
4.21
|
Credit
Reporting
|
For
each
Mortgage Loan, the Company shall accurately and fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information on its borrower credit files to each of the following
credit repositories: Equifax Credit Information Services, Inc., TransUnion,
LLC
and Experian Information Solution, Inc. on a monthly basis.
ARTICLE
V
PAYMENTS
TO PURCHASER
|
Section
5.01
|
Remittances.
|
On
each
Remittance Date the Company shall remit by wire transfer of immediately
available funds to the Purchaser (a) all amounts deposited in the Custodial
Account as of the close of business on the Determination Date (net of charges
against or withdrawals from the Custodial Account pursuant to Section 4.05),
plus (b) all amounts, if any, which the Company is obligated to distribute
pursuant to Section 5.03, minus (c) any amounts attributable to Principal
Prepayments received after the applicable Principal Prepayment Period which
amounts shall be remitted on the following Remittance Date, together with any
additional interest required to be deposited in the Custodial Account in
connection with such Principal Prepayment in accordance with Section 4.04(viii),
and minus (d) any amounts attributable to Monthly Payments collected but due
on
a Due Date or Dates subsequent to the first day of the month of the Remittance
Date, which amounts shall be remitted on the Remittance Date next succeeding
the
Due Period for such amounts.
With
respect to any remittance received by the Purchaser after the second Business
Day following the Business Day on which such payment was due, the Company shall
pay to the Purchaser interest on any such late payment at an annual rate equal
to the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the Company
on
the date such late payment is made and shall cover the period commencing with
the day following such second Business Day and ending with the Business Day
on
which such payment is made, both inclusive. Such interest shall be remitted
along with the distribution payable on the next succeeding Remittance Date.
The
payment by the Company of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the
Company.
-48-
|
Section
5.02
|
Statements
to Purchaser.
|
Not
later
than the 10th
calendar
day of the month (or if such day is not a Business Day, the Business Day
immediately following such 10th
day),
the Company shall furnish to the Purchaser a Monthly Remittance Advice, with
a
trial balance report attached thereto, in the form of Exhibit
F
annexed
hereto in hard copy and electronic medium mutually acceptable to the parties
as
to the preceding calendar month.
In
addition, not more than 60 days after the end of each calendar year, the Company
shall furnish to each Person who was a Purchaser at any time during such
calendar year an annual statement in accordance with the requirements of
applicable federal income tax law as to the aggregate of remittances for the
applicable portion of such year.
Such
obligation of the Company shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Company
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
At
the
Purchaser’s expense, the Company shall provide any and all information necessary
for the preparation and filing of tax returns, information statements or other
filings required to be delivered to any governmental taxing authority or to
any
Purchaser pursuant to any applicable law with respect to the Mortgage Loans
and
the transactions contemplated hereby. In addition, the Company shall provide
each Purchaser with such information concerning the Mortgage Loans as is
necessary for such Purchaser to prepare its federal income tax return as any
Purchaser may reasonably request from time to time.
Company
would prompt of any material development or change with respect to any Mortgage
Loan.
|
Section
5.03
|
Monthly
Advances by Company.
|
On
the
Business Day immediately preceding each Remittance Date, the Company shall
deposit in the Custodial Account from its own funds an amount equal to all
Monthly Payments (with interest adjusted to the Mortgage Loan Remittance Rate)
which were due on the Mortgage Loans during the applicable Due Period and which
were delinquent at the close of business on the immediately preceding
Determination Date or which were deferred pursuant to Section 4.01. The
Company’s obligation to make such Monthly Advances as to any Mortgage Loan will
continue through the last Monthly Payment due prior to the payment in full
of
the Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date for the distribution of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with respect
to the Mortgage Loan; provided, that the Seller shall not be required to make
any Nonrecoverable Advance. In the event that the Seller determines that any
advance would be a Nonrecoverable Advance, the Seller shall promptly deliver
to
the Purchaser notification of such determination, accompanied by an officer’s
certificate of the Seller setting forth the reason such advance is determined
to
be nonrecoverable.
-49-
|
Section
5.04
|
Due
Dates Other Than the First of the Month.
|
Mortgage
Loans having Due Dates other than the first day of a month, including Mortgage
Loans permitting semi-annual amortization of principal, shall be accounted
for
as described in this Section 5.04. Any payment due on a day other than the
first
day of each month shall be considered due on the first day of the month in
which
that payment is due as if such payment were due on the first day of said month.
For example, a payment due on August 15 shall be considered to be due on August
1 of said month. With respect to a Mortgage Note permitting semi-annual
amortization of principal, the Company shall be required to remit monthly
scheduled principal and interest based on a monthly amortization schedule.
Any
payment collected on a Mortgage Loan after the related Cut-off Date shall be
deposited in the Custodial Account. For Mortgage Loans with Due Dates on the
first day of a month, deposits to the Custodial Account begin with the payment
due on the first of the month following the related Cut-off Date.
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
| Section 6.01 |
Transfers
of Mortgaged Property.
|
The
Company shall use its best efforts to enforce any “due-on-sale” provision
contained in any Mortgage or Mortgage Note and to deny assumption by the person
to whom the Mortgaged Property has been or is about to be sold whether by
absolute conveyance or by contract of sale, and whether or not the Mortgagor
remains liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Company shall, to the extent
it
has knowledge of such conveyance, exercise its rights to accelerate the maturity
of such Mortgage Loan under the “due-on-sale” clause applicable thereto,
provided, however, that the Company shall not exercise such rights if prohibited
by law from doing so or if the exercise of such rights would impair or threaten
to impair any recovery under the related PMI Policy.
If
the
Company reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Company shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Company
is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Company has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage Note. If an
assumption fee is collected by the Company for entering into an assumption
agreement, such fee will be retained by the Company as additional servicing
compensation. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan
nor the outstanding principal amount of the Mortgage Loan shall be
changed.
-50-
To
the
extent that any Mortgage Loan is assumable, the Company shall inquire diligently
into the creditworthiness of the proposed transferee, and shall use the
underwriting criteria for approving the credit of the proposed transferee which
are used by Xxxxxx Xxx with respect to underwriting mortgage loans of the same
type as the Mortgage Loans. If the credit of the proposed transferee does not
meet such underwriting criteria, the Company diligently shall, to the extent
permitted by the Mortgage or the Mortgage Note and by applicable law, accelerate
the maturity of the Mortgage Loan.
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Company of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Company shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 5.02, and may request the release of any Mortgage
Loan Documents.
If
the
Company satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Company
otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Company shall repurchase
the related Mortgage Loan at the Repurchase Price by deposit thereof in the
Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Company shall maintain the Fidelity Bond and Errors and Omissions
Insurance Policy as provided for in Section 4.12 insuring the Company against
any loss it may sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth herein.
|
Section
6.03
|
Servicing
Compensation.
|
As
compensation for its services hereunder, the Company shall be entitled to
withdraw from the Custodial Account or to retain from interest payments on
the
Mortgage Loans the amount of its Servicing Fee. The Servicing Fee shall be
payable monthly and shall be computed on the basis of the same unpaid principal
balance and for the period respecting which any related interest payment on
a
Mortgage Loan is computed. The Servicing Fee shall be payable only at the time
of and with respect to those Mortgage Loans for which payment is in fact made
of
the entire amount of the Monthly Payment. The obligation of the Purchaser to
pay
the Servicing Fee is limited to, and payable solely from, the interest portion
of such Monthly Payments collected by the Company.
Additional
servicing compensation in the form of assumption fees, and late payment charges
shall be retained by the Company to the extent not required to be deposited
in
the Custodial Account. The Company shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement thereof except as specifically provided for
herein; provided , that the Seller shall not be required to make any
Nonrecoverable Advance. In the event that the Seller determines that any advance
would be a Nonrecoverable Advance, the Seller shall promptly deliver to the
Purchaser notification of such determination, accompanied by an officer’s
certificate of the Seller setting forth the reason such advance is determined
to
be nonrecoverable.
-51-
|
Section
6.04
|
Annual
Statement as to Compliance.
|
The
Company shall deliver to the Purchaser, on or before March 31 each year
beginning March 31, 2004, an Officer’s Certificate, stating that (i) a review of
the activities of the Company during the preceding calendar year and of
performance under this Agreement has been made under such officer’s supervision,
and (ii) the Company has complied fully with the provisions of Article II and
Article IV, and (iii) to the best of such officer’s knowledge, based on such
review, the Company has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the fulfillment of
any
such obligation, specifying each such default known to such officer and the
nature and status thereof and the action being taken by the Company to cure
such
default.
|
Section
6.05
|
Annual
Independent Public Accountants’ Servicing Report.
|
On
or
before March 31st of each year beginning March 31, 2004, the Company, at its
expense, shall cause a firm of independent public accountants which is a member
of the American Institute of Certified Public Accountants to furnish a statement
to each Purchaser to the effect that such firm has examined certain documents
and records relating to the servicing of the Mortgage Loans and this Agreement
and that such firm is of the opinion that the provisions of Article II and
Article IV have been complied with, and that, on the basis of such examination
conducted substantially in compliance with the Single Attestation Program for
Mortgage Bankers, nothing has come to their attention which would indicate
that
such servicing has not been conducted in compliance therewith, except for (i)
such exceptions as such firm shall believe to be immaterial, and (ii) such
other
exceptions as shall be set forth in such statement.
|
Section
6.06
|
Right
to Examine Company Records.
|
The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Company, whether held by the Company or
by
another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance
notice.
ARTICLE
VII
PASS-THROUGH
TRANSFER
|
Section
7.01
|
Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Pass-Through
Transfer on One or More Reconstitution
Dates.
|
The
Purchaser and the Company agree that with respect to some or all of the Mortgage
Loans, from time to time the Purchaser shall effect a Whole Loan Transfer,
a
Pass-Through Transfer or an Agency Transfer, retaining the Company as the
servicer thereof, or as applicable the “seller/servicer”. On the related
Reconstitution Date, the Mortgage Loans transferred shall cease to be covered
by
this Agreement.
-52-
The
Company shall cooperate with the Purchaser in connection with any Transfer
contemplated by the Purchaser pursuant to this Section 7.01. In that connection,
the Company shall (a) execute any Reconstitution Agreement within a reasonable
period of time after receipt of any Reconstitution Agreement which time shall
be
sufficient for the Company and Company’s counsel to review such Reconstitution
Agreement, but such time shall not exceed ten (10) Business Days after such
receipt, and (b) provide to the trustee or a third party purchaser, subject
to
any Reconstitution Agreement and/or the Purchaser: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Company, whether through letters of its auditors (the reasonable
out-of-pocket cost of which shall be borne by the Purchaser) and counsel or
otherwise, as the Purchaser shall reasonably request; (ii) restate each of
the
representations and warranties set forth in the Section 3.01 as of the Closing
Date, and (iii) such additional representations, warranties, covenants, opinions
of counsel, letters from auditors, and certificates of public officials or
officers of the Company as are reasonably believed necessary by the trustee,
such third party purchaser, any master servicer, any rating agency or the
Purchaser, as the case may be, in connection with such transactions; provided,
however, that these items shall not be more onerous than such similar items
set
forth herein.
The
Assignments of Mortgage are generally required to be recorded by or on behalf
of
the Company in the appropriate offices for real property records; provided
however, the Company shall not cause to be recorded any Assignment which relates
to a Mortgage Loan in a jurisdiction where either the Rating Agencies (in the
case of Agency or Pass-Through Transfers) or purchasers (in the case of Whole
Loan Transfers) do not require recordation; provided further, however,
notwithstanding the foregoing, upon the occurrence of certain events set forth
in the pooling agreement (in the case of and Agency or Pass-Through Transfer),
each such assignment of Mortgage shall be recorded by the master servicer or
the
trustee as set forth in the Reconstitution Agreement. Any costs associated
with
the recording of such Assignments of Mortgage and other relevant documents
will
be borne by the Company. In the event that Purchaser sells any Mortgage Loans
in
a Whole Loan Transfer and the subsequent purchaser requests recorded Assignments
of Mortgage, the Company, shall at its expense cause to be recorded any
Assignments of Mortgage.
All
Mortgage Loans not sold or transferred pursuant to a Pass-Through Transfer
and
any Mortgage Loans repurchased by the Purchaser pursuant to Section 7.02 hereof,
shall be subject to this Agreement and shall continue to be serviced in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
The
Purchaser shall pay the Seller’s reasonable legal fees for the review of any
matters related to a Transfer or Reconstitution Agreement and shall reimburse
the Company for any out-of-pocket expenses incurred in connection with entering
into any Reconstitution Agreement.
-53-
|
Section
7.02
|
Purchaser’s
Repurchase and Indemnification Obligations.
|
Upon
receipt by the Company of notice from Xxxxxx Mae, Xxxxxxx Mac or the trustee
of
a breach of any Purchaser representation or warranty contained in any
Reconstitution Agreement or a request by Xxxxxx Mae, Xxxxxxx Mac or the trustee,
as the case may be, for the repurchase of any Mortgage Loan transferred to
Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a trustee
pursuant to a Pass-Through Transfer, the Company shall promptly notify the
Purchaser of same and shall, at the direction of the Purchaser, use its best
efforts to cure and correct any such breach and to satisfy the requests or
concerns of Xxxxxx Mae, Xxxxxxx Mac, or the trustee related to such deficiencies
of the related Mortgage Loans transferred to Xxxxxx Mae, Xxxxxxx Mac, or the
trustee.
The
Purchaser shall repurchase from the Company any Mortgage Loan transferred to
Xxxxxx Mae or Xxxxxxx Mac pursuant to an Agency Transfer or to a trustee
pursuant to a Pass-Through Transfer with respect to which the Company has been
required by Xxxxxx Mae, Xxxxxxx Mac, or the trustee to repurchase due to a
breach of a representation or warranty made by the Purchaser with respect to
the
Mortgage Loans, or the servicing thereof prior to the transfer date to Xxxxxx
Mae, Xxxxxxx Mac, or the trustee in any Reconstitution Agreement and not due
to
a breach of the Company’s representations or obligations thereunder or pursuant
to this Agreement. The repurchase price to be paid by the Purchaser to the
Company shall equal that repurchase price paid by the Company to Xxxxxx Mae,
Xxxxxxx Mac, or the third party purchaser plus all reasonable costs and expenses
borne by the Company in connection with the cure of said breach of a
representation or warranty made by the Purchaser and in connection with the
repurchase of such Mortgage Loan from Xxxxxx Mae, Xxxxxxx Mac, or the trustee,
including, but not limited to, reasonable and necessary attorneys’
fees.
At
the
time of repurchase, the Custodian and the Company shall arrange for the
reassignment of the repurchased Mortgage Loan to the Purchaser according to
the
Purchaser’s instructions and the delivery to the Custodian of any documents held
by Xxxxxx Mae, Xxxxxxx Mac, or the trustee with respect to the repurchased
Mortgage Loan pursuant to the related Reconstitution Agreement. In the event
of
a repurchase, the Company shall, simultaneously with such reassignment, give
written notice to the Purchaser that such repurchase has taken place, and amend
the Mortgage Loan Schedule to reflect the addition of the repurchased Mortgage
Loan to this Agreement. In connection with any such addition, the Company and
the Purchaser shall be deemed to have made as to such repurchased Mortgage
Loan
the representations and warranties set forth in this Agreement except that
all
such representations and warranties set forth in this Agreement shall be deemed
made as of the Closing Date.
ARTICLE
VIII
COMPANY
TO COOPERATE
|
Section
8.01
|
Provision
of Information.
|
During
the term of this Agreement, the Company shall furnish to the Purchaser such
periodic, special, or other reports or information and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan, whether
or
not provided for herein, as shall be necessary, reasonable, or appropriate
with
respect to the Purchaser, any regulatory requirement pertaining to the Purchaser
or the purposes of this Agreement. All such reports, documents or information
shall be provided by and in accordance with all reasonable instructions and
directions which the Purchaser may give.
-54-
The
Company shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
|
Section
8.02
|
Financial
Statements; Servicing Facility.
|
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the Company
for the most recently completed five fiscal years for which such a statement
is
available, as well as a Consolidated Statement of Condition at the end of the
last two fiscal years covered by such Consolidated Statement of Operations.
The
Company also shall make available any comparable interim statements to the
extent any such statements have been prepared by or on behalf of the Company
(and are available upon request to members or stockholders of the Company or
to
the public at large). If it has not already done so, the Company shall furnish
promptly to the Purchaser copies of the statement specified above.
The
Company also shall make available to Purchaser or prospective Purchaser a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Company or the financial
statements of the Company, and to permit any prospective Purchaser to inspect
the Company’s servicing facilities for the purpose of satisfying such
prospective Purchaser that the Company has the ability to service the Mortgage
Loans as provided in this Agreement.
ARTICLE
IX
THE
COMPANY
|
Section
9.01
|
Indemnification;
Third Party Claims.
|
The
Company shall indemnify the Purchaser and hold it harmless against any and
all
claims, losses, damages, penalties, fines, and forfeitures, including but not
limited to, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Purchaser may sustain in any
way
related to the failure of the Company to perform its duties and service the
Mortgage Loans in strict compliance with the terms of this Agreement or any
Reconstitution Agreement entered into pursuant to Section 7.01. The Company
immediately shall notify the Purchaser if a claim is made by a third party
with
respect to this Agreement or any Reconstitution Agreement or the Mortgage Loans,
shall promptly notify Xxxxxx Mae, Xxxxxxx Mac, or the trustee with respect
to
any claim made by a third party with respect to any Reconstitution Agreement,
assume (with the prior written consent of the Purchaser) the defense of any
such
claim and pay all expenses in connection therewith, including counsel fees,
and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser in respect of such claim. The Company shall follow
any written instructions received from the Purchaser in connection with such
claim. The Purchaser promptly shall reimburse the Company for all amounts
advanced by it pursuant to the preceding sentence except when the claim is
in
any way related to the Company’s indemnification pursuant to Section 3.03, or
the failure of the Company to service and administer the Mortgage Loans in
strict compliance with the terms of this Agreement or any Reconstitution
Agreement.
-55-
(b) The
Purchaser shall indemnify the Company and hold it harmless against any actual
out of pocket losses, costs and expenses that the Company may sustain arising
as
a direct result of the failure of the Purchaser to perform any of its
obligations under this Agreement.
|
Section
9.02
|
Merger
or Consolidation of the Company.
|
The
Company shall keep in full effect its existence, rights and franchises as a
corporation and shall obtain and preserve its qualification to do business
as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement or
any
of the Mortgage Loans and to perform its duties under this
Agreement.
Any
person into which the Company may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Company
shall be a party, or any Person succeeding to the business of the Company,
shall
be the successor of the Company hereunder, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, provided, however, that the successor
or
surviving Person shall be an institution (i) having a net worth of not less
than
$25,000,000, (ii) whose deposits are insured by the FDIC through the BIF or
the
SAIF, and (iii) which is a Xxxxxxx Mac or Xxxxxx Xxx-approved company in good
standing.
|
Section
9.03
|
Limitation
on Liability of Company and Others.
|
Neither
the Company nor any of the directors, officers, employees or agents of the
Company shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Company or any such person against any Breach of
warranties or representations made herein, or failure to perform its obligations
in strict compliance with any standard of care set forth in this Agreement,
or
any liability which would otherwise be imposed by reason of any breach of the
terms and conditions of this Agreement. The Company and any director, officer,
employee or agent of the Company may rely in good faith on any document of
any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Company shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to
its
duties to service the Mortgage Loans in accordance with this Agreement and
which
in its opinion may involve it in any expense or liability, provided, however,
that the Company may, with the consent of the Purchaser, undertake any such
action which it may deem necessary or desirable in respect to this Agreement
and
the rights and duties of the parties hereto. In such event, the Company shall
be
entitled to reimbursement from the Purchaser of the reasonable legal expenses
and costs of such action.
-56-
|
Section
9.04
|
Limitation
on Resignation and Assignment by Company.
|
The
Purchaser has entered into this Agreement with the Company and subsequent
Purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Company, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance thereof. Therefore,
the
Company shall neither assign this Agreement or the servicing hereunder or
delegate its rights or duties hereunder or any portion hereof or sell or
otherwise dispose of all or substantially all of its property or assets without
the prior written consent of the Purchaser, which consent shall be granted
or
withheld in the sole discretion of the Purchaser.
The
Company shall not resign from the obligations and duties hereby imposed on
it
except by mutual consent of the Company and the Purchaser or upon the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the Company. Any such
determination permitting the resignation of the Company shall be evidenced
by an
Opinion of Counsel to such effect delivered to the Purchaser which Opinion
of
Counsel shall be in form and substance acceptable to the Purchaser. No such
resignation shall become effective until a successor shall have assumed the
Company’s responsibilities and obligations hereunder in the manner provided in
Section 13.01.
Without
in any way limiting the generality of this Section 9.04, in the event that
the Company either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell or
otherwise dispose of all or substantially all of its property or assets, without
the prior written consent of the Purchaser, then the Purchaser shall have the
right to terminate this Agreement upon notice given as set forth in
Section 10.01, without any payment of any penalty or damages and without
any liability whatsoever to the Company or any third party.
ARTICLE
X
DEFAULT
|
Section
10.01
|
Events
of Default.
|
Each
of
the following shall constitute an Event of Default on the part of the
Company:
(i) any
failure by the Company to remit to the Purchaser any payment required to be
made
under the terms of this Agreement which continues unremedied for a period of
five days after the date upon which written notice of such failure, requiring
the same to be remedied, shall have been given to the Company by the Purchaser;
or
(ii) failure
by the Company duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Company set forth in this
Agreement which continues unremedied for a period of 30 days after the date
on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Company by the Purchaser; or
-57-
(iii) failure
by the Company to maintain a license to do business in any jurisdiction where
a
Mortgage Property is located and such license is legally required;
or
(iv) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the Company and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days;
or
(v) the
Company shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Company or of or
relating to all or substantially all of its property; or
(vi) the
Company shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit of
its
creditors, voluntarily suspend payment of its obligations or cease its normal
business operations for three Business Days; or
(vii) the
Company ceases to meet the qualifications of a Xxxxxxx Mac or Xxxxxx Mae lender;
or
(viii) the
Company fails to maintain a minimum net worth of $25,000,000; or
(ix) the
Company attempts to assign its right to servicing compensation hereunder or
the
Company attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof in violation of Section 9.04.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Company, and subject to the succeeding
sentence, may terminate all the rights and obligations of the Company under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof; provided
that, the Company, within 60 days following receipt of such notice from the
Purchaser, shall have the right to deliver to the Purchaser, a firm written
commitment by a third party servicer (an “Acceptable
Commitment”),
which
commitment is in form and substance acceptable to the Purchaser in its sole
discretion, to purchase the servicing rights and assume the servicing
obligations hereunder and under any Reconstitution Agreement related to any
of
the Mortgage Loans; provided further that such third party servicer (i) is
acceptable to the Purchaser in its sole discretion, and (ii) by replacing the
Company as servicer, will not cause a downgrade by any Rating Agency rating
the
bonds related to any of the Mortgage Loans issued under any Reconstitution
Agreement. In the event that the Company fails to deliver an Acceptable
Commitment to the Purchaser within 60 days, all rights and obligations of the
Company to service the Mortgage Loans shall automatically terminate and become
the Purchaser’s.
-58-
Upon
receipt by the Company of such written notice, all authority and power of the
Company under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 13.01. Upon written request from any Purchaser, the Company shall
prepare, execute and deliver to the successor entity designated by the Purchaser
any and all documents and other instruments, place in such successor’s
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company’s sole
expense. The Company shall cooperate with the Purchaser and such successor
in
effecting the termination of the Company’s responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
|
Section
10.02
|
Waiver
of Defaults.
|
By
a
written notice, the Purchaser may waive any default by the Company in the
performance of its obligations hereunder and its consequences. Upon any waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE
XI
TERMINATION
|
Section
11.01
|
Termination.
|
This
Agreement shall terminate upon either: (i) the later of the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder; (ii) mutual consent of
the
Company and the Purchaser in writing; or (iii) if any Event of Default is not
cured within the applicable cure period, subject to the provisions of Section
10.01 hereof.
|
Section
11.02
|
Termination
Without Cause.
|
The
Purchaser may terminate, at its sole option, any rights the Company may have
hereunder, without cause, as provided in this Section 11.02. Any such
notice of termination shall be in writing and delivered to the Company by
registered mail as provided in Section 13.05.
In
the
event the Purchaser terminates the Company without cause with respect to some
or
all of the Mortgage Loans, the Purchaser shall be required to pay to the Company
a Termination Fee in an amount equal to 1.50% of the Stated Principal Balance
of
the terminated Mortgage Loans as of the date of such termination. Purchaser
shall also reimburse the Company for all outstanding servicing
advances.
-59-
Notwithstanding
and in addition to the foregoing, in the event that (i) a Mortgage Loan becomes
delinquent for a period of 120 days or more (a “Delinquent
Mortgage Loan”)
or
(ii) a Mortgage Loan becomes an REO Property, the Purchaser may at its election
terminate this Agreement with respect to such Delinquent Mortgage Loan or REO
Property without payment of a termination fee therefor, upon 15 days’ written
notice to the Company, reimbursement of all outstanding advances, and payment
of
any unpaid Servicing Fees.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
Section
12.01
|
Successor
to Company.
|
Prior
to
termination of the Company’s responsibilities and duties under this Agreement
pursuant to Sections 9.04, 10.01, 11.01 (ii) or 11.02, the Purchaser shall,
(i)
succeed to and assume all of the Company’s responsibilities, rights, duties and
obligations under this Agreement, or (ii) appoint a successor having the
characteristics set forth in clauses (i) through (iii) of Section 9.02 and
which
shall succeed to all rights and assume all of the responsibilities, duties
and
liabilities of the Company under this Agreement prior to the termination of
Company’s responsibilities, duties and liabilities under this Agreement. In
connection with such appointment and assumption, the Purchaser may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree. In the event that the Company’s
duties, responsibilities and liabilities under this Agreement should be
terminated pursuant to the aforementioned sections, the Company shall discharge
such duties and responsibilities during the period from the date it acquires
knowledge of such termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to exercise under this
Agreement, and shall take no action whatsoever that might impair or prejudice
the rights or financial condition of its successor. The resignation or removal
of the Company pursuant to the aforementioned sections shall not become
effective until a successor shall be appointed pursuant to this
Section 12.01 and the Company is reimbursed for all outstanding advances
and all outstanding servicing fees are paid and shall in no event relieve the
Company of the representations and warranties made pursuant to
Sections 3.01 and 3.02 and the remedies available to the Purchaser
under Sections 3.03 , 3.05 and 3.06, it being understood and agreed
that the provisions of such Sections 3.01, 3.02, 3.03, 3.05
and 3.06 shall be applicable to the Company notwithstanding any such sale,
assignment, resignation or termination of the Company, or the termination of
this Agreement.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 3.01, except for subsections (f), (h), (i) and (k) thereof, whereupon
such successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Section
9.04, 10.01, 11.01 or 11.02 shall not affect any claims that either party may
have has against the other arising out of the Company’s actions or failure to
act prior to any such termination or resignation.
-60-
The
Company shall deliver promptly to the successor servicer the Funds in the
Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Company shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Company.
Upon
a
successor’s acceptance of appointment as such, the Company shall notify by mail
the Purchaser of such appointment in accordance with the procedures set forth
in
Section 12.05.
|
Section
12.02
|
Amendment.
|
This
Agreement may be amended from time to time by the Company and the Purchaser
by
written agreement signed by the Company and the Purchaser.
|
Section
12.03
|
Governing
Law.
|
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws.
|
Section
12.04
|
Duration
of Agreement.
|
This
Agreement shall continue in existence and effect until terminated as herein
provided. This Agreement shall continue notwithstanding transfers of the
Mortgage Loans by the Purchaser.
|
Section
12.05
|
Notices.
|
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
registered mail, postage prepaid, addressed as follows:
| (i) |
if
to the Company:
IndyMac
Bank, F.S.B.
0000
Xxxx Xxxxxxxx Xxxxxxxxx, 0xx
Xxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention: Secondary Marketing |
or
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Company;
-61-
| (ii) |
if
to Purchaser:
Xxxxxx
Brothers Bank, F.S.B.,
3 World Financial Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 Attention: Contract Finance |
|
Section
12.06
|
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this
Agreement.
|
Section
12.07
|
Relationship
of Parties.
|
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of the Company shall be
rendered as an independent contractor and not as agent for the
Purchaser.
|
Section
12.08
|
Execution;
Successors and Assigns.
|
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Section 8.04, this Agreement shall inure
to
the benefit of and be binding upon the Company and the Purchaser and their
respective successors and assigns.
|
Section
12.09
|
Recordation
of Assignments of Mortgage.
|
To
the
extent permitted by applicable law, each of the Assignments of Mortgage is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any
or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected at the
Purchaser’s expense in the event recordation is either necessary under
applicable law or requested by the Purchaser at its sole option.
|
Section
12.10
|
Assignment
by Purchaser.
|
The
Purchaser shall have the right, without the consent of the Company but subject
to the limit set forth in Section 2.02 hereof, to assign, in whole or in
part, its interest under this Agreement with respect to some or all of the
Mortgage Loans, and designate any person to exercise any rights of the Purchaser
hereunder, by executing an Assignment and Assumption Agreement substantially
in
the form of Exhibit G
hereto.
Upon such assignment of rights and assumption of obligations, the assignee
or
designee shall accede to the rights and obligations hereunder of the Purchaser
with respect to such Mortgage Loans and the Purchaser as assignor shall be
released from all obligations hereunder with respect to such Mortgage Loans
from
and after the date of such assignment and assumption. All references to the
Purchaser in this Agreement shall be deemed to include its assignee or
designee.
-62-
|
Section
12.11
|
No
Personal Solicitation.
|
From
and
after the related Closing Date, the Company hereby agrees that it will not
take
any action or permit or cause any action to be taken by any of its agents or
affiliates, or by any independent contractors on the Company’s behalf or provide
information to any other entity, to personally, by telephone or mail, solicit
the borrower or obligor under any Mortgage Loan for any purpose whatsoever
following the date hereof, including to refinance a Mortgage Loan, in whole
or
in part, without the prior written consent of the Purchaser.. Notwithstanding
the foregoing, it is understood and agreed that (a) engaging in general
solicitations to its customer base, including by mass mailing or as part of
monthly or periodic statements mailed to its borrowers or to holders of deposit
or other accounts, (b) engaging in solicitations to the general public,
including without limitation by mass mailing, newspaper, radio, television
or
other media which are not specifically directed toward the Mortgagors or (c)
refinancing the Mortgage Loan of any Mortgagor who, without solicitation,
contacts the Company to request the refinancing of the related Mortgage Loan,
shall not constitute solicitation under this Section 12.11.
|
Section
12.12
|
Appointment
and Designation of Master Servicer.
|
The
Purchaser hereby appoints and designates Aurora Loan Services, Inc. as its
master servicer (the “Master
Servicer”)
for
the Mortgage Loans subject to this Agreement. The Company is hereby authorized
and instructed to take any and all instructions with respect to servicing the
Mortgage Loans hereunder as if the Master Servicer were the Purchaser hereunder.
The authorization and instruction set forth herein shall remain in effect until
such time as the Company shall receive written instruction from the Purchaser
that such authorization and instruction is terminated.
-63-
IN
WITNESS WHEREOF,
the
Company and the Purchaser have caused their names to be signed hereto by their
respective officers thereunto duly authorized as of the day and year first
above
written.
| XXXXXX BROTHERS BANK, F.S.B., | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
| INDYMAC BANK, F.S.B. | ||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
-00-
|
XXXXX
XX XXX XXXX
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
the __
day of ________, 200__ before me, a Notary Public in and for said State,
personally appeared ________, known to me to be Vice President of Xxxxxx
Brothers Bank, F.S.B., the corporation that executed the within instrument
and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
| |
|
Notary
Public
|
|
My Commission expires |
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the __
day of _______, 200__ before me, a Notary Public in and for said State,
personally appeared __________, known to me to be ______________ of IndyMac
Bank, F.S.B. ,the entity that executed the within instrument and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand affixed my office seal the day
and
year in this certificate first above written.
| |
|
Notary
Public
|
|
My Commission expires |
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE
A-1
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
any prospective Purchaser, and which shall be retained by the Company in the
Servicing File or delivered to the Custodian pursuant to Section 2.01 and 2.03
of the Seller’s Warranties and Servicing Agreement to which this Exhibit is
attached (the “Agreement”):
1.
The
original Mortgage Note bearing all intervening endorsements, endorsed, “Pay to
the order of ________________, without recourse” and signed in the name of the
Company or the originator by an authorized officer. In the event that the
Mortgage Loan was acquired by the Company in a merger, the endorsement must
be
by “IndyMac Bank, F.S.B., successor by merger to [name of predecessor]”; and in
the event that the Mortgage Loan was acquired or originated by the Company
while
doing business under another name, the endorsement must be by “IndyMac Bank,
F.S.B., formerly known as [previous name]”.
2.
The
original of any guarantee executed in connection with the Mortgage
Note.
3.
The
original Mortgage, with evidence of recording thereon or, with respect to each
Cooperative Loan, the original Pledge Agreement. If in connection with any
Mortgage Loan, the Company cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the related Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the Company shall deliver or cause to be delivered to the Purchaser,
a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by
the public recording office, an Officer’s Certificate of the Company stating
that such Mortgage has been dispatched to the appropriate public recording
office for recordation and that the original recorded Mortgage or a copy of
such
Mortgage certified by such public recording office to be a true and complete
copy of the original recorded Mortgage will be promptly delivered to the
Purchaser upon receipt thereof by the Company; or (ii) in the case of a Mortgage
where a public recording office retains the original recorded Mortgage or in
the
case where a Mortgage is lost after recordation in a public recording office,
a
copy of such Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage.
4.
The
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, or a copy of such Mortgage
certified by the related public recording office to be a true and complete
copy
of the original document, or .
5.
The
original Assignment of Mortgage, signed by the Company or originator in blank,
which assignment shall be in form and substance acceptable for recording but
not
recorded or with respect to each Cooperative Loan, Assignment of Pledge
Agreement. In the event that the Mortgage Loan was acquired by the Company
in a
merger, the assignment must be by “IndyMac Bank, F.S.B., successor by merger to
[name of predecessor]”; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name, the
assignment must be by “IndyMac Bank, F.S.B., formerly known as [previous
name]”
B-1
6.
Originals of all intervening assignments of the Mortgage with evidence of
recording thereon or with respect to each Cooperative Loan, intervening
assignments of the Pledge Agreement, or if any such intervening assignment
has
not been returned from the applicable recording office or has been lost or
if
such public recording office retains the original recorded assignments of
mortgage, the Company shall deliver or cause to be delivered to the Purchaser,
a
photocopy of such intervening assignment, together with (i) in the case of
a
delay caused by the public recording office, an Officer’s Certificate of the
Company stating that such intervening assignment of mortgage has been dispatched
to the appropriate public recording office for recordation and that such
original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Purchaser upon receipt
thereof by the Company; or (ii) in the case of an intervening assignment where
a
public recording office retains the original recorded intervening assignment
or
in the case where an intervening assignment is lost after recordation in a
public recording office, a copy of such intervening assignment certified by
such
public recording office to be a true and complete copy of the original recorded
intervening assignment.
7.
If
required, the original policy of primary mortgage guaranty insurance, or where
such insurance is provided by a master policy, a certified true copy of the
master policy and the original certificate of insurance; and
8.
With
respect to each Mortgage Loan other than a Cooperative Loan, the original or
electronic copy (in a form generally acceptable on the secondary market)
mortgagee policy of title insurance, except for those Mortgage Loans originated
within 60 days before the related Closing Date, for which Mortgage Loans the
Company shall have delivered and released to the Purchaser the related binders.
In addition, the Company shall deliver to the Purchaser the original policy
of
title insurance within 90 days after the related Closing Date. The policy must
be properly endorsed, any necessary notices of transfer must be forwarded and
any other action required to be taken must be taken in order to fully protect,
under the terms of the policy and applicable law, Purchaser’s interest as first
mortgagee;
9.
Any
security agreement, chattel mortgage or equivalent executed in connection with
the Mortgage.
10.
The
original hazard insurance policy and, if required by law, flood insurance
policy, in accordance with Section 7(f) of the Agreement.
11.
With
respect to each Cooperative Loan:
(a)
the
Cooperative Shares, (b) a stock power executed in blank by the Person in whose
name the Cooperative Shares are issued, (c) the proprietary lease or occupancy
agreement, accompanied by an assignment in blank of such proprietary lease,
(d)
a recognition agreement executed by the Cooperative Corporation, which requires
the Cooperative Corporation to recognize the rights of the lender and its
successors in interest and assigns, under the Cooperative Loan, accompanied
by
an assignment of such recognition agreement in blank, (e) UCC-1 financing
statements with recording information thereon from the appropriate state and
county recording offices if necessary to perfect the security interest of the
Cooperative Loan under the Uniform Commercial Code in the state in which the
Cooperative Project is located, accompanied by UCC-3 financing statements
executed in blank for recordation of the change in the secured party thereunder
and (f) any guarantees, if applicable.
B-2
12.
Residential loan application.
13.
Mortgage Loan closing statement.
14.
Verification of employment and income except for Mortgage Loans originated
under
a Limited Documentation Program.
15.
Verification of acceptable evidence of source and amount of down
payment.
16.
Credit report on the Mortgagor.
17.
Residential appraisal report.
18.
Photograph of the Mortgaged Property.
19.
Survey of the Mortgaged Property, if any.
20.
Copy
of each instrument necessary to complete identification of any exception set
forth in the exception schedule in the title policy, i.e., map or plat,
restrictions, easements, sewer agreements, home association declarations,
etc.
21.
All
required disclosure statements.
22.
If
available, termite report, structural engineer’s report, water potability and
septic certification.
23.
Sales
contract.
24.
Tax
receipts, insurance premium receipts, ledger sheets, payment history from date
of origination, insurance claim files, correspondence, current and historical
computerized data files, and all other processing, underwriting and closing
papers and records which are customarily contained in a mortgage loan file
and
which are required to document the Mortgage Loan or to service the Mortgage
Loan.
25.
Amortization schedule.
B-3
In
the
event an Officer’s Certificate of the Company is delivered to the Custodian
because of a delay caused by the public recording office in returning any
recorded document, the Company shall deliver to the Custodian, within 90 days
of
the related Closing Date, an Officer’s Certificate which shall (i) identify the
recorded document, (ii) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(iii) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, and (iv)
specify the date the applicable recorded document will be delivered to the
Custodian. The Company shall be required to deliver to the Custodian the
applicable recorded document by the date specified in (iv) above. An extension
of the date specified in (iv) above may be requested from the Purchaser, which
consent shall not be unreasonably withheld.
B-4
EXHIBIT
C
MORTGAGE
LOAN DOCUMENTS
The
Mortgage Loan Documents for each Mortgage Loan shall include each of the
following items, which shall be delivered to the Custodian pursuant to Section
2.01 of the Seller’s Warranties and Servicing Agreement to which this Exhibit is
annexed (the “Agreement”):
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(A)
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The
original Mortgage Note bearing all intervening endorsements, endorsed,
“Pay to the order of ________________, without recourse” and signed in the
name of the Company or the originator by an authorized officer. In
the
event that the Mortgage Loan was acquired by the Company in a merger,
the
endorsement must be by “IndyMac Bank, F.S.B., successor by merger to [name
of predecessor]”; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name,
the
endorsement must be by “IndyMac Bank, F.S.B., formerly known as [previous
name]”.
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(B)
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The
original Mortgage, with evidence of recording thereon or, with respect
to
each Cooperative Loan, the original Pledge Agreement. If in connection
with any Mortgage Loan, the Company cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon
on or
prior to the related Closing Date because of a delay caused by the
public
recording office where such Mortgage has been delivered for recordation
or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the Company shall
deliver
or cause to be delivered to the Purchaser, a photocopy of such Mortgage.
In addition, the Company shall deliver and release to the Purchaser
the
original recorded Mortgage within 90 days after the related Closing
Date.
If the Company fails to deliver the original Mortgage within 90 days
after
the related Closing Date, the Company shall deliver (i) in the case
of a
delay caused by the public recording office, an Officer’s Certificate of
the Company stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the
original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Purchaser upon receipt
thereof
by the Company; or (ii) in the case of a Mortgage where a public
recording
office retains the original recorded Mortgage or in the case where
a
Mortgage is lost after recordation in a public recording office,
a copy of
such Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage. In addition, the
Company
shall deliver and release to the Purchaser the original recorded
Mortgage
within 90 days after the related Closing Date
.
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C-4-1
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(C)
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The
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, or a copy of such
Mortgage
certified by the related public recording office to be a true and
complete
copy of the original document.
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(D)
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The
original Assignment of Mortgage, signed in the name of the Company
or
originator, in blank, which assignment shall be in form and substance
acceptable for recording but not recorded or with respect to each
Cooperative Loan, Assignment of Pledge Agreement. In the event that
the
Mortgage Loan was acquired by the Company in a merger, the assignment
must
be by “IndyMac Bank, F.S.B., successor by merger to [name of
predecessor]”; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name,
the
assignment must be by “IndyMac Bank, F.S.B., formerly known as [previous
name]”
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(E)
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Originals
of all intervening assignments of the Mortgage with evidence of recording
thereon or with respect to each Cooperative Loan, intervening assignments
of the Pledge Agreement, or if any such intervening assignment has
not
been returned from the applicable recording office or has been lost
or if
such public recording office retains the original recorded assignments
of
mortgage, the Company shall deliver or cause to be delivered to the
Purchaser, a photocopy of such intervening assignment, together with
(i)
in the case of a delay caused by the public recording office, an
Officer’s
Certificate of the Company stating that such intervening assignment
of
mortgage has been dispatched to the appropriate public recording
office
for recordation and that such original recorded intervening assignment
of
mortgage or a copy of such intervening assignment of mortgage certified
by
the appropriate public recording office to be a true and complete
copy of
the original recorded intervening assignment of mortgage will be
promptly
delivered to the Purchaser upon receipt thereof by the Company; or
(ii) in
the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case
where
an intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment.
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(F)
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With
respect to each Mortgage Loan other than a Cooperative Loan, the
original
or electronic copy (in form generally acceptable on the secondary
market)
of the mortgagee policy of title insurance, except for those Mortgage
Loans originated within 60 days before the related Closing Date,
for which
Mortgage Loans the Company shall have delivered and released to the
Purchaser the related binders. In addition, the Company shall deliver
to
the Purchaser the original policy of title insurance within 90 days
after
the related Closing Date. The policy must be properly endorsed, any
necessary notices of transfer must be forwarded and any other action
required to be taken must be taken in order to fully protect, under
the
terms of the policy and applicable law, Purchaser’s interest as first
mortgagee.
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C-4-2
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(G)
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With
respect to each Cooperative Loan: (a) the Cooperative Shares,
(b) a stock power executed in blank by the Person in whose name the
Cooperative Shares are issued, (c) the proprietary lease or occupancy
agreement, accompanied by an assignment in blank of such proprietary
lease, (d) a recognition agreement executed by the Cooperative
Corporation, which requires the Cooperative Corporation to recognize
the
rights of the lender and its successors in interest and assigns,
under the
Cooperative Loan, accompanied by an assignment of such recognition
agreement in blank, (e) UCC-1 financing statements with recording
information thereon from the appropriate state and county recording
offices if necessary to perfect the security interest of the Cooperative
Loan under the Uniform Commercial Code in the state in which the
Cooperative Project is located, accompanied by UCC-3 financing statements
executed in blank for recordation of the change in the secured party
thereunder and (f) any guarantees, if
applicable.
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(a) such
other documents as the Purchaser may require.
X-0-0
XXXXXXX
X-0
CUSTODIAL
ACCOUNT CERTIFICATION
_____________________,
200_
IndyMac
Bank, F.S.B. hereby certifies that it has established the account described
below as a Custodial Account pursuant to Section 4.04 of the Seller’s Warranties
and Servicing Agreement, dated as of July 1, 2003, Conventional Residential
Fixed and Adjustable Rate Mortgage Loans, Group No. 2003-1.
Title
of
Account: IndyMac
Bank, F.S.B. in trust for the Purchaser, Group No. 2003-1.
Account
Number: _______________
Address
of office or branch
of
the
Company at
which
Account is maintained:
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| INDYMAC BANK, F.S.B. | ||
| Company | ||
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| Name: | ||
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| Title: | ||
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X-0-0
XXXXXXX
X-0
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________________,
200_
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(the “Depository”) |
As
Company under the Seller’s Warranties and Servicing Agreement, dated as of July
1, 2003, Conventional Residential Fixed and Adjustable Rate Mortgage Loans,
Group No. 2003-1 (the “Agreement”),
we
hereby authorize and request you to establish an account, as a Custodial Account
pursuant to Section 4.04 of the Agreement, to be designated as “IndyMac Bank,
F.S.B., in trust for the Purchaser - Conventional Residential Fixed and
Adjustable Rate Mortgage Loans - Group No. 2003-1.” All deposits in the account
shall be subject to withdrawal therefrom by order signed by the Company. You
may
refuse any deposit which would result in violation of the requirement that
the
account be fully insured as described below. This letter is submitted to you
in
duplicate. Please execute and return one original to us.
| INDYMAC BANK, F.S.B. | ||
| Company | ||
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D-2-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”)
or the
Savings Association Insurance Fund (“SAIF”).
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Depository |
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| By: | ||
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D-2-2
EXHIBIT
E-1
ESCROW
ACCOUNT CERTIFICATION
__________________,
200_
IndyMac
Bank, F.S.B. hereby certifies that it has established the account described
below as an Escrow Account pursuant to Section 4.06 of the Seller’s Warranties
and Servicing Agreement, dated as of July 1, 2003, Conventional Residential
Fixed and Adjustable Rate Mortgage Loans, Group No. 2003-1.
Title
of
Account: “IndyMac
Bank, F.S.B. in trust for the Purchaser, Group No. 2003-1, and various
Mortgagors.”
Account
Number: _______________
Address
of office or branch
of
the
Company at
which
Account is maintained:
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| INDYMAC BANK, F.S.B. | ||
| Company | ||
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E-1-1
EXHIBIT
E-2
ESCROW
ACCOUNT LETTER AGREEMENT
___________________,
200_
| To: | ||||
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(the “Depository”) |
As
Company under the Seller’s Warranties and Servicing Agreement, dated as of July
1, 2003, Conventional Residential Fixed and Adjustable Rate Mortgage Loans,
Group No. 2003-1 (the “Agreement”),
we
hereby authorize and request you to establish an account, as an Escrow Account
pursuant to Section 4.07 of the Agreement, to be designated as “IndyMac Bank,
F.S.B. in trust for the Purchaser, Group No. 2003-1, and various Mortgagors” All
deposits in the account shall be subject to withdrawal therefrom by order signed
by the Company. You may refuse any deposit which would result in violation
of
the requirement that the account be fully insured as described below. This
letter is submitted to you in duplicate. Please execute and return one original
to us.
| INDYMAC BANK, F.S.B. | ||
| Company | ||
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E-2-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”)
or the
Savings Association Insurance Fund (“SAIF”).
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Depository |
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E-2-2
EXHIBIT
F
MONTHLY
REMITTANCE ADVICE
F-1
EXHIBIT
G
ASSIGNMENT
AND ASSUMPTION
_________________,
200_
ASSIGNMENT
AND ASSUMPTION, dated __________, between __________________________________,
a
___________________ corporation having an office at __________________
(“Assignor”)
and
_________________________________, a __________________ corporation having
an
office at __________________ (“Assignee”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as purchaser, in, to and under that certain
Seller’s Warranties and Servicing Agreement, Conventional Residential Fixed and
Adjustable Rate Mortgage Loans, Group No. 2003-1 (the “Seller’s
Warranties and Servicing Agreement”),
dated
as of July 1, 2003, by and between Xxxxxx Brothers Bank, F.S.B., (the
“Purchaser”),
and
IndyMac Bank, F.S.B., (the “Company”),
and
the Mortgage Loans Group No. 2003-1 delivered thereunder by the Company to
the
Assignor,.
2. The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer the Mortgage Loans free from any and all claims and encumbrances
whatsoever;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to the
Seller’s Warranties and Servicing Agreement or the Mortgage Loans;
c. The
Assignor has not waived or agreed to any waiver under, or agreed to any
amendment or other modification of, the Seller’s Warranties and Servicing
Agreement, the Custodial Agreement or the Mortgage Loans, including without
limitation the transfer of the servicing obligations under the Seller’s
Warranties and Servicing Agreement. The Assignor has no knowledge of, and has
not received notice of, any waivers under or amendments or other modifications
of, or assignments of rights or obligations under, the Seller’s Warranties and
Servicing Agreement or the Mortgage Loans; and
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner, or made
any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the “33
Act”)
or
which would render the disposition of the Mortgage Loans a violation of Section
5 of the 33 Act or require registration pursuant thereto.
G-1
3. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Company that:
a. The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Seller’s Warranties and Servicing Agreement, the Mortgage
Loans and the Custodial Agreement, and from and after the date hereof, the
Assignee assumes for the benefit of each of the Company and the Assignor all
of
the Assignor’s obligations as Purchaser thereunder;
b. The
Assignee understands that the Mortgage Loans have not been registered under
the
33 Act or the securities laws of any state;
c. The
purchase price being paid by the Assignee for the Mortgage Loans are in excess
of $250,000 and will be paid by cash remittance of the full purchase price
within 60 days of the sale;
d. The
Assignee is acquiring the Mortgage Loans for investment for its own account
only
and not for any other person. In this connection, neither the Assignee nor
any
Person authorized to act therefor has offered the Mortgage Loans by means of
any
general advertising or general solicitation within the meaning of Rule 502(c)
of
U.S. Securities and Exchange Commission Regulation D, promulgated under the
1933
Act;
e. The
Assignee considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Mortgage
Loans;
f. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company;
g. Neither
the Assignee nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security to, or solicited any offer to buy or accept
a transfer, pledge or other disposition of the Mortgage Loans, any interest
in
the Mortgage Loans or any other similar security from, or otherwise approached
or negotiated with respect to the Mortgage Loans, any interest in the Mortgage
Loans or any other similar security with, any person in any manner which would
constitute a distribution of the Mortgage Loans under the 33 Act or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
33
Act or require registration pursuant thereto, nor will it act, nor has it
authorized or will it authorize any person to act, in such manner with respect
to the Mortgage Loans; and
h. Either:
(1) the Assignee is not an employee benefit plan (“Plan”)
within
the meaning of section 3(3) of the Employee Retirement Income Security Act
of
1974, as amended (“ERISA”)
or a
plan (also “Plan”)
within
the meaning of section 4975(e)(1) of the Internal Revenue Code of 1986
(“Code”),
and
the Assignee is not directly or indirectly purchasing the Mortgage Loans on
behalf of, investment manager of, as named fiduciary of, as Trustee of, or
with
assets of, a Plan; or (2) the Assignee’s purchase of the Mortgage Loans will not
result in a prohibited transaction under section 406 of ERISA or section 4975
of
the Code.
G-2
i. The
Assignee’s address for purposes of all notices and correspondence related to the
Mortgage Loans and the Seller’s Warranties and Servicing Agreement
is:
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Attention:
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The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Seller’s Warranties and Servicing
Agreement are:
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G-3
IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption to
be
executed by their duly authorized officers as of the date first above
written.
| ________________________________________ | ______________________________________ | |||
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Assignor
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Assignor
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By:
___________________________________________
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By:
_________________________________________
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Its:
___________________________________________
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Its:
_________________________________________
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G-4
EXHIBIT
H
UNDERWRITING
GUIDELINES
L-1
EXHIBIT
I
ACKNOWLEDGMENT
AGREEMENT
On
this
____ day of ____________, 200_, Xxxxxx Brothers Bank, FSB, (the “Purchaser”)
as the
Purchaser under that certain Seller’s Warranties and Servicing Agreement dated
as of July 1, 2003, (the “Agreement”),
does
hereby contract with IndyMac Bank, FSB (the “Company”)
as
Company under the Agreement, for the servicing responsibilities related to
the
Mortgage Loans listed on the Mortgage Loan Schedule attached hereto. The Company
hereby accepts the servicing responsibilities transferred hereby and on the
date
hereof assumes all servicing responsibilities related to the Mortgage Loans
identified on the attached Mortgage Loan Schedule all in accordance with the
Agreement. The contents of each Servicing File required to be delivered to
service the Mortgage Loans pursuant to the Agreement have been or shall be
delivered to the Company by the Purchaser in accordance with the terms of the
Agreement.
With
respect to the Mortgage Loans made subject to the Agreement hereby, the related
Closing Date shall be ___________________.
All
other
terms and conditions of this transaction shall be governed by the
Agreement.
Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in
the Agreement.
G-1
This
Acknowledgment Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Purchaser and the Company have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
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PURCHASER:
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XXXXXX
BROTHERS BANK, FSB
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| Title: | ||
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SELLER:
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INDYMAC
BANK, FSB
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AMENDMENT
NO. 1
TO
THE
SELLERS WARRANTIES AND SERVICING AGREEMENT
This
is
Amendment No. 1 (the “Amendment
No. 1”),
dated
as of December 29, 2004 (the “Amendment
Date”),
by
and between Xxxxxx Brothers Bank, FSB (the “Purchaser”), and
IndyMac Bank, F.S.B. (the “Seller”), to that certain Sellers Warranties and
Servicing Agreement dated as of July 1, 2003 by and between the Seller and
the
Purchaser, (the “Existing
Purchase Agreement”,
as
amended by this Amendment 1, the “Purchase
Agreement”).
WITNESSETH
WHEREAS,
the Seller and the Purchaser have agreed, subject to the terms and conditions
of
this Amendment No. 1 that the Existing Purchase Agreement be amended to reflect
certain agreed upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly,
the Seller and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Existing Purchase
Agreement is hereby amended as follows:
The
definition of “Mortgage Loan Schedule” in Article 1 of the Existing Purchase
Agreement is hereby amended by adding the following language as an additional
field:
and
(94)
a code indicating if the Mortgage Loan is a High Cost Loan as such terms are
defined in the then current Standard & Poor’s LEVELS® Glossary.
The
definition of “Repurchase Price” in Section 1 of the Existing Purchase Agreement
is hereby amended by deleting the existing definition and replacing it with
the
following language:
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of the Mortgage Loan plus (ii) interest on such Stated Principal Balance at
the
Mortgage Loan Remittance Rate from the date on which interest has last been
paid
and distributed to the Purchaser to the date of repurchase, less amounts
received, if any, plus amounts or advanced, if any, by any servicer, in respect
of such repurchased Mortgage Loan plus (iii) any costs and damages incurred
by
the trust with respect to any securitization of the Mortgage Loan in connection
with any violation by such Mortgage Loan of any predatory- or abusive-lending
law.
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(b)
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Section
3.02 of the Existing Purchase Agreement is hereby amended by deleting
the
existing subsections (jj), (rr), (ww), (xx) and (ccc) and replacing
them
with the following language:
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(jj) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified the Company, and the Company has no knowledge of
any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act, as amended from time to time;
(rr) Single
Premium Credit Life Insurance.
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, disability, accident, unemployment, or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of credit.
No Mortgagor obtained a prepaid single premium credit insurance policy (e.g.,
life, disability, accident, unemployment, mortgage, or health insurance) in
connection with the origination of the Mortgage Loan from the Seller. No
proceeds from any Mortgage Loan were used to purchase single premium credit
insurance policies or debt cancellation agreements as part of the origination
of, or as a condition to closing, such Mortgage Loan. None of the proceeds
of
the Mortgage Loans were used to finance single premium credit life insurance
policies;
(ww)
Prepayment
Fee.
With
respect to each Mortgage Loan that has a prepayment fee feature, each such
prepayment fee is enforceable and will be enforced by the Company, and each
prepayment penalty in permitted pursuant to federal, state and local law,
including the Parity Act of 1982. No Mortgage Loan will impose a prepayment
penalty for a term in excess of five years from the date such Mortgage Loan
was
originated. Except as otherwise set forth in the related Mortgage Loan Schedule,
with respect to each Mortgage Loan that contains a prepayment fee, such
prepayment fee is at least equal to the lesser of (A) the maximum amount
permitted under applicable law and (B) six months interest at the related
Mortgage Interest Rate on the amount prepaid in excess of 20% of the original
principal balance of such Mortgage Loan. With respect to any Mortgage Loan
that
contains a provision permitting imposition of a premium upon a prepayment prior
to maturity: (i) prior to the loan’s origination, the Mortgagor agreed to such
premium in exchange for a monetary benefit, including but not limited to a
rate
or fee reduction, (ii) prior to the loan’s origination, the Mortgagor was
offered the option of obtaining a mortgage loan that did not require payment
of
such a premium, (iii) the prepayment premium is disclosed to the borrower in
the
loan documents pursuant to applicable state and federal law, (iv) except as
set
forth on the related Mortgage Loan Schedule, for Mortgage Loans originated
on or
after September 1, 2004, the duration of the prepayment period shall not exceed
three (3) years from the date of the note, unless the Mortgage Loan was modified
to reduce the prepayment period to no more than three years from the date of
the
Mortgage Note and the Mortgagor was notified in writing of such reduction in
prepayment period, and (v) notwithstanding any state or federal law to the
contrary, prior to the Transfer Date, the Company or any servicer of the
Mortgage Loan shall not have imposed such prepayment premium in any instance
when the mortgage debt is accelerated as the result of the Mortgagor’s default
in making the loan payments;
(xx) Predatory
Lending Regulations; High Cost Loans.
None of
the Mortgage Loans are classified as (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“predatory”, “covered” loans under any other applicable state, federal or local
law. (or a similarly classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or fees).
Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of Xxxxxx Mae’s Selling Guide. No Mortgage Loan is a High
Cost Loan or Covered Loan, as applicable (as such terms are defined in the
then
current Standard & Poor’s LEVELS® Glossary);
(ccc) Credit
Reporting.
The
Company has fully furnished in accordance with the Fair Credit Reporting Act
and
its implementing regulations, accurate and complete information on the Mortgagor
credit files to Equifax, Experian and Trans Union Credit Information Company
on
a monthly basis. Prior to the Transfer Date, the Company shall have transmitted
full-file credit reporting data for each Mortgage Loan pursuant to Xxxxxx Mae
Guide Announcement 95-19, and, for each Mortgage Loan, prior to the Transfer
Date, the Company shall have reported one of the following statuses each month
as follows: new origination, current, delinquent (30-, 60-, 90-days, etc.),
foreclosed, or charged-off..;
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(c)
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Adding
the following language as new Sections 3.02(ddd) -
(ooo):
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(ddd) Points
and Fees; Mortgagor Acknowledgment.
All
points, fees and charges (including finance charges), whether or not financed,
assessed, collected or to be collected in connection with the origination and
servicing of each Mortgage Loan has been disclosed in writing to the Mortgagor
in accordance with applicable state and federal law and regulation. Except
in
the case of a Mortgage Loan in an original principal amount of less than $60,000
which would have resulted in an unprofitable origination, no Mortgagor was
charged “points and fees” (whether or not financed) in an amount greater than 5%
of the principal amount of such Mortgage Loan, such 5% limitation is calculated
in accordance with Xxxxxx Mae’s anti-predatory lending requirements as set forth
in the Xxxxxx Mae Selling Guide. The Mortgagor has executed a statement to
the
effect that the Mortgagor has received all disclosure materials required by
applicable law with respect to the making of adjustable rate mortgage loans.
The
Company shall maintain such statement in the Mortgage File;
(eee) Georgia
Loans.
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Georgia Fair Lending
Act, as amended (the “Georgia Act”). No Mortgage Loan subject to the Georgia Act
and secured by owner occupied real property or an owner occupied manufactured
home located in the State of Georgia was originated (or modified) on or after
October 1, 2002 through and including March 6, 2003;
(fff) New
York Loans.
No
Mortgage Loan is a “High Cost Home Loan” as defined in New York Banking Law
6-1;
(ggg) Arkansas
Loans.
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home Loan
Protection Act effective July 16, 2003 (Act 1340 of 2003);
(hhh) Kentucky
Loans.
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky high-cost
home loan statute effective June 24, 2003 (Ky. Rev. Stat. Section
360.100);
(iii) New
Mexico Loans.
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. Xxx. §§ 58-21A-1 et
seq.);
(jjj) New
Jersey Loans.
No
Mortgage Loan is a “High Cost Home Loan” as defined in the New Jersey Home
Ownership Security Act of 2002 (the “NJ Act”);
(kkk) Illinois
Mortgage Loans.
No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.)
No
Mortgage Loan for which the related Mortgaged Property is located in the state
of Illinois has a Mortgage Interest Rate greater than 8% and fees equal to
or in
excess of 3% of the principal amount of the loan.
(lll) Massachusetts
Mortgage Loans.
No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C);
(mmm) Qualified
Mortgage.
The
Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G(a)(3)
of the Code;
(nnn) Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the Mortgagor’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan
(ooo) Higher
Cost Products.
No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt to income ratios for a lower cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified for a
lower cost credit product then offered by any mortgage lending affiliate of
the
Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
Mortgagor’s application to such affiliate for underwriting consideration;
and
(ppp) Arbitration.
No
Mortgage Loan is subject to mandatory arbitration except when the terms of
the
arbitration also contain a waiver provision that provides that in the event
of a
sale or transfer of the Mortgage Loan or interest in the Mortgage Loan to Xxxxxx
Xxx, the terms of the arbitration are null and void. The Company hereby
covenants that the Company or servicer of the Mortgage Loan, as applicable,
will
notify the Mortgagor in writing within 60 days of the sale or transfer of the
Mortgage Loan to Xxxxxx Mae that the terms of the arbitration are null and
void.
Effective
Date.
This
Amendment shall become effective on the date (the “Amendment
Effective Date”)
on
which the following conditions precedent shall have been satisfied:
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(a)
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On
the Amendment Effective Date, the Purchaser shall have received the
following, each of which shall be satisfactory to the
Purchaser:
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(i)
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this
Amendment, executed and delivered by a duly authorized officer of
the
Seller and the Purchaser;
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(ii)
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such
other documents as the Purchaser or counsel to the Purchaser may
reasonably request.
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(b)
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On
the Amendment Effective Date, the Seller shall have received the
following, each of which shall be satisfactory to the
Seller:
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(i)
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this
Amendment, executed and delivered by a duly authorized officer of
the
Seller and the Purchaser;
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(ii)
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such
other documents as the Seller or counsel to the Seller may reasonably
request.
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(c)
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On
the Amendment Effective Date, (i) the Seller shall be in compliance
with
all the representations and warranties set forth in Section 3.01
of the
Purchase Agreement, as amended by this Amendment No. 1, on its part
to be
observed or performed, (ii) no default shall have occurred and be
continuing on such date.
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(d)
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Except
as expressly amended and modified by this Amendment, the Existing
Purchase
Agreement shall continue to be, and shall remain, in full force and
effect
in accordance with its terms.
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(e)
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This
Amendment No. 1 shall be construed in accordance with the laws of
the
State of New York, and the obligations, rights and remedies of the
parties
hereunder shall be determined in accordance with such
laws.
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(f)
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This
Amendment No. 1 may be executed in one or more counterparts and by
different parties hereto on separate counterparts, each of which,
when so
executed, shall constitute one and the same
agreement.
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(g)
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This
Amendment No. 1 shall inure to the benefit of and be binding upon
the
Purchaser and the Seller under the Existing Purchase Agreement, and
their
respective successors and permitted
assigns.
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[Signatures
Commence on Following Page]
IN
WITNESS WHEREOF, the parties have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first
above written.
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XXXXXX
BROTHERS BANK, FSB
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Purchaser
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| Name: | ||
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| Title: | ||
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INDYMAC
BANK, F.S.B.,
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Seller
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| Name: | ||
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| Title: | ||
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AMENDMENT
NO. 2
TO
THE
SELLERS WARRANTIES AND SERVICING AGREEMENT
This
is
Amendment No. 2 (the “Amendment
No. 2”),
dated
as of June ___, 2006 (the “Amendment
Date”),
by
and between Xxxxxx Brothers Bank, FSB (the “Purchaser”), and
IndyMac Bank, F.S.B. (the “Seller”), to that certain Sellers Warranties and
Servicing Agreement dated as of July 1, 2003 by and between the Seller and
the
Purchaser, as amended by Amendment No. 1 dated as of December 29, 2004, (the
“Existing
Purchase Agreement”,
as
amended by this Amendment 2, the “Purchase
Agreement”).
WITNESSETH
WHEREAS,
the Seller and the Purchaser have agreed, subject to the terms and conditions
of
this Amendment No. 2 that the Existing Purchase Agreement be amended to reflect
certain agreed upon revisions to the terms of the Existing Purchase
Agreement.
Accordingly,
the Seller and the Purchaser hereby agree, in consideration of the mutual
premises and mutual obligations set forth herein, that the Existing Purchase
Agreement is hereby amended as follows:
Article
1
of the Existing Purchase Agreement is hereby amended by adding the following
additional definitions:
Commission:
The
United States Securities and Exchange Commission.
Regulation
AB:
Regulation AB of the Securities Act of 1933, as amended from time to
time.
Servicing
Criteria:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, which as of the
date hereof consists of the following:
(a) General
servicing considerations.
(1) Policies
and procedures are instituted to monitor any performance or other triggers
and
events of default in accordance with the transaction agreements.
(2) If
any
material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party’s performance and
compliance with such servicing activities.
(3) Any
requirements in the transaction agreements to maintain a back-up servicer for
the mortgage loans are maintained.
(4) A
fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in
the
amount of coverage required by and otherwise in accordance with the terms of
the
transaction agreements.
(b) Cash
collection and administration.
(1) Payments
on mortgage loans are deposited into the appropriate custodial bank accounts
and
related bank clearing accounts no more than two business days of receipt, or
such other number of days specified in the transaction agreements.
(2) Disbursements
made via wire transfer on behalf of an obligor or to an investor are made only
by authorized personnel.
(3) Advances
of funds or guarantees regarding collections, cash flows or distributions,
and
any interest or other fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
(4) The
related accounts for the transaction, such as cash reserve accounts or accounts
established as a form of overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the transaction
agreements.
(5) Each
custodial account is maintained at a federally insured depository institution
as
set forth in the transaction agreements. For purposes of this criterion,
“federally insured depository institution” with respect to a foreign financial
institution means a foreign financial institution that meets the requirements
of
Rule 13k-1(b)(1) of the Securities Exchange Act.
(6) Unissued
checks are safeguarded so as to prevent unauthorized access.
(7) Reconciliations
are prepared on a monthly basis for all asset-backed securities related bank
accounts, including custodial accounts and related bank clearing accounts.
These
reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar
days after the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved by someone
other than the person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are resolved within
90 calendar days of their original identification, or such other number of
days
specified in the transaction agreements.
(c) Investor
remittances and reporting.
(1) Reports
to investors, including those to be filed with the Commission, are maintained
in
accordance with the transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared in accordance with
timeframes and other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in the transaction
agreements; (C) are filed with the Commission as required by its rules and
regulations; and (D) agree with investors’ or the trustee’s records as to the
total unpaid principal balance and number of mortgage loans serviced by the
Company.
(2) Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
(3) Disbursements
made to an investor are posted within two business days to the Company’s
investor records, or such other number of days specified in the transaction
agreements.
(4) Amounts
remitted to investors per the investor reports agree with cancelled checks,
or
other form of payment, or custodial bank statements.
(d) Mortgage
Loan administration.
(1) Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
(2) Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
(3) Any
additions, removals or substitutions to the asset pool are made, reviewed and
approved in accordance with any conditions or requirements in the transaction
agreements.
(4) Payments
on mortgage loans, including any payoffs, made in accordance with the related
mortgage loan documents are posted to the Company’s obligor records maintained
no more than two business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to principal, interest
or
other items (e.g., escrow) in accordance with the related mortgage loan
documents.
(5) The
Company’s records regarding the mortgage loans agree with the Company’s records
with respect to an obligor’s unpaid principal balance.
(6) Changes
with respect to the terms or status of an obligor’s mortgage loan (e.g., loan
modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related mortgage
loan documents.
(7) Loss
mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds
in lieu of foreclosure, foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the timeframes or other
requirements established by the transaction agreements.
(8) Records
documenting collection efforts are maintained during the period a mortgage
loan
is delinquent in accordance with the transaction agreements. Such records are
maintained on at least a monthly basis, or such other period specified in the
transaction agreements, and describe the entity’s activities in monitoring
delinquent mortgage loans including, for example, phone calls, letters and
payment rescheduling plans in cases where delinquency is deemed temporary (e.g.,
illness or unemployment).
(9) Adjustments
to interest rates or rates of return for mortgage loans with variable rates
are
computed based on the related mortgage loan documents.
(10) Regarding
any funds held in trust for an obligor (such as escrow accounts): (A) such
funds
are analyzed, in accordance with the obligor’s mortgage loan documents, on at
least an annual basis, or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws; and (C)
such
funds are returned to the obligor within 30 calendar days of full repayment
of
the related mortgage loan, or such other number of days specified in the
transaction agreements.
(11) Payments
made on behalf of an obligor (such as tax or insurance payments) are made on
or
before the related penalty or expiration dates, as indicated on the appropriate
bills or notices for such payments, provided that such support has been received
by the servicer at least 30 calendar days prior to these dates, or such other
number of days specified in the transaction agreements.
(12) Any
late
payment penalties in connection with any payment to be made on behalf of an
obligor are paid from the servicer’s funds and not charged to the obligor,
unless the late payment was due to the obligor’s error or omission.
(13) Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
(14) Delinquencies,
charge-offs and uncollectable accounts are recognized and recorded in accordance
with the transaction agreements.
(15) Any
external enhancement or other support, identified in Item 1114(a)(1) through
(3)
or Item 1115 of Regulation AB, is maintained as set forth in the transaction
agreements.
Static
Pool Information:
Information set forth in Item 1105(a) of Regulation AB.
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(h)
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Section
3.02 of the Existing Purchase Agreement is hereby amended by deleting
the
existing subsections (p), (t), (v) and (bbb) and replacing them with
the
following language:
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(p) Title
Insurance.
The
Mortgage Loan (other than each Cooperative Loan) is covered by an ALTA lender’s
title insurance policy or other generally acceptable form of policy of insurance
acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the jurisdiction
where
the Mortgaged Property is located, insuring the Company, its successors and
assigns, as to the first priority lien, as applicable, of the Mortgage, in
the
original principal amount of the Mortgage Loan (or to the extent that a Mortgage
Note provides for negative amortization, the maximum amount of negative
amortization in accordance with the Mortgage), and against any loss by reason
of
the invalidity or unenforceability of the lien resulting from the provisions
of
the Mortgage providing for adjustment in the Mortgage Interest Rate and Monthly
Payment, subject only to the exceptions contained in clauses (1), (2) and (3)
of
paragraph (j) of this Section 3.02. Where required by state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. Additionally, such lender’s title insurance
policy affirmatively insures ingress and egress, and against encroachments
by or
upon the Mortgaged Property or any interest therein. The Company is the sole
insured of such lender’s title insurance policy, and such lender’s title
insurance policy is in full force and effect and will be in force and effect
upon the consummation of the transactions contemplated by this Agreement. No
claims have been made under such lender’s title insurance policy, and no prior
holder of the Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such lender’s title insurance policy
including without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and no
such unlawful items have been received, retained or realized by the
Company;
(t) Origination:
Payment Terms.
At the
time the Mortgage Loan was originated, the originator was a mortgagee approved
by the Secretary of Housing and Urban Development pursuant to Sections 203
and
211 of the National Housing Act or a savings and loan association, a savings
bank, a commercial bank or similar banking institution which is supervised
and
examined by a Federal or State authority. The Mortgage Interest Rate is (a)
with
respect to fixed rate mortgage loans, the fixed interest rate set forth in
the
Mortgage Note and (b) with respect to ARM Mortgage Loans, adjusted on each
Interest Rate Adjustment Date to equal the Index plus the Gross Margin, rounded
up. Except with respect to interest only Mortgage Loans and negative
amortization mortgage loans, the Mortgage Note is payable each month in equal
monthly installments of principal and interest, with interest calculated and
payable in arrears, and except for any balloon Mortgage Loan, sufficient to
amortize the Mortgage Loan fully by the stated maturity date, over an original
term of not more than thirty years from commencement of amortization. The
interest only Mortgage Loans are payable in equal monthly installments of
interest for the initial three or five year period (as applicable) and
thereafter payable each month in equal monthly installments of principal and
interest, with interest calculated and payable in arrears sufficient to amortize
the Mortgage Loan fully by the stated maturity date, over an original term
of
not more than thirty years from commencement of amortization.
(v) Conformance
with Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Company’s Underwriting
Guidelines in effect at the time the Mortgage Loan was originated, subject
to
the exception guidelines and processes they include. The Mortgage Note and
Mortgage are on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae;
(bbb) Compliance
with Anti-Money Laundering Laws.
The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); the Company has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws and the regulations promulgated by the Office of Foreign Assets
Control (“OFAC”) of the United States Department of Treasury, has conducted the
requisite due diligence in connection with the origination of each Mortgage
Loan
for purposes of the Anti-Money Laundering Laws that also requires regular checks
of the Specially Designated Nationals (“SDN”) list issued by OFAC, including
with respect to the legitimacy of the applicable Mortgagor and the origin of
the
assets used by the said Mortgagor to purchase the property in question, and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws.
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(i)
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Section
3.02 of the Existing Purchase Agreement is hereby amended by adding
the
following language as new Sections 3.02(qqq) and
3.02(rrr):
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(qqq)
Balloon
Mortgage Loans; No Convertibility.
No
Mortgage Loan is convertible to a fixed rate mortgage loan. No Mortgage Loan
is
a balloon mortgage loan that has an original stated maturity of less than seven
(7) years;
(rrr)
Negative
Amortization Mortgage Loans.
Each
negative amortization Mortgage Loan is payable each month in monthly
installments of principal and interest in accordance with the terms of the
related Mortgage Note, as indicated on the related Mortgage Loan Schedule.
With
respect to each negative amortization Mortgage Loan, during the term of the
Mortgage Loan, the unpaid principal balance of the Mortgage Loan (not including
Mortgage Loans where the related Mortgaged Property is located in the state
of
New York) shall not exceed 110% of the initial approved principal balance of
the
Mortgage Loan. During the term of each negative amortization Mortgage Loan
where
the related Mortgaged Property is located in the state of New York, the unpaid
principal balance of the Mortgage Loan shall not exceed 115% of the initial
unpaid principal balance of the Mortgage Loan.
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(j)
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Section
5.02 of the Existing Purchase Agreement is hereby amended by adding
the
following language at the end
thereof:
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The
Company shall promptly notify the Purchaser of (i) any litigation or
governmental proceedings pending against the Company of the type described
in
Section 3.01(g) or (ii) any affiliations or relationships that may develop
following a Securitization Transfer between the Company and any of the Persons
identified in Item 1119 of Regulation AB.
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(k)
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Section
6.04 of the Existing Purchase Agreement is hereby amended by deleting
the
existing section in its entirety and replacing it with the following
language:
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Section
6.04 Annual
Statement as to Compliance.
The
Company shall deliver to the Purchaser, on or before March 1st of each year
beginning March 1, 2007, the servicer compliance statement required by Item
1123
of Regulation AB, which as of the date hereof requires a statement to the effect
that (i) an authorized officer of the Company has reviewed (or a review has
been
made under its supervision) of the Company’s activities under this Agreement
during the prior calendar year and (ii) to the best of such officers’ knowledge,
based on such review, the Company has fulfilled all of its obligations under
this Agreement in all respects throughout the period covered by the prior
calendar year or, if there has been a failure to fulfill any such obligation
in
any respect, a statement of such failure known to such officer and the nature
and the status thereof.
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(l)
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Section
6.05 of the Existing Purchase Agreement is hereby amended by deleting
the
existing section in its entirety and replacing it with the following
language:
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Section
6.05 Annual
Independent Public Accountants’ Servicing Report or Attestation.
On
or
before March 1st of each year beginning March 1, 2007, furnish to the Purchaser
a report by a registered public accounting firm that attests to, and reports
on,
the assessment made by the Company pursuant to Subsection 6.08, as required
by
Rules 13a-18 and 15d-18 of the Securities Exchange Act and Item 1122(b) of
Regulation AB, which attestation shall be in accordance with Rule 1-02(a)(3)
and
Rule 2-02(g) of Regulation S-X under the Securities Act and the Securities
Exchange Act.
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(m)
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The
Existing Purchase Agreement is hereby amended by adding the following
language as new Sections 6.07, 6.08 and
6.09.
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Section
6.07 Xxxxxxxx-Xxxxx.
With
respect to any Mortgage Loans conveyed in a Securitization Transfer, the Company
agrees that on or before March 1st of each year, the Company shall deliver
to
the depositor, the trustee and the master servicer, and their officers,
directors and affiliates, a certification in the form attached as Exhibit
J
hereto,
executed by the senior officer in charge of servicing at the Company for use
in
connection with any Form 10-K to be filed with the Securities and Exchange
Commission with respect to the securitization trust. The Company shall indemnify
and hold harmless the Person acting as depositor in the Securitization Transfer,
the Person acting as trustee in the Securitization transaction, the master
servicer and their respective officers, directors and Affiliates, from and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments and other costs and expenses
arising out of or based upon any breach of the Company’s obligations under this
paragraph or any material misstatement or omission, negligence, bad faith or
willful misconduct of the Company in connection therewith. If the
indemnification provided for in the preceding sentence is unavailable or
insufficient to hold harmless any indemnified party, then the Company agrees
that it shall contribute to the amount paid or payable by such indemnified
party
as a result of the losses, claims, damages or liabilities of such indemnified
party in such proportion as is appropriate to reflect the relative fault of
such
indemnified party, on the one hand, and the Company, on the other, in connection
with a breach of the Company’s obligations under this paragraph or any material
misstatement or omission, negligence, bad faith or willful misconduct of the
Company in connection therewith.
Section
6.08 Assessment
of Servicing Compliance.
The
Company shall deliver to the Purchaser or its designee on or before March 1st
of
each year, beginning March 1, 2007, a report reasonably satisfactory to the
Purchaser regarding its assessment of compliance with Servicing Criteria as
required by Rules 13a-18 and 15d-18 of the Securities Exchange Act and Item
1122
of Regulation AB, which as of the date hereof require a report by an authorized
officer of the Company that contains the following:
(a) A
statement by such officer of its responsibility of assessing the Servicing
Criteria applicable to the Company;
(b) A
statement by such officer that it used the Servicing Criteria to assess
compliance with the Servicing Criteria applicable to the Company;
(c) A
statement by such officer of the Company’s compliance with the applicable
Servicing Criteria as of the immediately preceding December 31 and for the
period covered by the preceding calendar year and disclosure of any material
instance of noncompliance with respect thereto;
(d) A
statement that a registered public accounting firm has issued an attestation
report on the Company’s compliance with the applicable Servicing Criteria as of
the immediately preceding December 31, and for the period covered by the
preceding calendar year; and
(e) A
statement as to which of the Servicing Criteria, if any, are not applicable
to
the Company (which statement shall be based on the activities it performs with
respect to asset-backed securities transactions taken as a whole involving
the
Company that are backed by the same asset type as the Mortgage
Loans).
Section
6.09 Subservicing.
The
Company shall not hire or otherwise utilize a subservicer or other subcontractor
hereunder, or permit any subservicer or subcontractor to itself utilize the
services of any subservicer or subcontractor, without the prior written consent
of the Purchaser and its designee. Any such subservicer must agree in writing
to
comply with the provisions of Sections 6.04, 6.05, 6.08 and the sixth paragraph
of Section 7.01 to the same extent as if such subservicer were the Company,
and
with this Section 6.09 and to provide such information relating to such
subservicer as the Purchaser or its designee may request from time to time
in
order to permit the Purchaser or its designee to comply with Regulation AB
in
connection with any Securitization Transfer. Any subcontractor that performs
any
of the functions identified in Item 1122(d) of Regulation AB must agree in
writing that, if the Purchaser determines that such subcontractor was
“participating in the servicing function” within the meaning of Item 1122, such
subcontractor will comply with the provisions of Sections 6.05 and 6.08 to
the
same extent as if such subcontractor were the Company.
|
(n)
|
Section
7.01 of the Existing Purchase Agreement is hereby amended by deleting
the
existing section in its entirety and replacing it with the following
language:
|
Section
7.01 Removal
of Mortgage Loans from Inclusion Under this Agreement Upon a Pass-Through
Transfer on One or More Reconstitution Dates.
The
Purchaser and the Company agree that with respect to some or all of the Mortgage
Loans, from time to time the Purchaser shall effect a Whole Loan Transfer,
a
Pass-Through Transfer or an Agency Transfer, retaining the Company as the
servicer thereof, or as applicable the “seller/servicer”. On the related
Reconstitution Date, the Mortgage Loans transferred shall cease to be covered
by
this Agreement.
The
Company shall cooperate with the Purchaser in connection with any Transfer
contemplated by the Purchaser pursuant to this Section 7.01. In that connection,
the Company shall (a) execute any Reconstitution Agreement within a reasonable
period of time after receipt of any Reconstitution Agreement which time shall
be
sufficient for the Company and Company’s counsel to review such Reconstitution
Agreement, but such time shall not exceed ten (10) Business Days after such
receipt, and (b) provide to the trustee or a third party purchaser, subject
to
any Reconstitution Agreement and/or the Purchaser: (i) any and all information
and appropriate verification of information which may be reasonably available
to
the Company, whether through letters of its auditors (the reasonable
out-of-pocket cost of which shall be borne by the Purchaser) and counsel or
otherwise, as the Purchaser shall reasonably request; (ii) restate each of
the
representations and warranties set forth in the Section 3.01 as of the Closing
Date, and (iii) such additional representations, warranties, covenants, opinions
of counsel, letters from auditors, and certificates of public officials or
officers of the Company as are reasonably believed necessary by the trustee,
such third party purchaser, any master servicer, any rating agency or the
Purchaser, as the case may be, in connection with such transactions; provided,
however, that these items shall not be more onerous than such similar items
set
forth herein, and (c) to deliver to Purchaser and any prospective purchaser
within three (3) Business Days after request by Purchaser or prospective
purchaser, information, in form and substance satisfactory to Purchaser and
such
prospective purchaser, with respect to each originator of the Mortgage Loans
(x)
reasonably requested by the Purchaser or (y) required by Item 1110 of Regulation
AB under the Securities Act and the Securities Exchange Act, which as of the
date hereof requires the following information: (i) the originator’s form of
organization; and (ii) a description of the originator’s origination program and
how long the originator has been engaged in originating residential mortgage
loans, which description must include a discussion of the originator’s
experience in originating mortgage loans of the same type as the Mortgage Loans
and information regarding the size and composition of the originator’s
origination portfolio as well as information that may be material, in the good
faith judgment of the Purchaser, to an analysis of the performance of the
Mortgage Loans, such as the originators’ credit-granting or underwriting
criteria for mortgage loans of the same type as the Mortgage Loans; and (d)
to
deliver to the Purchaser and any prospective purchaser within three (3) Business
Days after request by Purchaser, Static Pool Information with respect to those
mortgage loans that were originated by the originator of the Mortgage Loans
and
which are of the same type as the Mortgage Loans, which as of the date hereof
require Static Pool Information regarding delinquencies, cumulative losses
and
prepayments by vintage origination year or prior securitized pools, as
applicable. A vintage origination year represents mortgage loans originated
during the same year. Such Static Pool Information shall be for the prior five
years or for so long as the originator has been originating (in the case of
data
by vintage origination year) or securitizing (in the case of data by prior
securitized pools) such mortgage loans, if originating for less than five years.
The Static Pool Information for each vintage origination year or prior
securitized pool, as applicable, shall be presented in monthly increments over
the life of the mortgage loans included in the vintage origination year or
prior
securitized pool.
The
Assignments of Mortgage are generally required to be recorded by or on behalf
of
the Company in the appropriate offices for real property records; provided
however, the Company shall not cause to be recorded any Assignment which relates
to a Mortgage Loan in a jurisdiction where either the Rating Agencies (in the
case of Agency or Pass-Through Transfers) or purchasers (in the case of Whole
Loan Transfers) do not require recordation; provided further, however,
notwithstanding the foregoing, upon the occurrence of certain events set forth
in the pooling agreement (in the case of and Agency or Pass-Through Transfer),
each such assignment of Mortgage shall be recorded by the master servicer or
the
trustee as set forth in the Reconstitution Agreement. Any costs associated
with
the recording of such Assignments of Mortgage and other relevant documents
will
be borne by the Company. In the event that Purchaser sells any Mortgage Loans
in
a Whole Loan Transfer and the subsequent purchaser requests recorded Assignments
of Mortgage, the Company, shall at its expense cause to be recorded any
Assignments of Mortgage.
All
Mortgage Loans not sold or transferred pursuant to a Pass-Through Transfer
and
any Mortgage Loans repurchased by the Purchaser pursuant to Section 7.02 hereof,
shall be subject to this Agreement and shall continue to be serviced in
accordance with the terms of this Agreement and with respect thereto this
Agreement shall remain in full force and effect.
The
Purchaser shall pay the Seller’s reasonable legal fees for the review of any
matters related to a Transfer or Reconstitution Agreement and shall reimburse
the Company for any out-of-pocket expenses incurred in connection with entering
into any Reconstitution Agreement.
In
connection with any Securitization Transfer, the Servicer shall, if requested
by
the Purchaser or its designee, deliver to the Purchaser or its designee within
three (3) Business Days after such request information, in form and substance
satisfactory to the Purchaser or such designee, with respect to such Servicer
information reasonably requested by the Purchaser or its designee and the
information set forth under Item 1108(b) and 1108(c) of Regulation AB
(collectively, the “Servicer
Information”),
which
as of the date hereof includes:
(1) a
description of the Servicer’s form of organization;
(2) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for the servicing function it will perform under this Agreement
and any Reconstitution Agreements; information regarding the size, composition
and growth of the Servicer’s portfolio of mortgage loans of the type similar to
the Mortgage Loans and information on factors related to the Servicer that
may
be material, in the good faith judgment of the Purchaser, to any analysis of
the
servicing of the Mortgage Loans or the related asset-backed securities, as
applicable (including, without limitation, whether any prior securitizations
of
mortgage loans of the type similar to the Mortgage Loans involving the Servicer
have defaulted or experienced an early amortization or other performance
triggering event because of servicing; the extent of outsourcing the Servicer
utilizes; whether there has been previous disclosure of noncompliance with
Servicing Criteria with respect to other securitizations involving the Servicer;
whether there has been any termination of the Company as servicer in a mortgage
loan securitization; and whether in a mortgage loan securitization a servicing
performance test or trigger that could have resulted in the termination of
the
Company as servicer was reached, whether or not the Company was so
terminated);
(3) a
description of any material changes to the Servicer’s policies or procedures in
the servicing function it will perform under this Agreement and any
Reconstitution Agreements for mortgage loans of the type similar to the Mortgage
Loans during the past three years;
(4) information
regarding the Servicer’s financial condition to the extent that there is a risk
that the effect on one or more aspects of servicing resulting from such
financial condition could have an impact on the performance of the securities
issued in the Securitization Transfer, or on servicing of mortgage loans of
the
same asset type as the Mortgage Loans;
(5) statistical
information regarding advances made by the Servicer on the Mortgage Loans and
the Servicer’s overall servicing portfolio for the past three years;
(6) the
Servicer’s process for handling delinquencies, losses, bankruptcies and
recoveries, such as through liquidation of REO Properties, sale of the Mortgage
Loans or workouts; and
(7) the
Servicer’s processes and procedures designed to address any special or unique
factors involved in servicing loans of the same type as the Mortgage
Loans.
The
Servicer shall indemnify the Purchaser, each affiliate of the Purchaser and
each
underwriter as placement agent participating in the Reconstitution and each
Person who controls the Purchaser or such affiliate and their respective present
and former directors, officers, employees and agents, and hold each of them
harmless from and against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any other costs,
fees
and expenses that each of them may sustain arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in
the
information provided by or on behalf of the Servicer regarding the Servicer,
the
Servicer’s servicing practices or the performance of the Mortgage Loans set
forth in any offering document prepared in connection with any Reconstitution.
For purposes of the previous sentence, “Purchaser” shall mean the Person then
acting as the Purchaser under this Agreement and any and all Persons who
previously were “Purchasers” under this Agreement.
|
(o)
|
Section
10.01(ii) of the Existing Purchase Agreement is hereby amended by
deleting
the existing section in its entirety and replacing it with the following
language:
|
(ii) failure
by the Company duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Company set forth in this
Agreement which continues unremedied for a period of 30 days (or, in the case
of
(i) the annual statement of compliance required under Section 6.04, (ii) the
annual independent public accountants’ servicing report or attestation required
under Section 6.05, (iii) the annual assessment of servicing compliance required
under Section 6.08, or (iv) the certification required under Exhibit J, five
(5)
days) after the date on which written notice of such failure, requiring the
same
to be remedied, shall have been given to the Servicer by the Purchaser; after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Purchaser; or
The
Existing Purchase Agreement is hereby amended by adding Exhibit
A
attached
hereto as Exhibit
J
to the
Existing Purchase Agreement:
Effective
Date.
This
Amendment shall become effective on the date (the “Amendment
Effective Date”)
on
which the following conditions precedent shall have been satisfied:
|
(a)
|
On
the Amendment Effective Date, the Purchaser shall have received the
following, each of which shall be satisfactory to the
Purchaser:
|
|
(i)
|
this
Amendment, executed and delivered by a duly authorized officer of
the
Seller and the Purchaser;
|
|
(ii)
|
such
other documents as the Purchaser or counsel to the Purchaser may
reasonably request.
|
|
(b)
|
On
the Amendment Effective Date, (i) the Seller shall be in compliance
with
all the representations and warranties set forth in Section 3.01
of the
Purchase Agreement, as amended by this Amendment No. 2, on its part
to be
observed or performed, (ii) no default shall have occurred and be
continuing on such date.
|
|
(p)
|
Except
as expressly amended and modified by this Amendment, the Existing
Purchase
Agreement shall continue to be, and shall remain, in full force and
effect
in accordance with its terms.
|
|
(q)
|
This
Amendment No. 2 shall be construed in accordance with the laws of
the
State of New York, and the obligations, rights and remedies of the
parties
hereunder shall be determined in accordance with such
laws.
|
|
(r)
|
This
Amendment No. 2 may be executed in one or more counterparts and by
different parties hereto on separate counterparts, each of which,
when so
executed, shall constitute one and the same
agreement.
|
|
(s)
|
This
Amendment No. 2 shall inure to the benefit of and be binding upon
the
Purchaser and the Seller under the Existing Purchase Agreement, and
their
respective successors and permitted
assigns.
|
[Signatures
Commence on Following Page]
IN
WITNESS WHEREOF, the parties have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first
above written.
|
XXXXXX
BROTHERS BANK, FSB
|
||
|
Purchaser
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
|
INDYMAC
BANK, F.S.B.,
|
||
|
Seller
|
||
| |
|
|
| By: | ||
|
|
||
| Name: | ||
|
|
||
| Title: | ||
|
|
||
EXHIBIT
A
EXHIBIT
J
ANNUAL
CERTIFICATION
|
Re:
|
[_______________]
(the “Trust”),
Mortgage Securitization Certificates, Series [_____], issued pursuant
to
the [the Trust Agreement] [the Pooling and Servicing Agreement] [the
Servicing Agreement], dated as of [_____], 200[__] (the [the Trust
Agreement] [the Pooling
and Servicing Agreement][the
Servicing Agreement], among [_____], as depositor (the “Depositor”),
[_____], as trustee (the “Trustee”),
[_____], as master servicer (the “Master Servicer”) [_____], as a servicer
(the “Servicer”),
and [_____], as responsible party
|
I,
[identify the certifying individual], certify to the Depositor, the Master
Servicer and the Trustee, and their officers, directors and affiliates, and
with
the knowledge and intent that they will rely upon this certification,
that:
| 1. |
The
servicing information required to be provided to the Trustee and
the
Master Servicer by [_______] as a Servicer under [the Trust Agreement]
[the Pooling and Servicing Agreement] [the Servicing Agreement] has
been
so provided;
|
| 2. |
I
am responsible for reviewing the activities performed by [_______]
as a
Servicer under [the Trust Agreement] [the Pooling and Servicing Agreement]
[the Servicing Agreement] and based upon my knowledge and the annual
compliance review required under [the Trust Agreement] [the Pooling
and
Servicing Agreement] [the Servicing Agreement], and except as disclosed
in
the annual compliance statement required to be delivered to the Trustee
and the Master Servicer in accordance with the terms of [the Trust
Agreement] [the Pooling and Servicing Agreement] [the Servicing Agreement]
(which has been so delivered to the Trustee and the Master Servicer),
[_________] as a Servicer has fulfilled its obligations under [the
Trust
Agreement] [the Pooling and Servicing Agreement] [the Servicing
Agreement]; and
|
| 3. |
[If
the Securitization Transfer occurs in 2005] All significant deficiencies
relating to the Servicer’s compliance with the minimum servicing standards
for purposes of the report provided by an independent public accountant,
after conducting a review conducted in compliance with the Uniform
Single
Attestation Program for Mortgage Bankers or similar procedure, as
set
forth in [the Trust Agreement] [the Pooling and Servicing Agreement]
[the
Servicing Agreement], have been disclosed to such accountant and
the
Master Servicer and are included in such report; and
|
L-1
| 4. |
[If
the Securitization Transfer occurs in 2006 or thereafter.] The report
on
assessment of compliance with Servicing Criteria and its related
accountant’s attestation report required to be delivered by us under the
[the Trust Agreement] [the Pooling and Servicing Agreement] [the
Servicing
Agreement] have been delivered to the Trustee and the Master Servicer
and
complied with the requirements thereunder and any material instance
of
non-compliance with the Servicing Criteria has been disclosed on
such
reports.
|
Capitalized
terms used but not defined herein shall have the meanings assigned in [the
Trust
Agreement] [the Pooling and Servicing Agreement] [the Servicing
Agreement].
Date: _________________________
_______________________________
[Signature]
[Title]
|
L-2
EXHIBIT
C
Assignment
and Assumption Agreement
C-1
EXHIBIT
D
Schedule
of Serviced Mortgage Loans
[To
be
retained in a separate file at the Washington, DC offices of XxXxx Xxxxxx
LLP]
E-1
EXHIBIT
E
ANNUAL
CERTIFICATION
Structured
Asset Securities Corporation
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Aurora
Loan Services LLC
00000
Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
|
Re:
|
Xxxxxx
XS Trust Mortgage
Pass-Through Certificates, Series 2007-1
|
Reference
is made to the Reconstituted Servicing Agreement, dated as of February 1, 2007
(the “Agreement”), by and among Xxxxxx Brothers Holdings Inc., as seller and
IndyMac Bank, F.S.B., as servicer (the “Servicer”). I, [identify the certifying
individual], a [title] of the Servicer hereby certify to Aurora Loan Services
LLC (the “Master Servicer”) and Structured Asset Securities Corporation (the
“Depositor”), and their respective officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification,
that:
|
1.
|
I
have reviewed the information required to be delivered to the Master
Servicer pursuant to the Agreement (the “Servicing
Information”).
|
|
2.
|
Based
on my knowledge, the Servicing Information does not contain any material
untrue information or omit to state information necessary to make
the
Servicing Information, in light of the circumstances under which
such
information was provided, not misleading as of the date of this
certification;
|
|
3.
|
Based
on my knowledge, the Servicing Information has been provided to the
Master
Servicer when and as required under the Agreement;
and
|
|
4.
|
I
am responsible for reviewing the activities performed by the Servicer
under the Agreement, and based upon my knowledge and the review required
under the Agreement, and except as disclosed in writing to you on
or prior
to the date of this certification either in the accountants’ report
required under the Agreement or in disclosure a copy of which is
attached
hereto, the Servicer has, for the period covered by the Form 10-K
Annual
Report, fulfilled its obligations under this
Agreement.
|
IN
WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the
Servicer.
| Dated: | By: | |||
|
Name:
|
||||
| Title: |
E-1
EXHIBIT
F
TRANSACTION
PARTIES
Sponsor
and Seller: Xxxxxx Brothers Holdings Inc.
Depositor:
Structured Asset Securities Corporation
Trustee:
LaSalle Bank National Association
Securities
Administrator: None
Master
Servicer: Aurora Loan Services LLC
Credit
Risk Manager: None
PMI
Insurer(s): Mortgage Guaranty Insurance Corporation and PMI Mortgage Insurance
Co.
Interest
Rate Swap Counterparty: ABN AMRO Bank N.V.
Interest
Rate Cap Counterparty: ABN AMRO Bank N.V.
Primary
Servicer(s): Aurora Loan Services LLC, IndyMac Bank, F.S.B., Xxxxx Fargo Bank,
N.A. and GreenPoint Mortgage Funding, Inc.
Primary
Originator(s): Xxxxxx Brothers Bank, FSB, IndyMac Bank, F.S.B., Xxxxx Fargo
Bank, N.A. and GreenPoint Mortgage Funding, Inc.
Custodian(s):
U.S. Bank National Association, LaSalle Bank National Association, Deutsche
Bank
National Trust Company and Xxxxx Fargo Bank, N.A.
F-1
EXHIBIT
G
SERVICING
CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT
OF COMPLIANCE
The
Servicer shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria”, as identified by a xxxx in the column titled
“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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
|
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.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
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.
|
X
|
G-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
|
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.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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).
|
X
|
|
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.
|
X
|
G-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
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.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
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.
|
|
|
|
|
|
G-3
EXHIBIT
H
[Date]
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Reconstituted Servicing Agreement dated as of February 1, 2007 (the
“Agreement”), by and among Xxxxxx Brothers Holdings Inc., IndyMac Bank,
F.S.B. (the “Servicer”)Aurora Loan Services LLC (the “Master Servicer”),
and acknowledged by LaSalle Bank National Association, as Trustee
(the
“Trustee”).
|
I,
[identify the certifying individual], the [title] of the Servicer, certify
to
the Trustee, the Master Servicer and Structured Asset Securities Corporation
(the “Depositor”), and their officers, with the knowledge and intent that they
will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer 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 Servicer
during 200[ ] that were delivered by the Servicer to any of the Depositor,
the
Master Servicer, and the Trustee pursuant to the Agreement (collectively, the
“Company Servicing Information”);
(2) 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;
(3) 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, the
Master Servicer and the Trustee;
(4) I
am
responsible for reviewing the activities performed by the Servicer 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
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
H-1
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the Depositor, the Master Servicer and the
Trustee. Any material instances of noncompliance described in such reports
have
been disclosed to the Depositor, the Master Servicer and the Trustee. Any
material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
| Date: | ||
| |
|
|
| By: | ||
| Name: | ||
| Title: | ||
H-2
