Lehman Brothers Bank, F.S.B.,
▇▇▇▇▇▇
Brothers Bank, F.S.B.,
Purchaser
and
IndyMac
Bank, F.S.B.,
Company
|
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.
|
33
|
|
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.
|
37
|
|
Section
4.06
|
Establishment
of and Deposits to Escrow Account.
|
39
|
|
Section
4.07
|
Permitted
Withdrawals From Escrow Account.
|
39
|
|
Section
4.08
|
Payment
of Taxes, Insurance and Other Charges.
|
40
|
|
Section
4.09
|
Protection
of Accounts.
|
40
|
|
Section
4.10
|
Maintenance
of Hazard Insurance.
|
41
|
-ii-
|
Section
4.11
|
Maintenance
of Mortgage Impairment Insurance.
|
42
|
|
Section
4.12
|
Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
|
43
|
|
Section
4.13
|
Inspections.
|
43
|
|
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.
|
45
|
|
Section
4.17
|
Real
Estate Owned Reports.
|
46
|
|
Section
4.18
|
Liquidation
Reports.
|
46
|
|
Section
4.19
|
Reports
of Foreclosures and Abandonments of Mortgaged Property.
|
46
|
|
Section
4.20
|
Notification
of Adjustments.
|
46
|
|
Section
4.21
|
Credit
Reporting
|
47
|
|
ARTICLE
V
PAYMENTS
TO PURCHASER
|
||
|
Section
5.01
|
Remittances.
|
47
|
|
Section
5.02
|
Statements
to Purchaser.
|
48
|
|
Section
5.03
|
Monthly
Advances by Company.
|
48
|
|
[Section
5.04
|
Due
Dates Other Than the First of the Month.]
|
49
|
|
ARTICLE
VI
GENERAL
SERVICING PROCEDURES
|
||
|
Section
6.01
|
Transfers
of Mortgaged Property.
|
49
|
|
Section
6.02
|
Satisfaction
of Mortgages and Release of Mortgage Files.
|
50
|
|
Section
6.03
|
Servicing
Compensation.
|
50
|
|
Section
6.04
|
Annual
Statement as to Compliance.
|
51
|
|
Section
6.05
|
Annual
Independent Public Accountants’ Servicing Report.
|
51
|
|
Section
6.06
|
Right
to Examine Company Records.
|
51
|
|
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.
|
51
|
|
Section
7.02
|
Purchaser’s
Repurchase and Indemnification Obligations.
|
52
|
|
ARTICLE
VIII
COMPANY
TO COOPERATE
|
||
|
Section
8.01
|
Provision
of Information.
|
53
|
|
Section
8.02
|
Financial
Statements; Servicing Facility.
|
53
|
-iii-
|
ARTICLE
IX
THE
COMPANY
|
||
|
Section
9.01
|
Indemnification;
Third Party Claims.
|
54
|
|
Section
9.02
|
Merger
or Consolidation of the Company.
|
54
|
|
Section
9.03
|
Limitation
on Liability of Company and Others.
|
55
|
|
Section
9.04
|
Limitation
on Resignation and Assignment by Company.
|
55
|
|
ARTICLE
X
DEFAULT
|
||
|
Section
10.01
|
Events
of Default.
|
56
|
|
Section
10.02
|
Waiver
of Defaults.
|
58
|
|
ARTICLE
XI
TERMINATION
|
||
|
Section
11.01
|
Termination.
|
58
|
|
Section
11.02
|
Termination
Without Cause.
|
58
|
|
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
||
|
Section
12.01
|
Successor
to Company.
|
59
|
|
Section
12.02
|
Amendment.
|
60
|
|
Section
12.03
|
Governing
Law.
|
60
|
|
Section
12.04
|
Duration
of Agreement.
|
60
|
|
Section
12.05
|
Notices.
|
60
|
|
Section
12.06
|
Severability
of Provisions.
|
61
|
|
Section
12.07
|
Relationship
of Parties.
|
61
|
|
Section
12.08
|
Execution;
Successors and Assigns.
|
61
|
|
Section
12.09
|
Recordation
of Assignments of Mortgage.
|
61
|
|
Section
12.10
|
Assignment
by Purchaser.
|
61
|
|
Section
12.11
|
No
Personal Solicitation.
|
61
|
|
Section
12.12
|
Appointment
and Designation of Master Servicer.
|
62
|
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 ▇▇▇▇▇▇ Brothers Bank, F.S.B., as purchaser
(the “Purchaser”),
and IndyMac Bank, F.S.B., as seller and servicer (the “Company”).
W I T N E S S E T H:
WHEREAS,
from time to time, the Company desires to sell to the Purchaser, and from time
to time, the Purchaser desires to purchase from the Company certain conventional
fixed and adjustable rate residential first lien mortgage loans (the “Mortgage
Loans”) on a servicing retained basis as described herein, and which shall be
delivered as whole loans;
WHEREAS,
each Mortgage Loan is secured by a mortgage, deed of trust or other security
instrument creating a first lien on a residential dwelling located in the
jurisdiction indicated on the Mortgage Loan Schedule, which is annexed hereto
as
Exhibit A; and
WHEREAS,
the Purchaser and the Company wish to prescribe the manner of purchase of the
Mortgage Loans and the management, servicing and control of the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the mutual agreements hereinafter set forth,
and
for other good and valuable consideration, the receipt and adequacy of which
is
hereby acknowledged, the Purchaser and the Company agree as
follows:
ARTICLE
I
DEFINITIONS
Whenever
used herein, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted
Servicing Practices:
With respect to any Mortgage Loan, those mortgage servicing practices of prudent
mortgage lending institutions which service mortgage loans of the same type
as
such Mortgage Loan in the jurisdiction where the related Mortgaged Property,
or,
with respect to a Cooperative Loan, where the related Cooperative Project,
is
located.
Acknowledgment
Agreement:
The document, substantially in the form of Exhibit I, to be executed by the
Purchaser and the Company on or prior to each Closing Date which document shall
amend the Mortgage Loan Schedule attached as Exhibit A hereto to reflect the
addition of Mortgage Loans to such Exhibit A and which document reflects the
addition of Mortgage Loans which are subject to the terms and conditions of
this
Agreement.
Agency
Transfer:
The sale or transfer by Purchaser of some or all of the Mortgage Loans to ▇▇▇▇▇▇
▇▇▇ under its Cash Purchase Program or its MBS Swap Program (Special Servicing
Option) or to ▇▇▇▇▇▇▇ Mac under its ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ 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 ▇▇▇▇▇’▇ Investors Service, Inc. and the
long-term debt obligations of such holding company) are rated “P-1” by ▇▇▇▇▇’▇
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
▇▇▇▇▇’▇ 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.
▇▇▇▇▇▇
Mae:
▇▇▇▇▇▇ ▇▇▇, or any successor thereto.
▇▇▇▇▇▇
Mae Guides:
The ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ Guide and the ▇▇▇▇▇▇ 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.
▇▇▇▇▇▇▇
Mac:
▇▇▇▇▇▇▇ 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.
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.
-7-
Mortgage
Note:
The note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
-8-
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:
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇’▇ 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 ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
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
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac eligibility requirements or which would require notification to
either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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, (2) approved by a specific corporate or banking
association resolution by the Company’s board of directors, which approval shall
be reflected in the minutes of said board, and (3) 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;
-18-
(b) Payments
Current.
All payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note have been made and credited. No
payment required under the Mortgage Loan is 30 days or more delinquent nor
has
any payment under the Mortgage Loan been delinquent for 30 days or more in
the
12 months preceding the related Closing Date. The first Monthly Payment was
made
with respect to the Mortgage Loan within 30 days of its Due Date;
(c) No
Outstanding Charges.
There are no material defaults in complying with the terms of the Mortgage,
and
all taxes, governmental assessments, insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents which previously became
due and owing have been paid, or, with respect to each Escrow Mortgage Loan,
an
escrow of funds has been established in an amount sufficient to pay for every
such item which remains unpaid and which has been assessed but is not yet due
and payable. The Company has not advanced funds, or induced, solicited or
knowingly received any advance of funds by a party other than the Mortgagor,
directly or indirectly, for the payment of any amount required under the
Mortgage Loan, except for interest accruing from the date of the Mortgage Note
or date of disbursement of the Mortgage Loan proceeds, whichever is earlier,
to
the day which precedes by one month the Due Date of the first installment of
principal and interest;
(d) Original
Terms Unmodified.
The terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered or modified in any respect, except by a written instrument which has
been recorded, if necessary to protect the interests of the Purchaser and which
has been delivered to the Custodian. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related PMI
Policy and the title insurer, to the extent required by the policy, and its
terms are reflected on the Mortgage Loan Schedule. No Mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
approved by the issuer of any related PMI Policy and the title insurer, to
the
extent required by the policy, and which assumption agreement is part of the
Mortgage Loan File delivered to the Custodian and the terms of which are
reflected in the Mortgage Loan Schedule;
(e) No
Defenses.
The Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto, and no Mortgagor was a debtor
in
any state or federal bankruptcy or insolvency proceeding, or was subject to
a
foreclosure proceeding, at the time the Mortgage Loan was originated or during
the 24 months prior to origination;
(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 ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ 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 excess over 75% of the Appraised Value is and will be insured
as
to payment defaults by a PMI Policy 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 ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by a title insurer
acceptable to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Mac
or
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇ eligibility requirements for sale to ▇▇▇▇▇▇ Mae or is located
in a condominium or planned unit development project which has received ▇▇▇▇▇▇
▇▇▇ project approval and the representations and warranties required by ▇▇▇▇▇▇
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.
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 ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇ 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).
(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.
-29-
(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;
(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
-37-
(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;
(v) to
reimburse itself for expenses incurred and reimbursable to it pursuant to
Section 9.01;
-38-
(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 ▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ Mae requirements, and secure from the owner’s association
its agreement to notify the Company promptly of any change in the insurance
coverage or of any condemnation or casualty loss that may have a material effect
on the value of the Mortgaged Property as security.
The
Company shall cause to be maintained on each Mortgaged Property earthquake
or
such other or additional insurance as may be required pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance, or pursuant to the requirements of any
private mortgage guaranty insurer, or as may be required to conform with
Accepted Servicing Practices.
In
the event that any Purchaser or the Company shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Company shall communicate and consult with the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Company as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution, which
shall provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
The
Company shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Company
shall
only
accept any such insurance policies from Qualified
Insurers
licensed to do business in the jurisdiction in which the Mortgaged Property
is
located. The Company shall determine that such policies provide sufficient
risk
coverage and amounts, that they insure the property owner, and that they
properly describe the property address. The Company shall furnish to the
Mortgagor a formal notice of expiration of any such insurance in sufficient
time
for the Mortgagor to arrange for renewal coverage by the expiration
date.
-42-
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 ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Mortgage-Backed
Securities Selling and Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇’ & 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 insuring that portion of the Mortgage Loan in excess of 75% of
value, 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.
(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.
-45-
(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, a portion of such fee, up to an amount equal to one-half of one
percent (.5%) of the outstanding principal balance of the related Mortgage
Loan,
will be retained by the Company as additional servicing compensation, and any
portion thereof in excess of one-half of one percent (.5%) shall be deposited
in
the Custodial Account for the benefit of the Purchaser. 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 ▇▇▇▇▇▇ ▇▇▇ 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, to the extent provided
in
Section 6.01, 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.
-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.
|
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.
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.
-53-
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.
|
Section
7.02
|
Purchaser’s
Repurchase and Indemnification
Obligations.
|
Upon
receipt by the Company of notice from ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ Mac or the
trustee of a breach of any Purchaser representation or warranty contained in
any
Reconstitution Agreement or a request by ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ Mac or the
trustee, as
the case may be, for
the repurchase of any Mortgage Loan transferred
to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, or
the trustee related to such deficiencies of the related Mortgage Loans
transferred to ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ Mac, or the
trustee.
The
Purchaser shall repurchase from the Company any Mortgage Loan
transferred
to ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Mae, ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ 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 date of such repurchase.
-54-
ARTICLE
VIII
COMPANY
TO COOPERATE
|
Section
8.01
|
Provision
of Information.
|
During
the term of this Agreement, the Company shall furnish to the Purchaser such
periodic, special, or other reports or information and copies or originals
of
any documents contained in the Servicing File for each Mortgage Loan, whether
or
not provided for herein, as shall be necessary, reasonable, or appropriate
with
respect to the Purchaser, any regulatory requirement pertaining to the Purchaser
or the purposes of this Agreement. All such reports, documents or information
shall be provided by and in accordance with all reasonable instructions and
directions which the Purchaser may give.
The
Company shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
|
Section
8.02
|
Financial
Statements; Servicing Facility.
|
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective Purchaser a Consolidated Statement of Operations of the Company
for the most recently completed five fiscal years for which such a statement
is
available, as well as a Consolidated Statement of Condition at the end of the
last two fiscal years covered by such Consolidated Statement of Operations.
The
Company also shall make available any comparable interim statements to the
extent any such statements have been prepared by or on behalf of the Company
(and are available upon request to members or stockholders of the Company or
to
the public at large). If it has not already done so, the Company shall furnish
promptly to the Purchaser copies of the statement specified above.
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 ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇
▇▇▇-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.
-57-
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
(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 ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇
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.
-58-
In
each and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Company, and subject to the succeeding
sentence, may terminate all the rights and obligations of the Company under
this
Agreement and in and to the Mortgage Loans and the proceeds thereof; provided
that, the Company, within 60 days following receipt of such notice from the
Purchaser, shall have the right to deliver to the Purchaser, a firm written
commitment by a third party servicer (an “Acceptable
Commitment”),
which commitment is in form and substance acceptable to the Purchaser in its
sole discretion, to purchase the servicing rights and assume the servicing
obligations hereunder and under any Reconstitution Agreement related to any
of
the Mortgage Loans; provided further that such third party servicer (i) is
acceptable to the Purchaser in its sole discretion, and (ii) by replacing the
Company as servicer, will not cause a downgrade by any Rating Agency rating
the
bonds related to any of the Mortgage Loans issued under any Reconstitution
Agreement. In the event that the Company fails to deliver an Acceptable
Commitment to the Purchaser within 60 days, all rights and obligations of the
Company to service the Mortgage Loans shall automatically terminate and become
the Purchaser’s.
Upon
receipt by the Company of such written notice, all authority and power of the
Company under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 13.01. Upon written request from any Purchaser, the Company shall
prepare, execute and deliver to the successor entity designated by the Purchaser
any and all documents and other instruments, place in such successor’s
possession all Mortgage Files, and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including but not limited to the transfer and endorsement or
assignment of the Mortgage Loans and related documents, at the Company’s sole
expense. The Company shall cooperate with the Purchaser and such successor
in
effecting the termination of the Company’s responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Company to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
|
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.
-59-
ARTICLE
XI
TERMINATION
|
Section
11.01
|
Termination.
|
This
Agreement shall terminate upon either: (i) the later of the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of any REO Property with respect to the last Mortgage
Loan and the remittance of all funds due hereunder; (ii) mutual consent of
the
Company and the Purchaser in writing; or (iii) if any Event of Default is not
cured within the applicable cure period, subject to the provisions of Section
10.01 hereof.
|
Section
11.02
|
Termination
Without Cause.
|
The
Purchaser may terminate, at its sole option, any rights the Company may have
hereunder, without cause, as provided in this Section 11.02. Any such
notice of termination shall be in writing and delivered to the Company by
registered mail as provided in Section 13.05.
In
the event the Purchaser terminates the Company without cause with respect to
some or all of the Mortgage Loans, the Purchaser shall be required to pay to
the
Company a Termination Fee in an amount equal to 1.50% of the Stated Principal
Balance of the terminated Mortgage Loans as of the date of such termination.
Purchaser shall also reimburse the Company for all outstanding servicing
advances.
Notwithstanding
and in addition to the foregoing, in the event that (i) a Mortgage Loan becomes
delinquent for a period of 120 days or more (a “Delinquent
Mortgage Loan”)
or (ii) a Mortgage Loan becomes an REO Property, the Purchaser may at its
election terminate this Agreement with respect to such Delinquent Mortgage
Loan
or REO Property without payment of a termination fee therefor, upon 15 days’
written notice to the Company, reimbursement of all outstanding advances, and
payment of any unpaid Servicing Fees.
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.
-60-
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Company and to the Purchaser an instrument accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 3.01, except for subsections (f), (h), (i) and (k) thereof, whereupon
such successor shall become fully vested with all the rights, powers, duties,
responsibilities, obligations and liabilities of the Company, with like effect
as if originally named as a party to this Agreement. Any termination or
resignation of the Company or termination of this Agreement pursuant to Section
9.04, 10.01, 11.01 or 11.02 shall not affect any claims that either party may
have has against the other arising out of the Company’s actions or failure to
act prior to any such termination or resignation.
The
Company shall deliver promptly to the successor servicer the Funds in the
Custodial Account and Escrow Account and all Mortgage Files and related
documents and statements held by it hereunder and the Company shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest in
the
successor all such rights, powers, duties, responsibilities, obligations and
liabilities of the Company.
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.
-61-
|
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.
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secondary
Marketing
or
such other address as may hereafter be furnished to the Purchaser in writing
by
the Company;
(ii) if
to Purchaser:
▇▇▇▇▇▇
Brothers Bank, F.S.B.,
3
World Financial ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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.
-62-
|
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.
|
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.
-63-
|
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.
-64-
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.
▇▇▇▇▇▇
BROTHERS BANK, F.S.B.,
By:__________________________________
Name:________________________________
Title:_________________________________
INDYMAC
BANK, F.S.B.
By:__________________________________
Name:________________________________
Title:_________________________________
-▇▇-
| ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ |
)
|
|
|
)
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 ▇▇▇▇▇▇
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
[Intentionally
Omitted]
A-1
EXHIBIT
B
CONTENTS
OF EACH MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of the
following items, which shall be available for inspection by the Purchaser and
any prospective Purchaser, and which shall be retained by the Company in the
Servicing File or delivered to the Custodian pursuant to Section 2.01 and 2.03
of the Seller’s Warranties and Servicing Agreement to which this Exhibit is
attached (the “Agreement”):
1.
The original Mortgage Note bearing all intervening endorsements, endorsed,
“Pay
to the order of ________________, without recourse” and signed in the name of
the Company or the originator by an authorized officer. In the event that the
Mortgage Loan was acquired by the Company in a merger, the endorsement must
be
by “IndyMac Bank, F.S.B., successor by merger to [name of predecessor]”; and in
the event that the Mortgage Loan was acquired or originated by the Company
while
doing business under another name, the endorsement must be by “IndyMac Bank,
F.S.B., formerly known as [previous name]”.
2.
The original of any guarantee executed in connection with the Mortgage
Note.
3.
The original Mortgage, with evidence of recording thereon or, with respect
to
each Cooperative Loan, the original Pledge Agreement. If in connection with
any
Mortgage Loan, the Company cannot deliver or cause to be delivered the original
Mortgage with evidence of recording thereon on or prior to the related Closing
Date because of a delay caused by the public recording office where such
Mortgage has been delivered for recordation or because such Mortgage has been
lost or because such public recording office retains the original recorded
Mortgage, the Company shall deliver or cause to be delivered to the Purchaser,
a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by
the public recording office, an Officer’s Certificate of the Company stating
that such Mortgage has been dispatched to the appropriate public recording
office for recordation and that the original recorded Mortgage or a copy of
such
Mortgage certified by such public recording office to be a true and complete
copy of the original recorded Mortgage will be promptly delivered to the
Purchaser upon receipt thereof by the Company; or (ii) in the case of a Mortgage
where a public recording office retains the original recorded Mortgage or in
the
case where a Mortgage is lost after recordation in a public recording office,
a
copy of such Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage.
4.
The originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, or a copy of such Mortgage
certified by the related public recording office to be a true and complete
copy
of the original document, or .
5.
The original Assignment of Mortgage, signed by the Company or originator in
blank, which assignment shall be in form and substance acceptable for recording
but not recorded or with respect to each Cooperative Loan, Assignment of Pledge
Agreement. In the event that the Mortgage Loan was acquired by the Company
in a
merger, the assignment must be by “IndyMac Bank, F.S.B., successor by merger to
[name of predecessor]”; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name, the
assignment must be by “IndyMac Bank, F.S.B., formerly known as [previous
name]”
B-1
6.
Originals of all intervening assignments of the Mortgage with evidence of
recording thereon or with respect to each Cooperative Loan, intervening
assignments of the Pledge Agreement, or if any such intervening assignment
has
not been returned from the applicable recording office or has been lost or
if
such public recording office retains the original recorded assignments of
mortgage, the Company shall deliver or cause to be delivered to the Purchaser,
a
photocopy of such intervening assignment, together with (i) in the case of
a
delay caused by the public recording office, an Officer’s Certificate of the
Company stating that such intervening assignment of mortgage has been dispatched
to the appropriate public recording office for recordation and that such
original recorded intervening assignment of mortgage or a copy of such
intervening assignment of mortgage certified by the appropriate public recording
office to be a true and complete copy of the original recorded intervening
assignment of mortgage will be promptly delivered to the Purchaser upon receipt
thereof by the Company; or (ii) in the case of an intervening assignment where
a
public recording office retains the original recorded intervening assignment
or
in the case where an intervening assignment is lost after recordation in a
public recording office, a copy of such intervening assignment certified by
such
public recording office to be a true and complete copy of the original recorded
intervening assignment.
7.
If required, the original policy of primary mortgage guaranty insurance, or
where such insurance is provided by a master policy, a certified true copy
of
the master policy and the original certificate of insurance; and
8.
With respect to each Mortgage Loan other than a Cooperative Loan, the original
or electronic copy (in a form generally acceptable on the secondary market)
mortgagee policy of title insurance, except for those Mortgage Loans originated
within 60 days before the related Closing Date, for which Mortgage Loans the
Company shall have delivered and released to the Purchaser the related binders.
In addition, the Company shall deliver to the Purchaser the original policy
of
title insurance within 90 days after the related Closing Date. The policy must
be properly endorsed, any necessary notices of transfer must be forwarded and
any other action required to be taken must be taken in order to fully protect,
under the terms of the policy and applicable law, Purchaser’s interest as first
mortgagee;
9.
Any security agreement, chattel mortgage or equivalent executed in connection
with the Mortgage.
10.
The original hazard insurance policy and, if required by law, flood insurance
policy, in accordance with Section 7(f) of the Agreement.
11.
With respect to each Cooperative Loan:
(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.
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-3
EXHIBIT
C
MORTGAGE
LOAN DOCUMENTS
The
Mortgage Loan Documents for each Mortgage Loan shall include each of the
following items, which shall be delivered to the Custodian pursuant to Section
2.01 of the Seller’s Warranties and Servicing Agreement to which this Exhibit is
annexed (the “Agreement”):
|
(A)
|
The
original Mortgage Note bearing all intervening endorsements, endorsed,
“Pay to the order of ________________, without recourse” and signed in the
name of the Company or the originator by an authorized officer. In
the
event that the Mortgage Loan was acquired by the Company in a merger,
the
endorsement must be by “IndyMac Bank, F.S.B., successor by merger to [name
of predecessor]”; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name,
the
endorsement must be by “IndyMac Bank, F.S.B., formerly known as [previous
name]”.
|
|
(B)
|
The
original Mortgage, with evidence of recording thereon or, with respect
to
each Cooperative Loan, the original Pledge Agreement. If in connection
with any Mortgage Loan, the Company cannot deliver or cause to be
delivered the original Mortgage with evidence of recording thereon
on or
prior to the related Closing Date because of a delay caused by the
public
recording office where such Mortgage has been delivered for recordation
or
because such Mortgage has been lost or because such public recording
office retains the original recorded Mortgage, the Company shall
deliver
or cause to be delivered to the Purchaser, a photocopy of such Mortgage.
In addition, the Company shall deliver and release to the Purchaser
the
original recorded Mortgage within 90 days after the related Closing
Date.
If the Company fails to deliver the original Mortgage within 90 days
after
the related Closing Date, the Company shall deliver (i) in the case
of a
delay caused by the public recording office, an Officer’s Certificate of
the Company stating that such Mortgage has been dispatched to the
appropriate public recording office for recordation and that the
original
recorded Mortgage or a copy of such Mortgage certified by such public
recording office to be a true and complete copy of the original recorded
Mortgage will be promptly delivered to the Purchaser upon receipt
thereof
by the Company; or (ii) in the case of a Mortgage where a public
recording
office retains the original recorded Mortgage or in the case where
a
Mortgage is lost after recordation in a public recording office,
a copy of
such Mortgage certified by such public recording office to be a true
and
complete copy of the original recorded Mortgage. In addition, the
Company
shall deliver and release to the Purchaser the original recorded
Mortgage
within 90 days after the related Closing Date
.
|
C-4-1
|
(C)
|
The
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, or a copy of such
Mortgage
certified by the related public recording office to be a true and
complete
copy of the original document.
|
|
(D)
|
The
original Assignment of Mortgage, signed in the name of the Company
or
originator, in blank, which assignment shall be in form and substance
acceptable for recording but not recorded or with respect to each
Cooperative Loan, Assignment of Pledge Agreement. In the event that
the
Mortgage Loan was acquired by the Company in a merger, the assignment
must
be by “IndyMac Bank, F.S.B., successor by merger to [name of
predecessor]”; and in the event that the Mortgage Loan was acquired or
originated by the Company while doing business under another name,
the
assignment must be by “IndyMac Bank, F.S.B., formerly known as [previous
name]”
|
|
(E)
|
Originals
of all intervening assignments of the Mortgage with evidence of recording
thereon or with respect to each Cooperative Loan, intervening assignments
of the Pledge Agreement, or if any such intervening assignment has
not
been returned from the applicable recording office or has been lost
or if
such public recording office retains the original recorded assignments
of
mortgage, the Company shall deliver or cause to be delivered to the
Purchaser, a photocopy of such intervening assignment, together with
(i)
in the case of a delay caused by the public recording office, an
Officer’s
Certificate of the Company stating that such intervening assignment
of
mortgage has been dispatched to the appropriate public recording
office
for recordation and that such original recorded intervening assignment
of
mortgage or a copy of such intervening assignment of mortgage certified
by
the appropriate public recording office to be a true and complete
copy of
the original recorded intervening assignment of mortgage will be
promptly
delivered to the Purchaser upon receipt thereof by the Company; or
(ii) in
the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case
where
an intervening assignment is lost after recordation in a public recording
office, a copy of such intervening assignment certified by such public
recording office to be a true and complete copy of the original recorded
intervening assignment.
|
|
(F)
|
With
respect to each Mortgage Loan other than a Cooperative Loan, the
original
or electronic copy (in form generally acceptable on the secondary
market)
of the mortgagee policy of title insurance, except for those Mortgage
Loans originated within 60 days before the related Closing Date,
for which
Mortgage Loans the Company shall have delivered and released to the
Purchaser the related binders. In addition, the Company shall deliver
to
the Purchaser the original policy of title insurance within 90 days
after
the related Closing Date. The policy must be properly endorsed, any
necessary notices of transfer must be forwarded and any other action
required to be taken must be taken in order to fully protect, under
the
terms of the policy and applicable law, Purchaser’s interest as first
mortgagee.
|
C-4-2
|
(G)
|
With
respect to each Cooperative Loan: (a) the Cooperative Shares,
(b) a stock power executed in blank by the Person in whose name the
Cooperative Shares are issued, (c) the proprietary lease or occupancy
agreement, accompanied by an assignment in blank of such proprietary
lease, (d) a recognition agreement executed by the Cooperative
Corporation, which requires the Cooperative Corporation to recognize
the
rights of the lender and its successors in interest and assigns,
under the
Cooperative Loan, accompanied by an assignment of such recognition
agreement in blank, (e) UCC-1 financing statements with recording
information thereon from the appropriate state and county recording
offices if necessary to perfect the security interest of the Cooperative
Loan under the Uniform Commercial Code in the state in which the
Cooperative Project is located, accompanied by UCC-3 financing statements
executed in blank for recordation of the change in the secured party
thereunder and (f) any guarantees, if
applicable.
|
(a) such
other documents as the Purchaser may require.
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
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:
INDYMAC
BANK, F.S.B.
Company
By:______________________________________
Name:____________________________________
Title:_____________________________________
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_________________,
200_
| To: | ||
|
(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
By:______________________________________
Name:____________________________________
Title:_____________________________________
Date:_____________________________________
D-2-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”)
or the Savings Association Insurance Fund (“SAIF”).
Depository
By:______________________________________
Name:____________________________________
Title:_____________________________________
Date:_____________________________________
D-2-2
EXHIBIT
E-1
ESCROW
ACCOUNT CERTIFICATION
__________________,
200_
IndyMac
Bank, F.S.B. hereby certifies that it has established the account described
below as an Escrow Account pursuant to Section 4.06 of the Seller’s Warranties
and Servicing Agreement, dated as of 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:
INDYMAC
BANK, F.S.B.
Company
By:______________________________________
Name:____________________________________
Title:_____________________________________
E-1-1
EXHIBIT
E-2
ESCROW
ACCOUNT LETTER AGREEMENT
___________________,
200_
| To: | ||
|
(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
By:______________________________________
Name:____________________________________
Title:_____________________________________
Date:_____________________________________
E-2-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account will be
insured by the Federal Deposit Insurance Corporation through the Bank Insurance
Fund (“BIF”)
or the Savings Association Insurance Fund (“SAIF”).
Depository
By:______________________________________
Name:____________________________________
Title:_____________________________________
Date:_____________________________________
E-2-2
EXHIBIT
F
MONTHLY
REMITTANCE ADVICE
[Intentionally
Omitted]
F-1
EXHIBIT
G
ASSIGNMENT
AND ASSUMPTION
_________________,
200_
ASSIGNMENT
AND ASSUMPTION, dated __________, between __________________________________,
a
___________________ corporation having an office at __________________
(“Assignor”)
and _________________________________, a __________________ corporation having
an office at __________________ (“Assignee”):
For
and in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title and interest of Assignor, as purchaser, in, to and under that certain
Seller’s Warranties and Servicing Agreement, Conventional Residential Fixed and
Adjustable Rate Mortgage Loans, Group No. 2003-1 (the “Seller’s
Warranties and Servicing Agreement”),
dated as of July 1, 2003, by and between ▇▇▇▇▇▇ 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:
|
Attention:
|
The
Assignee’s wire transfer instructions for purposes of all remittances and
payments related to the Mortgage Loans and the Seller’s Warranties and Servicing
Agreement are:
G-3
IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption to
be
executed by their duly authorized officers as of the date first above
written.
|
_______________________________________________
Assignor
|
_______________________________________________
Assignee
|
|
By:________________________________
Its:________________________________
|
By:________________________________
Its:________________________________
|
G-4
EXHIBIT
H
UNDERWRITING
GUIDELINES
[Intentionally
Omitted]
H-1
EXHIBIT
I
ACKNOWLEDGMENT
AGREEMENT
On
this ____ day of ____________, 200_, ▇▇▇▇▇▇ 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.
I-1
This
Acknowledgment Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the Purchaser and the Company have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
PURCHASER:
|
|
|
▇▇▇▇▇▇
BROTHERS BANK, FSB
|
|
|
By:_______________________________
|
|
|
Name:_____________________________
|
|
|
Title:______________________________
|
|
|
SELLER:
|
|
|
INDYMAC
BANK, FSB
|
|
|
By:________________________________
|
|
|
Name:______________________________
|
|
|
Title:_______________________________
|
I-2
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 ▇▇▇▇▇▇ 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”).
W
I T N E
S S E T H
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:
|
1.
|
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.
|
2.
|
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.
|
3.
|
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:
|
(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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
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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4.
|
Adding
the following language as new Sections 3.02(ddd) -
(ooo):
|
(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 ▇▇▇▇▇▇ Mae’s anti-predatory lending requirements as set forth
in the ▇▇▇▇▇▇ 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. ▇▇▇. §§ 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. ▇▇▇. 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
▇▇▇▇▇▇
▇▇▇, 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 ▇▇▇▇▇▇ Mae that the terms of the arbitration are null and
void.
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5.
|
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;
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|
(ii)
|
such
other documents as the Purchaser or counsel to the Purchaser may
reasonably request.
|
|
(b)
|
On
the Amendment Effective Date, the Seller shall have received the
following, each of which shall be satisfactory to the
Seller:
|
|
(i)
|
this
Amendment, executed and delivered by a duly authorized officer
of the
Seller and the Purchaser;
|
(ii) such
other documents as the Seller or counsel to the Seller may reasonably
request.
|
(c)
|
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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|
6.
|
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.
|
|
7.
|
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.
|
|
8.
|
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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|
9.
|
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.
|
[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.
▇▇▇▇▇▇
BROTHERS BANK, FSB
Purchaser
By:____________________________
Name:__________________________
Title:___________________________
INDYMAC
BANK, F.S.B.,
Seller
By:____________________________
Name:__________________________
Title:___________________________
AMENDMENT
NO. 2
TO
THE
SELLERS WARRANTIES AND SERVICING AGREEMENT
This
is
Amendment No. 2 (the “Amendment
No. 2”),
dated
as of June 28, 2006 (the “Amendment
Date”),
by
and between ▇▇▇▇▇▇ Brothers Bank, FSB (the “Purchaser”), and
IndyMac Bank, F.S.B. (the “Company”), to that certain Sellers Warranties and
Servicing Agreement dated as of July 1, 2003 by and between the Company 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”).
W
I T N E
S S E T H
WHEREAS,
the Company 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 Company 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:
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1.
|
Article
1 of the Existing Purchase Agreement is hereby amended by adding
the
following additional definitions:
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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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2.
|
Article
1 of the Existing Purchase Agreement is hereby amended by deleting
the
existing definition of “Principal Prepayment Period” and replacing it with
the following language:
|
Principal
Prepayment Period:
The
period beginning on the second day of the month preceding the month in which
the
related Remittance Date occurs (or in the case of the first Remittance Date,
the
Cut-off Date) and ending on the first day of the month in which the related
Remittance Date occurs.
|
3.
|
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:
|
(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 ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by a title insurer acceptable
to
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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 subject to any applicable caps. 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 the terms stated in the Mortgage
Note from commencement of amortization. The interest only Mortgage Loans
are
payable in equal monthly installments of interest for an initial period set
forth in the Mortgage Note 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 the terms stated in the Mortgage
Note.
(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 ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or generally
acceptable to investors in the secondary market;
(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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4.
|
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, as applicable, 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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5.
|
Section
5.02 of the Existing Purchase Agreement is hereby amended by adding
the
following language at the end
thereof:
|
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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6.
|
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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7.
|
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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8.
|
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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇.
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
to the
extent applicable to the Seller’s servicing obligations under this Agreement (or
any applicable Reconstitution Agreement) 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.
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9.
|
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:
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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 for non-MERS Mortgage Loans 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 Company’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.
|
10.
|
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
|
11.
|
The
Existing Purchase Agreement is hereby amended by adding Exhibit
A
attached hereto as Exhibit
J
to
the Existing Purchase Agreement:
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|
12.
|
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
Company 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 Company 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.
|
|
13.
|
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.
|
|
14.
|
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.
|
|
15.
|
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.
|
|
16.
|
This
Amendment No. 2 shall inure to the benefit of and be binding upon
the
Purchaser and the Company 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.
▇▇▇▇▇▇
BROTHERS BANK, FSB
Purchaser
By:____________________________
Name:__________________________
Title:___________________________
INDYMAC
BANK, F.S.B.,
Company
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.
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].
L-1
Date: _________________________
_______________________________
[Signature]
[Title]
L-2