SERVICING AGREEMENT between MORGAN STANLEY MORTGAGE CAPITAL INC. Purchaser and INDYMAC BANK, F.S.B. Servicer Dated as of September 1, 2006 CONVENTIONAL, ADJUSTABLE AND FIXED RATE RESIDENTIAL MORTGAGE LOANS
Exhibit
99.10c
SERVICING
AGREEMENT
between
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
Purchaser
and
INDYMAC
BANK, F.S.B.
Servicer
Dated
as
of September 1, 2006
CONVENTIONAL,
ADJUSTABLE AND FIXED RATE RESIDENTIAL MORTGAGE LOANS
TABLE
OF
CONTENTS
Page
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ARTICLE
I
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DEFINITIONS
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Section
1.01
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Definitions
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1
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ARTICLE
II
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SERVICING
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Section
2.01
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Servicer
to Service.
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7
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Section
2.02
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Liquidation
of Mortgage Loans
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9
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Section
2.03
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Collection
of Mortgage Loan Payments.
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10
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Section
2.04
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Establishment
of and Deposits to Custodial Account.
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10
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Section
2.05
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Permitted
Withdrawals From Custodial Account.
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11
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Section
2.06
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Establishment
of and Deposits to Escrow Account
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12
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Section
2.07
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Permitted
Withdrawals From Escrow Account.
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12
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Section
2.08
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Payment
of Taxes, Insurance and Other Charges; Tax Service
Contracts.
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13
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Section
2.09
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Protection
of Accounts.
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14
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Section
2.10
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Maintenance
of Hazard Insurance.
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14
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Section
2.11
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Maintenance
of Mortgage Impairment Insurance.
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15
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Section
2.12
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Maintenance
of Fidelity Bond and Errors and Omissions Insurance.
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16
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Section
2.13
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Inspections.
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16
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Section
2.14
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Restoration
of Mortgaged Property.
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17
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Section
2.15
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Maintenance
of PMI Policy; Claims.
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17
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Section
2.16
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Title,
Management and Disposition of REO Property.
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18
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Section
2.17
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Permitted
Withdrawals with respect to REO Property.
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19
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Section
2.18
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Real
Estate Owned Reports.
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19
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Section
2.19
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Liquidation
Reports.
|
19
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Section
2.20
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Reports
of Foreclosures and Abandonments of Mortgaged Property.
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20
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ARTICLE
III
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PAYMENTS
TO PURCHASER
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Section
3.01
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Remittances.
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20
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Section
3.02
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Statements
to Purchaser.
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20
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Section
3.03
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Advances
by Servicer.
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21
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ARTICLE
IV
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GENERAL
SERVICING PROCEDURES
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Section
4.01
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Transfers
of Mortgaged Property.
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21
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Section
4.02
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Satisfaction
of Mortgages and Release of Mortgage Files.
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22
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Section
4.03
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Servicing
Compensation.
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22
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Section
4.04
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Annual
Statement as to Compliance.
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23
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Section
4.05
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Annual
Independent Public Accountants’ Servicing Report.
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23
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Section
4.06
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Right
to Examine Servicer Records.
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23
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Section
4.07
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Compliance
with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999.
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24
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ARTICLE
V
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SERVICER
TO COOPERATE
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Section
5.01
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Provision
of Information.
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24
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Section
5.02
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Financial
Statements; Servicing Facilities.
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24
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ARTICLE
VI
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TERMINATION
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Section
6.01
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Termination.
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25
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Section
6.02
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Termination
Upon Transfer of Servicing.
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25
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ARTICLE
VII
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BOOKS
AND RECORDS
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Section
7.01
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Possession
of Servicing Files.
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26
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ARTICLE
VIII
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INDEMNIFICATION
AND ASSIGNMENT
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Section
8.01
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Indemnification.
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27
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Section
8.02
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Limitation
on Liability of Servicer and Others.
|
27
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Section
8.03
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Limitation
on Resignation and Assignment by Servicer.
|
28
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Section
8.04
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Assignment
by Purchaser.
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28
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Section
8.05
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Merger
or Consolidation of the Servicer.
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28
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iii
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ARTICLE
IX
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
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Section
9.01
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Authority
and Capacity.
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29
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ARTICLE
X
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REPRESENTATIONS
AND WARRANTIES OF SERVICER
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Section
10.01
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Due
Organization and Authority.
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29
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Section
10.02
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Ordinary
Course of Business.
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30
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Section
10.03
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No
Conflicts.
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30
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Section
10.04
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Ability
to Service.
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30
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Section
10.05
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Ability
to Perform.
|
30
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Section
10.06
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No
Litigation Pending.
|
30
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Section
10.07
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No
Consent Required.
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31
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Section
10.08
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No
Untrue Information.
|
31
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Section
10.09
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Reasonable
Servicing Fee.
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31
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ARTICLE
XI
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DEFAULT
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Section
11.01
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Events
of Default.
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31
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Section
11.02
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Waiver
of Defaults.
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33
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ARTICLE
XII
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MISCELLANEOUS
PROVISIONS
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Section
12.01
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Notices.
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33
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Section
12.02
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Waivers.
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34
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Section
12.03
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Entire
Agreement; Amendment.
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34
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Section
12.04
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Execution;
Binding Effect.
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34
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Section
12.05
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Headings.
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34
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Section
12.06
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Applicable
Law.
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34
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Section
12.07
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Relationship
of Parties.
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35
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Section
12.08
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Severability
of Provisions.
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35
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Section
12.09
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[Reserved].
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35
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Section
12.10
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Exhibits.
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35
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Section
12.11
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Counterparts.
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35
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Section
12.12
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No
Solicitation.
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35
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Section
12.13
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Cooperation
of Servicer with a Reconstitution.
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36
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Section
12.14
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Waiver
of Trial by Jury.
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37
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Section
12.15
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Submission
To Jurisdiction; Waivers.
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38
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iv
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ARTICLE
XIII
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COMPLIANCE
WITH REGULATION AB PROVISIONS
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Section
13.01
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Intent
of the Parties; Reasonableness.
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38
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Section
13.02
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Additional
Representations and Warranties of the Servicer.
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39
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Section
13.03
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Information
to Be Provided by the Servicer.
|
40
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Section
13.04
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Servicer
Compliance Statement.
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43
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Section
13.05
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Report
on Assessment of Compliance and Attestation.
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43
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Section
13.06
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Use
of Subservicers and Subcontractors.
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44
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Section
13.07
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Indemnification;
Remedies.
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45
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EXHIBITS
EXHIBIT
1 FORM
OF REMITTANCE REPORT
EXHIBIT
2 FORM
OF CUSTODIAL ACCOUNT CERTIFICATION
EXHIBIT
3 FORM
OF CUSTODIAL ACCOUNT LETTER AGREEMENT
EXHIBIT
4 FORM
OF ESCROW ACCOUNT CERTIFICATION
EXHIBIT
5 FORM
OF ESCROW ACCOUNT LETTER AGREEMENT
EXHIBIT
6 [RESERVED]
EXHIBIT
7 ANNUAL
CERTIFICATIONS
EXHIBIT 8 SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
v
This
Servicing Agreement (“Servicing Agreement” or “Agreement”) is
entered into as of September 1, 2006, by and between INDYMAC BANK, F.S.B.,
a
federal savings bank (the “Servicer”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC., a New York corporation (the “Purchaser”).
WHEREAS,
the Purchaser and IndyMac Bank, F.S.B., as seller (the “Seller”) entered
into a Mortgage Loan Purchase and Warranties Agreement, dated as of September
1,
2006 (the “Purchase Agreement”) pursuant to which the Purchaser agreed to
purchase from the Seller certain conventional, fixed and adjustable rate, first
lien, residential mortgage loans (the “Mortgage Loans”) to be delivered
as whole loans on a servicing retained basis; and
WHEREAS,
the Purchaser desires to have the Servicer service the Mortgage Loans, the
Servicer desires to service and administer the Mortgage Loans on behalf of
the
Purchaser, and the parties desire to provide the terms and conditions of such
servicing by the Servicer.
NOW,
THEREFORE, in consideration of the mutual promises and agreements set forth
herein and for other good and valuable consideration, the receipt
and the sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Definitions. All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Purchase Agreement. The following terms are defined as
follows:
Accepted
Servicing Practices: With respect to any Mortgage Loan, those
mortgage servicing practices of prudent mortgage lending institutions which
service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located and incorporating
the Delinquency Collection Policies and Procedures.
Ancillary
Income: All late charges, assumption fees, escrow account
benefits, reinstatement fees, and similar types of fees arising from or in
connection with any Mortgage Loan to the extent not otherwise payable to the
Mortgagor under applicable law or pursuant to the terms of the related Mortgage
Note.
Closing
Date: Shall have the meaning set forth in the applicable Purchase Price and
Terms Agreement.
Condemnation
Proceeds: All awards or settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise of
the
power of eminent
domain
or
condemnation, to the extent not required to be released to a Mortgagor in
accordance with the terms of the related Mortgage Loan Documents.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to a
dwelling unit occupied by the Mortgagor and relating to the stock allocated
to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated to
a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Custodial
Account: The separate account or accounts created and maintained
pursuant to Section 2.04.
Cut-off
Date: Shall have the meaning set forth in the applicable Purchase Price and
Terms Agreement.
Delinquency
Collection Policies and Procedures: The delinquency collection
policies and procedures of the Servicer.
Depositor: The
depositor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Determination
Date: The 15th day (or if such 15th day is not a Business Day,
the Business Day immediately preceding such 15th day) of the month of the
related Remittance Date.
Errors
and Omissions Insurance Policy: An errors and omissions insurance
policy to be maintained by the Servicer pursuant to Section 2.12.
Escrow
Account: The separate account or accounts created and maintained
pursuant to Section 2.06.
Escrow
Payment: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event
of Default: Any one of the conditions or circumstances enumerated
in Section 11.01.
Exchange
Act: The Securities Exchange Act of 1934, as
amended.
Fidelity
Bond: A fidelity bond to be maintained by the Servicer pursuant
to Section 2.12.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged
Property.
2
Liquidation
Proceeds: Cash received in connection with the liquidation of a
defaulted Mortgage Loan, whether through the sale or assignment of such Mortgage
Loan, trustee’s sale, foreclosure sale or otherwise, or the sale of the related
Mortgaged Property if the Mortgaged Property is acquired in satisfaction of
the
Mortgage Loan.
Mortgage: With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of
trust
or other instrument securing a Mortgage Note, which creates a first lien on
an
unsubordinated estate in fee simple in real property securing the Mortgage
Note;
except that with respect to real property located in jurisdictions in which
the
use of leasehold estates for residential properties is a widely-accepted
practice, the mortgage, deed of trust or other instrument securing the Mortgage
Note may secure and create a first lien upon a leasehold estate of the
Mortgagor. With respect to a Co-op Loan, the Security Agreement.
Mortgage
Impairment Insurance Policy: A mortgage impairment or blanket
hazard insurance policy as described in Section 2.11.
Mortgage
Loan Remittance Rate: With respect to each Mortgage Loan, the
annual rate of interest remitted to the Purchaser, which shall be equal to
the
Mortgage Interest Rate minus the Servicing Fee Rate.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgagor: The
obligor on a Mortgage Note.
Officer’s
Certificate: A certificate signed by the Chairman of the Board or
the Vice Chairman of the Board or a President or Vice President and by the
Treasurer or the Secretary or one of the Assistant Treasurers or Assistant
Secretaries of the Servicer, and delivered to the Purchaser.
PMI
Policy or Primary Insurance Policy: A policy of primary mortgage guaranty
insurance issued by a Qualified Insurer, as required by this Agreement with
respect to certain Mortgage Loans.
Prime
Rate: The prime rate announced to be in effect from time to time,
as published as the average rate in The Wall Street Journal (Northeast
edition).
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan which is received in advance of its scheduled Due Date, including
any prepayment penalty or premium thereon and which is not accompanied by an
amount of interest representing scheduled interest due on any date or dates
in
any month or months subsequent to the month of prepayment.
Principal
Prepayment Period: The month preceding the month in which the
related Remittance Date occurs.
Purchase
Agreement: The Mortgage Loan Purchase and Warranties Agreement,
dated as of September 1, 2006, between the Purchaser and the
Seller.
3
Purchase
Price and Terms Agreement: With respect to each pool of Mortgage
Loans purchased pursuant to the Purchase Agreement the related agreement setting
forth the general terms and conditions of the purchase transaction and
identifying the Mortgage Loans to be purchased thereunder, by and between the
Seller and the Purchaser.
Purchaser: As
defined in the Recitals.
Qualified
Depository: A depository the accounts of which are insured by the
FDIC through the BIF or the SAIF.
Qualified
Insurer: An insurance company duly qualified as such under the
laws of the states in which the Mortgaged Properties are located, duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided, approved as an insurer by ▇▇▇▇▇▇
Mae and ▇▇▇▇▇▇▇ Mac (or such other rating as may be required by a Rating Agency
in connection with a Securitization Transaction in order to achieve the desired
ratings for the securities to be issued in connection with such Securitization
Transaction).
Reconstitution: Any
Securitization Transaction or Whole Loan Transfer.
Regulation
AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB),
17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and
subject to such clarification and interpretation as have been provided by the
Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Remittance
Date: The 18th day (or if such 18th day
is not a
Business Day, the first Business Day immediately preceding such 18th day) of
any month,
beginning with the first Remittance Date after the Closing Date.
Remittance
Report: As defined in Section 3.02.
REO
Property: A Mortgaged Property acquired by the Servicer on behalf
of the Purchaser through foreclosure or by deed in lieu of foreclosure, as
described in Section 2.16.
Reporting
Date: As defined in Section 3.02.
Repurchase
Price: As defined in the Purchase Agreement.
SAIF: The
Savings Association Insurance Fund, or any successor thereto.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction: Any transaction involving either (1) a sale or other
transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more
4
portfolios
of residential mortgage loans consisting,
in whole or in part, of some or all of the Mortgage Loans.
Security
Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: As
defined in the Recitals.
Servicer: As
defined in the Recitals.
Servicer
Employees: As defined in Section 2.12.
Servicer
Information: As defined in Section 13.07(a).
Servicing
Advances: All customary, reasonable and necessary “out of pocket”
costs and expenses (including reasonable attorneys’ fees and disbursements)
incurred in the performance by the Servicer of its servicing obligations,
including, but not limited to, the cost of (a) the preservation, restoration
and
protection of the Mortgaged Property, (b) any enforcement, administrative or
judicial proceedings, or any legal work or advice specifically related to
servicing the Mortgage Loans, including but not limited to, foreclosures,
bankruptcies, condemnations, drug seizures, foreclosures by subordinate or
superior lienholders, and other legal actions incidental to the servicing of
the
Mortgage Loans (provided that such expenses are reasonable and that the Servicer
specifies the Mortgage Loan(s) to which such expenses relate), (c) the
management and liquidation of the Mortgaged Property if the Mortgaged Property
is acquired in satisfaction of the Mortgage, (d) taxes, assessments, water
rates, sewer rates and other charges which are or may become a lien upon the
Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage, (e) any losses sustained by the Servicer with respect to the
liquidation of the Mortgaged Property and (f) compliance with the obligations
under Section 2.08 (except with respect to any expenses incurred in connection
with procuring or transferring Tax Service Contracts as provided
therein).
Servicing
Agreement: This agreement between the Purchaser and the Servicer
for the servicing and administration of the Mortgage Loans.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d) of
Regulation AB, as such may be amended from time to time.
Servicing
Fee: With respect to each Mortgage Loan subject to this
Agreement, an amount equal to one-twelfth of the product of (a) the Servicing
Fee Rate and (b) the outstanding principal balance of such Mortgage Loan payable
monthly. Such fee shall be payable monthly and shall be pro-rated for
any portion of a month during which the Mortgage Loan is serviced by the
Servicer under this Agreement. The obligation of the Purchaser to pay
the Servicing Fee is limited to, and the Servicing Fee is payable solely from,
the interest portion (including recoveries with respect to interest from
Liquidation Proceeds, to the extent permitted by Section 4.03) of such Monthly
Payment collected by the Servicer, or as otherwise provided under Section
4.03.
5
Servicing
Fee Rate: 37.5 basis points (0.375%) per annum.
Servicing
File: With respect to each Mortgage Loan, the file retained by
the Servicer, during the period in which the Servicer is acting as servicer
pursuant to the Servicing Agreement, consisting of originals of all documents
in
the Mortgage File which are not delivered to the Custodian and copies of the
Mortgage Loan Documents listed on Exhibit A to the Purchase
Agreement.
Servicing
Officer: Any officer of the Servicer involved in or responsible
for, the administration and servicing of the Mortgage Loans whose name appears
on a list of servicing officers furnished by the Servicer to the Purchaser
upon
request, as such list may from time to time be amended.
Servicing
Rights: Any and all of the following: (a) any and all rights
to service the Mortgage Loans; (b) any payments to or monies received by
the Servicer for servicing the Mortgage Loans; (c) any late fees, penalties
or similar payments (excluding any prepayment penalties) with respect to the
Mortgage Loans; (d) all agreements or documents creating, defining or
evidencing any such servicing rights to the extent they relate to such servicing
rights and all rights of the Servicer thereunder; (e) Escrow Payments or
other similar payments with respect to the Mortgage Loans and any amounts
actually collected by the Servicer with respect thereto; (f) all accounts
and other rights to payment related to any of the property described in this
paragraph; and (g) any and all documents, files, records, servicing files,
servicing documents, servicing records, data tapes, computer records, or other
information pertaining to the Mortgage Loans or pertaining to the past, present
or prospective servicing of the Mortgage Loans.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Company or a
Subservicer.
Subservicer: Any
Person that services Mortgage Loans on behalf of the Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
required to be performed by the Servicer under this Agreement or any
Reconstitution Agreement that are identified in Item 1122(d) of Regulation
AB.
Tax
Service Contract: A paid-in-full, life-of-loan tax service
contract as described in Section 2.08 hereof.
Whole
Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
6
ARTICLE
II
SERVICING
Section
2.01 Servicer to Service.
(a) From
and after the Closing Date, the Servicer, as an independent contractor, shall
service and administer each Mortgage Loan and shall have full power and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Accepted Servicing
Practices. Except as set forth in this Agreement, the Originator
shall service the Mortgage Loans on an “scheduled/scheduled” basis and in strict
compliance with Accepted Servicing Practices.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if in
the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the Purchaser, provided,
however, that unless the Servicer has obtained the prior written consent of
the
Purchaser, the Servicer shall not permit any modification with respect to any
Mortgage Loan that would change the Mortgage Interest Rate, defer or forgive
the
payment of principal, interest or prepayment penalties (unless the Servicer
returns the prepayment penalties as indicated in the related Purchase Price
and
Terms Agreement or unless the Servicer waives such prepayment penalty because
it
is mandated by applicable law or the Servicer does so in its own discretion
and
remits from the Servicer’s own funds, without the right to reimbursement
therefore, the amount of the waived prepayment penalty to the Purchaser or
its
successors and assigns), reduce or increase the outstanding principal balance
(except for actual payments of principal) or change the final maturity date
on
such Mortgage Loan. Without limiting the generality of the foregoing,
the Servicer shall continue, and is hereby authorized and empowered, to execute
and deliver on behalf of itself and the Purchaser, all instruments of
satisfaction or cancellation, or of partial or full release, discharge and
all
other comparable instruments, with respect to the Mortgage Loans and with
respect to the Mortgaged Properties. If reasonably required by the
Servicer, the Purchaser shall furnish the Servicer with any powers of attorney
and other documents necessary or appropriate to enable the Servicer to carry
out
its servicing and administrative duties under this Agreement.
In
servicing and administering the Mortgage Loans, the Servicer shall employ
procedures (including collection procedures) and exercise the same care that
it
customarily employs and exercises in servicing and administering mortgage loans
for its own account, giving due consideration to Accepted Servicing Practices
where such practices do not conflict with the requirements
of this Agreement, and the Purchaser’s reliance on the Servicer. In
addition, the Servicer shall retain adequate personnel to effect such servicing
and administration of the Mortgage Loans.
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with
7
the
terms
hereof. For the purposes of this Agreement, Servicer shall be under
no obligation to deal with any Person with respect to this Agreement or the
Mortgage Loans unless the Servicer has been notified of such transfers as
provided in this Section 2.01. The Purchaser may sell and transfer,
in whole or in part, the Mortgage Loans, provided that no such sale and transfer
shall be binding upon Servicer unless such transferee shall agree in writing
to
be bound by the terms of this Agreement and the Purchase Agreement, and an
executed copy of the same shall have been delivered to the
Servicer. Upon receipt of notice of such transfer, the Servicer shall
▇▇▇▇ its books and records to reflect the ownership of the Mortgage Loans by
such assignee, and the previous Purchaser shall be released from its obligations
hereunder. This Agreement shall be binding upon and inure to the
benefit of the Purchaser and the Servicer and their permitted successors,
assignees and designees.
The
Servicing File retained by the Servicer pursuant to this Agreement shall be
appropriately marked and identified in the Servicer’s computer system to clearly
reflect the sale of the related Mortgage Loan to the Purchaser. The
Servicer shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement, except when such release
is required in connection with a repurchase of any such Mortgage Loan pursuant
to Section 9 of the Purchase Agreement.
The
Servicer shall forward to the Custodian or, at the request of the Purchaser,
to
the Purchaser or its designee, original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into
in
accordance with this Agreement within two weeks of their execution, provided,
however, that the Servicer shall provide the Custodian with a certified true
copy of any such document submitted for recordation within two weeks of its
execution, and shall provide the original of any document submitted for
recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within ninety
days of its submission for recordation.
In
the
event that such original or copy of any document submitted for recordation
to
the appropriate public recording office is not so delivered to the Custodian
within 120 days of its submission for recordation, and in the event that the
Seller does not cure such failure within 30 days of discovery or receipt of
written notification of such failure from the Purchaser, the related Mortgage
Loan shall, upon the request of the Purchaser, be repurchased by the Seller
at
the price and in the manner specified in Section 9 of the Purchase
Agreement. The foregoing repurchase obligation shall not apply in the
event that the Seller cannot deliver such original or copy of any document
submitted for recordation to the appropriate public recording office within
the
specified period due to a delay caused by the recording office in the applicable
jurisdiction; provided that the Seller shall instead deliver an Officer’s
Certificate of a servicing officer of the Seller, confirming that all such
documents have been accepted for recording; provided that, upon request
of the Purchaser and delivery by the Purchaser to the Seller of a schedule
of
the related Mortgage Loans, the Seller shall reissue and deliver to the
Purchaser or its designee said officer’s certificate relating to the related
Mortgage Loans.
The
Servicer must have an internal quality control program that verifies, on a
regular basis, the existence and accuracy of the legal documents, credit
documents, property appraisals, and underwriting decisions. The
program shall include evaluating and monitoring the overall quality of its
loan
production and the servicing activities of the Servicer. The program
is
8
to
ensure
that the Mortgage Loans are originated and serviced in accordance with Accepted
Servicing Standards and the Underwriting Guidelines; guard against dishonest,
fraudulent, or negligent acts; and guard against errors and omissions by
officers, employees, or other authorized persons.
(b) In
addition to the Servicer’s servicing obligations as set forth herein, the
Servicer shall not consent to the placement of a lien on the Mortgaged Property
senior to that of the related Mortgage.
Section
2.02 Liquidation of Mortgage
Loans.
In
the
event that any payment due under any Mortgage Loan and not postponed pursuant
to
Section 2.01 is not paid when the same becomes due and payable, or in the event
the Mortgagor fails to perform any other covenant or obligation under the
Mortgage Loan and such failure continues beyond any applicable grace period,
the
Servicer shall take such action as (1) the Servicer would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (2) shall be consistent with Accepted Servicing Practices,
(3)
the Servicer shall determine prudently to be in the best interest of Purchaser,
and (4) is consistent with any related PMI Policy. Therefore, in
connection therewith, the Servicer shall strictly comply with Accepted Servicing
Practices. In the event that any payment due under any Mortgage Loan
is not postponed pursuant to Section 2.01 and remains delinquent for a period
of
60 days or any other default continues for a period of 60 days beyond the
expiration of any grace or cure period (or such other period as is required
by
law in the jurisdiction where the related Mortgaged Property is located), the
Servicer shall commence foreclosure proceedings in accordance with the
Delinquency Collection Policies and Procedures. In such connection,
the Servicer shall from its own funds make all necessary and proper Servicing
Advances, provided, however, that the Servicer shall not be required to expend
its own funds in connection with any foreclosure or towards the restoration
or
preservation of any Mortgaged Property, unless it shall determine (a) that
such
preservation, restoration and/or foreclosure will increase the proceeds of
liquidation of the Mortgage Loan to Purchaser after reimbursement to itself
for
such expenses and (b) that such expenses will be recoverable by it either
through Liquidation Proceeds (respecting which it shall have priority for
purposes of withdrawals from the Custodial Account pursuant to Section 2.05)
or
through Insurance Proceeds (respecting which it shall have similar
priority).
Notwithstanding
anything to the contrary contained herein, in connection with a foreclosure,
in
the event the Servicer has reasonable cause to believe that a Mortgaged Property
is contaminated by hazardous or toxic substances or wastes, or if the Purchaser
otherwise requests
an environmental inspection or review of such Mortgaged Property to be conducted
by a qualified inspector the Servicer shall cause the Mortgaged Property to
be
so inspected. Upon completion of the inspection, the Servicer shall
promptly provide the Purchaser with a written report of the environmental
inspection.
After
reviewing the environmental inspection report, the Purchaser shall determine
how
the Servicer shall proceed with respect to the Mortgaged Property. In
the event (a) the environmental inspection report indicates that the Mortgaged
Property is contaminated by hazardous or toxic substances or wastes and (b)
the
Purchaser directs the Servicer to proceed
9
with
foreclosure or acceptance of a deed in lieu of foreclosure, the Servicer shall
be reimbursed for all reasonable costs associated with such foreclosure or
acceptance of a deed in lieu of foreclosure and any related environmental clean
up costs, as applicable, from the related Liquidation Proceeds, or if the
Liquidation Proceeds are insufficient to fully reimburse the Servicer, the
Servicer shall be entitled to be reimbursed from amounts in the Custodial
Account pursuant to Section 2.05 hereof. In the event the Purchaser
directs the Servicer not to proceed with foreclosure or acceptance of a deed
in
lieu of foreclosure, the Servicer shall be reimbursed for all Servicing Advances
made with respect to the related Mortgaged Property from the Custodial Account
pursuant to Section 2.05 hereof.
Section
2.03 Collection of Mortgage Loan
Payments.
Following
the Closing Date the Servicer shall proceed diligently to collect all payments
due under each of the related Mortgage Loans when the same shall become due
and
payable and shall take special care in ascertaining and estimating Escrow
Payments and all other charges that will become due and payable with respect
to
the Mortgage Loans and each related Mortgaged Property, to the end that the
installments payable by the Mortgagors will be sufficient to pay such charges
as
and when they become due and payable.
Section
2.04 Establishment of and Deposits to
Custodial Account.
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish one or more Custodial Accounts, to be maintained
under the sole dominion and control of the Purchaser and titled “IndyMac Bank,
F.S.B. in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., owner of Conventional
Fixed Rate Residential Mortgage Loans, and various Mortgagors”. The
Custodial Account shall be established with a Qualified Depository acceptable
to
the Purchaser. Any funds deposited in the Custodial Account shall at
all times be fully insured to the full extent permitted under applicable
law. The creation of any Custodial Account shall be evidenced by a
certification in the form of Exhibit 2 hereto, in the case of an account
established with the Servicer, or by a letter agreement in the form of Exhibit
3
hereto, in the case of an account held by a depository other than the
Servicer. A copy of such certification or letter agreement shall be
furnished to the Purchaser and, upon request, to any subsequent
Purchaser.
The
Servicer shall deposit in the Custodial Account on a daily basis on the Business
Day following receipt thereof, the following collections received by the
Servicer and payments made by the Servicer after the Cut-off Date, other than
payments of principal and interest
due on or before the Cut-off Date, or received by the Servicer prior to the
Cut-off Date but allocable to a period subsequent thereto:
(i)
all payments on account of principal on the Mortgage Loans, including all
Principal Prepayments;
(ii) all
payments on account of interest on the Mortgage;
(iii) all
Liquidation Proceeds and any amount received with respect to REO
Property;
10
(iv) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 2.10 (other than proceeds to be held in the Escrow Account and applied
to the restoration or repair of the Mortgaged Property or released to the
Mortgagor in accordance with Section 2.14), Section 2.11 and Section
2.15;
(v) all
Condemnation Proceeds which are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with Section
2.14;
(vi) any
amount required to be deposited in the Custodial Account pursuant to Section
2.01, 2.09, 2.16, 3.01, 4.01 or 4.02;
(vii) any
amounts payable in connection with the repurchase of any Mortgage Loan pursuant
to Section 9 of the Purchase Agreement;
(viii) any
prepayment penalties received with respect to any Mortgage Loan or payable
by
the Servicer pursuant to Section 2.01 (unless the related Purchase Price and
Terms Agreement indicates otherwise);
(ix) any
amounts required to be deposited by the Servicer pursuant to Section 2.11 in
connection with the deductible clause in any blanket hazard insurance policy;
and
(x) with
respect to each Principal Prepayment an amount (to be paid by the Servicer
out
of its funds) which, when added to all amounts allocable to interest received
in
connection with the Principal Prepayment, equals one month’s interest on the
amount of principal so prepaid at the Mortgage Loan Remittance
Rate.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, unless otherwise provided herein, Ancillary Income need not
be
deposited by the Servicer into the Custodial Account. Any interest
paid on funds deposited in the Custodial Account by the depository institution
shall accrue to the benefit of the Servicer and the Servicer shall be entitled
to retain and withdraw such interest from the Custodial Account pursuant to
Section 2.05.
Section
2.05 Permitted Withdrawals From Custodial
Account.
Subject
to Section 3.01, on each Remittance Date, the Servicer shall be entitled to
funds from the Custodial Account for the following purposes:
(i)
to pay to itself the Servicing Fee;
(ii) to
reimburse itself for unreimbursed Servicing Advances (except to the extent
reimbursed pursuant to Section 2.07), any accrued but unpaid Servicing Fees
and
for unreimbursed advances of Servicer funds made pursuant to Sections 2.16
or
3.03, the Servicer’s right to reimburse itself pursuant to this subclause (ii)
with respect to any Mortgage Loan being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, it being understood that, in the case of any such reimbursement,
the Servicer’s right thereto shall be prior to the rights of the Purchaser
except that, where the Seller
11
is
required to repurchase a Mortgage Loan pursuant to Section 9 of the Purchase
Agreement or Section 4.02 of this Agreement, the Servicer’s right to such
reimbursement shall be subsequent to the payment to the Purchaser of the
Repurchase Price pursuant to such sections and all other amounts required to
be
paid to the Purchaser with respect to such Mortgage Loan;
(iii) to
pay itself any interest earned on funds deposited in the Custodial Account
(all
such interest to be withdrawn monthly not later than each Remittance Date);
and
(iv) to
clear and terminate the Custodial Account upon the termination of this
Agreement.
Section
2.06 Establishment of and Deposits to Escrow
Account. The Servicer shall segregate and hold all funds
collected and received pursuant to a Mortgage Loan constituting Escrow Payments
separate and apart from any of its own funds and general assets and shall
establish and maintain one or more Escrow Accounts, in the form of time deposit
or demand accounts, titled, “IndyMac Bank, F.S.B., as servicer, in trust for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., owner of Conventional Fixed Rate
Residential Mortgage Loans, and various Mortgagors”. The Escrow
Account shall be established with a Qualified Depository, in a manner which
shall provide maximum available insurance thereunder. Funds deposited
in the Escrow Accounts may be drawn on by the Servicer in accordance with
Section 2.07. The creation of any Escrow Account shall be evidenced
by a certification in the form of Exhibit 4 hereto, in the case of an account
established with the Servicer, or by a letter agreement in the form of Exhibit
5
hereto, in the case of an account held by a depository other than the
Servicer. A copy of such certification shall be furnished to the
Purchaser and, upon request, to any subsequent Purchaser.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section
2.07. The Servicer shall be entitled to retain any interest paid on
funds deposited in the Escrow Account by the depository institution, other
than
interest on escrowed funds required by law to be paid to the
Mortgagor. To the extent required by law, the Servicer shall pay from
its own funds interest on escrowed funds to the Mortgagor notwithstanding that
the Escrow Account may be non-interest bearing or that interest paid thereon
is
insufficient for such purposes.
Section
2.07 Permitted Withdrawals From Escrow
Account.
Withdrawals
from the Escrow Account or Accounts may be made by the Servicer
only:
12
(i) to
effect timely payments of ground rents, taxes, assessments, water rates,
mortgage insurance premiums, condominium charges, fire and hazard insurance
premiums or other items constituting Escrow Payments for the related
Mortgage;
(ii) to
reimburse itself for any Servicing Advance relating to taxes, assessments,
water
rates, sewer rates and other charges which are or may become a lien upon the
Mortgaged Property, and PMI Policy premiums and fire and hazard insurance
coverage made by the Servicer with respect to a related Mortgage Loan (except
with respect to any expenses incurred in procuring or transferring Tax Service
Contracts pursuant to Section 2.08), but only from amounts received on the
related Mortgage Loan which represent late collections of Escrow Payments
thereunder;
(iii) to
refund to any Mortgagor any funds found to be in excess of the amounts required
under the terms of the related Mortgage Loan or applicable federal or state
law
or judicial or administrative ruling;
(iv) for
transfer to the Custodial Account and application to reduce the principal
balance of the Mortgage Loan in accordance with the terms of the related
Mortgage and Mortgage Note;
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with the procedures outlined in Section 2.14;
(vi) to
pay to the Servicer, or any Mortgagor to the extent required by law, any
interest paid on the funds deposited in the Escrow Account; and
(vii) to
clear and terminate the Escrow Account on the termination of this
Agreement.
Section
2.08 Payment of Taxes, Insurance and Other
Charges; Tax Service Contracts.
With
respect to each Mortgage Loan, the Servicer shall maintain accurate records
reflecting the status of ground rents, taxes, assessments, water rates, sewer
rents, and other charges which are or may become a lien upon the Mortgaged
Property and the status of PMI Policy premiums and fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) and shall effect payment thereof prior
to
the applicable penalty or termination date, employing for such purpose deposits
of the Mortgagor in the Escrow Account which shall have been estimated and
accumulated by the Servicer in amounts sufficient for such purposes, as allowed
under the terms of the Mortgage. To the extent that a Mortgage does
not provide for Escrow Payments, the Servicer shall determine whether any such
payments are made by the Mortgagor at the time they first become
due. The Servicer assumes full responsibility for the payment of all
such bills and shall effect payment of all such charges irrespective of each
Mortgagor’s faithful performance in the payment of same or the making of the
Escrow Payments, and the Servicer shall make advances from its own funds to
effect such payments within such time period as will avoid the loss of the
related Mortgaged Property by foreclosure of a tax or other lien.
13
The
Servicer shall ensure that each of the Mortgage Loans shall be covered by a
Tax
Service Contract which shall be assigned to the Purchaser or the Purchaser’s
designee at the Servicer’s expense in the event that the Servicer is no longer
the servicer of the related Mortgage Loan(s) hereunder. To the extent
that a Mortgage Loan does not have a Tax Service Contract, the Servicer shall
pay to a tax service vendor the appropriate fee to obtain coverage.
Section
2.09 Protection of
Accounts.
The
Servicer may transfer the Escrow Account to a different Qualified Depository
from time to time. Such transfer shall be made only upon obtaining
the consent of the Purchaser, which consent shall not be withheld
unreasonably.
The
Servicer shall bear any expenses, losses or damages sustained by the Purchaser
because the Escrow Account are not demand deposit accounts.
Section
2.10 Maintenance of Hazard
Insurance.
The
Servicer shall cause to be maintained for each Mortgage Loan, hazard insurance
such that all buildings upon the Mortgaged Property are insured by a generally
acceptable insurer rated as described in the Underwriting Guidelines against
loss by fire, hazards of extended coverage and such other hazards as are
required to be insured pursuant to Accepted Servicing Practices, in an amount
which is at least equal to the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loan and (ii) the greater of (a) the
aggregate unpaid principal balance of the Mortgage Loan and, (b) an amount
such
that the proceeds thereof shall be sufficient to prevent the Mortgagor or the
loss payee from becoming a co-insurer.
If
required by the National Flood Insurance Act of 1968, as amended, each Mortgage
Loan is, and shall continue to be, covered by a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier rated
as described in the Underwriting Guidelines in an amount representing coverage
not less than the least of (i) the aggregate unpaid principal balance of the
related Mortgage Loan and of any mortgage loan senior to such Mortgage Loan,
(ii) the maximum amount of insurance which is available under the National
Flood
Insurance Act of 1968, as amended (regardless of whether the area in which
such
Mortgaged Property is located is participating in such program), and (iii)
the
full replacement value of the improvements which are part of such Mortgaged
Property. If a Mortgaged Property is located in a special flood
hazard area and is not covered by flood insurance or is covered in an amount
less than the amount required by the National Flood Insurance Act of 1968,
as
amended, the Servicer shall notify the related Mortgagor that the Mortgagor
must
obtain such flood insurance coverage, and if said Mortgagor fails to obtain
the
required flood insurance coverage within forty five (45) days after such
notification, the Servicer shall immediately force place the required flood
insurance on the Mortgagor’s behalf.
If
a
Mortgage is secured by a unit in a condominium project, the Servicer shall
verify that the coverage required of the owner’s association, including hazard,
flood, liability, and fidelity coverage, is being maintained in accordance
with
Accepted Servicing Practices, and
14
secure
from the owner’s association its agreement to notify the Servicer promptly of
any change in the insurance coverage or of any condemnation or casualty loss
that may have a material effect on the value of the Mortgaged Property as
security.
The
Servicer shall cause to be maintained on each Mortgaged Property such other
or
additional insurance as may be required pursuant to such applicable laws and
regulations as shall at any time be in force and as shall require such
additional insurance, or pursuant to the requirements of any private mortgage
guaranty insurer, or as may be required to conform with Accepted Servicing
Practices.
In
the
event that the Purchaser or the Servicer shall determine that the Mortgaged
Property should be insured against loss or damage by hazards and risks not
covered by the insurance required to be maintained by the Mortgagor pursuant
to
the terms of the Mortgage, the Servicer shall communicate and consult with
the
Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Servicer and its successors and
assigns as a mortgagee and loss payee and shall be endorsed with non
contributory standard or New York mortgagee clauses which shall provide for
at
least 30 days prior written notice of any cancellation, reduction in amount
or
material change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent, provided, however, that the Servicer
shall not accept any such insurance policies from insurance companies unless
such companies are as described in the Underwriting Guidelines and are licensed
to do business in the jurisdiction in which
the
Mortgaged Property is located. The Servicer shall determine that such
policies provide sufficient risk coverage and amounts as required pursuant
to
Accepted Servicing Practices, that they insure the property owner, and that
they
properly describe the property address. The Servicer shall furnish to
the Mortgagor a formal notice of expiration of any such insurance in sufficient
time for the Mortgagor to arrange for renewal coverage by the expiration date;
provided, however, that in the event that no such notice is furnished by the
Servicer, the Servicer shall ensure that replacement insurance policies are
in
place in the required coverages and the Servicer shall be solely liable for
any
losses in the event coverage is not provided.
Pursuant
to Section 2.04, any amounts collected by the Servicer under any such policies
(other than amounts to be deposited in the Escrow Account and applied to the
restoration or repair of the related Mortgaged Property, or property acquired
in
liquidation of the Mortgage Loan, or to be released to the Mortgagor, in
accordance with the Servicer’s normal servicing procedures as specified in
Section 2.14) shall be deposited in the Custodial Account subject to withdrawal
pursuant to Section 2.05.
Section
2.11 Maintenance of Mortgage Impairment
Insurance.
In
the
event that the Servicer shall obtain and maintain a blanket policy insuring
against losses arising from fire and hazards covered under extended coverage
on
all of the Mortgage Loans, then, to the extent such policy provides coverage
in
an amount equal to the
15
amount
required pursuant to Section 2.10 and otherwise complies with all other
requirements of Section 2.10, it shall conclusively be deemed to have satisfied
its obligations as set forth in Section 2.10. Any amounts collected
by the Servicer under any such policy relating to a Mortgage Loan shall be
deposited in the Custodial Account subject to withdrawal pursuant to Section
2.05. Such policy may contain a deductible clause, in which case, in
the event that there shall not have been maintained on the related Mortgaged
Property a policy complying with Section 2.10, and there shall have been a
loss
which would have been covered by such policy, the Servicer shall deposit in
the
Custodial Account at the time of such loss the amount not otherwise payable
under the blanket policy because of such deductible clause, such amount to
be
deposited from the Servicer’s funds, without reimbursement
therefor. Upon request of the Purchaser, the Servicer shall cause to
be delivered to the Purchaser a certified true copy of such policy and a
statement from the insurer thereunder that such policy shall in no event be
terminated or materially modified without 30 days’ prior written notice to the
Purchaser.
Section
2.12 Maintenance of Fidelity Bond and
Errors and Omissions Insurance.
The
Servicer shall maintain with responsible companies, at its own expense, a
blanket Fidelity Bond and an Errors and Omissions Insurance Policy, with broad
coverage on all officers, employees or other persons acting in any capacity
requiring such persons to handle funds, money, documents or papers relating
to
the Mortgage Loans (“Servicer Employees”). Any such Fidelity
Bond and Errors and Omissions Insurance Policy shall be in the form of the
Mortgage Banker’s Blanket Bond and shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions
and
negligent acts of such Servicer Employees. Such Fidelity Bond and
Errors and Omissions Insurance Policy also shall protect
and insure the Servicer against losses in connection with the release or
satisfaction of a Mortgage Loan without having obtained payment in full of
the
indebtedness secured thereby. No provision of this Section 2.12
requiring such Fidelity Bond and Errors and Omissions Insurance Policy shall
diminish or relieve the Servicer from its duties and obligations as set forth
in
this Agreement. The minimum coverage under any such Fidelity Bond and
Errors and Omissions Insurance Policy shall be at least equal to the
corresponding amounts required by ▇▇▇▇▇▇ Mae in the ▇▇▇▇▇▇ ▇▇▇ Guides or by
▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇’ & Servicers’ Guide. Upon
the request of the Purchaser, the Servicer shall cause to be delivered to the
Purchaser a certified true copy of such Fidelity Bond and Errors and Omissions
Insurance Policy and a statement from the surety and the insurer that such
Fidelity Bond and Errors and Omissions Insurance Policy shall in no event be
terminated or materially modified without 30 days’ prior written notice to the
Purchaser.
Section
2.13 Inspections.
The
Servicer shall inspect the Mortgaged Property as often as is deemed necessary
by
the Servicer to assure itself that the value of the Mortgaged Property is being
preserved. In addition, if any Mortgage Loan is more than 45 and less
than 60 days delinquent, the Servicer shall inspect the Mortgaged Property
and
shall conduct subsequent inspections in accordance with Accepted Servicing
Practices. The Servicer shall keep a written report of each such
inspection.
16
Section
2.14 Restoration of Mortgaged
Property.
The
Servicer need not obtain the approval of the Purchaser prior to releasing any
Insurance Proceeds or Condemnation Proceeds to the Mortgagor to be applied
to
the restoration or repair of the Mortgaged Property if such release is in
accordance with Accepted Servicing Practices and the terms of this
Agreement. At a minimum, the Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds or
Condemnation Proceeds:
(i) the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens;
(iii) the
Servicer shall verify that the Mortgage Loan is not in default; and
(iv) pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
If
the
Purchaser is named as an additional loss payee, the Servicer is hereby empowered
to endorse any loss draft issued in respect of such a claim in the name of
the
Purchaser.
Section
2.15 Maintenance of PMI Policy;
Claims.
With
respect to each Mortgage Loan covered by a PMI Policy, as set forth on the
Mortgage Loan Schedule, the Servicer shall, without any cost to the Purchaser,
maintain or cause the Mortgagor to maintain in full force and effect a PMI
Policy, and shall pay or shall cause the Mortgagor to pay the premium thereon
on
a timely basis, for the term of such Mortgage Loan. In the event that
such PMI Policy shall be terminated, the Servicer shall obtain from another
Qualified Insurer a comparable replacement policy, with a total coverage equal
to the remaining coverage of such terminated PMI Policy. If the
insurer shall cease to be a Qualified Insurer, the Servicer shall determine
whether recoveries under the PMI Policy are jeopardized for reasons related
to
the financial condition of such insurer, it being understood that the Servicer
shall in no event have any responsibility or liability for any failure to
recover under the PMI Policy for such reason. If the Servicer
determines that recoveries are so jeopardized, it shall notify the Purchaser
and
the Mortgagor, if required, and obtain from another Qualified Insurer a
replacement insurance policy. The Servicer shall not take any action
which would result in noncoverage under any applicable PMI Policy of any loss
which, but for the actions of the Servicer would have been covered
thereunder. In connection with any assumption or substitution
agreement entered into or to be entered into pursuant to Section 4.01, the
Servicer shall promptly notify the insurer under the related PMI Policy, if
any,
of such assumption or substitution of liability in accordance with the terms
of
such PMI Policy and shall take all actions which may be required by such insurer
as a condition to the continuation of coverage under such PMI
Policy. If such PMI Policy is terminated as a result of such
assumption or substitution of liability, the Servicer shall obtain a replacement
PMI Policy as provided above.
17
In
connection with its activities as servicer, the Servicer agrees to prepare
and
present, on behalf of itself and the Purchaser, claims to the insurer under
any
PMI Policy in a timely fashion in accordance with the terms of such PMI Policy
and, in this regard, to take such action as shall be necessary to permit
recovery under any PMI Policy respecting a defaulted Mortgage
Loan. Pursuant to Section 2.04, any amounts collected by the Servicer
under any PMI Policy shall be deposited in the Custodial Account, subject to
withdrawal pursuant to Section 2.05.
Section
2.16 Title, Management and Disposition of
REO Property.
In
the
event that title to any Mortgaged Property is acquired in foreclosure or by
deed
in lieu of foreclosure, the deed or certificate of sale shall be taken in the
name of the Servicer or the Purchaser’s designee, on behalf of the Purchaser, or
in the event the Purchaser is not authorized or permitted to hold title to
real
property in the state where the REO Property is located, or would be adversely
affected under the “doing business” or tax laws of such state by so holding
title, the deed or certificate of sale shall be taken in the name of such Person
or Persons as shall be consistent with an Opinion of Counsel obtained by the
Servicer from any attorney duly licensed to practice law in the state where
the
REO Property is located. The Person or Persons holding such title
other than the Purchaser shall acknowledge in writing that such title is being
held as nominee for the Purchaser.
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Purchaser solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property
in
the same locality as the REO Property is managed. The Servicer shall
attempt to sell the same (and may temporarily rent the same for a period not
greater than one year, except as otherwise provided below) on such terms and
conditions as the Servicer deems to be in the best interest of the
Purchaser. The Servicer shall notify the Purchaser from time to time
as to the status of each REO Property.
The
Servicer shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year after
title has been taken to such REO Property, unless the Servicer determines,
and
gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO
Property. If a period longer than one year is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i) the Servicer
shall report monthly to the Purchaser as to the progress being made in selling
such REO Property and (ii) if, with the written consent of the Purchaser, a
purchase money mortgage is taken in connection with such sale, such purchase
money mortgage shall name the Servicer as mortgagee, and such purchase money
mortgage shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Servicer and Purchaser shall be entered into
with respect to such purchase money mortgage.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in an amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property, liability insurance
and, to the extent
18
required
and available under the National Flood Insurance Act of 1968, as amended, flood
insurance in the amount required in Section 2.10 hereof.
The
disposition of REO Property shall be carried out by the Servicer at such price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the Purchaser. The proceeds of sale of the REO Property
shall be promptly deposited in the Custodial Account. As soon as practical
thereafter the expenses of such sale shall be paid and the Servicer shall
reimburse itself pursuant to Section 2.05(iii) hereof, for any related
unreimbursed Servicing Advances, unpaid Servicing Fees and unreimbursed advances
made pursuant to this Section, and on the Remittance Date immediately following
the Principal Prepayment Period in which such sale proceeds are received the
net
cash proceeds of such sale remaining in the Custodial Account shall be
distributed to the Purchaser; provided that such distribution shall, in any
event, be made within ninety (90) days from and after the closing of the sale
of
such REO Property.
With
respect to each REO Property, the Servicer shall hold all funds collected and
received in connection with the operation of the REO Property in the Custodial
Account. The Servicer shall cause to be deposited on a daily basis
upon the receipt thereof in each Custodial Account all revenues received with
respect to the conservation and disposition of the related REO
Property.
Section
2.17 Permitted Withdrawals with respect to
REO Property.
The
Servicer shall withdraw funds on deposit in the Custodial Account with respect
to each related REO Property necessary for the proper operation, management
and
maintenance of the REO Property, including the cost of maintaining any hazard
insurance pursuant to Section 2.10 and the fees of any managing agent acting
on
behalf of the Servicer. The Servicer shall make monthly distributions
on each Remittance Date to the Purchaser of the net cash flow from the REO
Property (which shall equal the revenues from such REO Property net of the
expenses described in Section 2.16 and of any reserves reasonably required
from
time to time to be maintained to satisfy anticipated liabilities for such
expenses).
Section
2.18 Real Estate Owned
Reports.
Together
with the statement furnished pursuant to Section 2.19, the Servicer shall
furnish to the Purchaser on or before the 10th Business
Day of
each month a statement with respect to any REO Property covering the operation
of such REO Property for the previous month and the Servicer’s efforts in
connection with the sale of such REO Property and any rental of such REO
Property incidental to the sale thereof for the previous month. That
statement shall be accompanied by such other information as the Purchaser shall
reasonably request.
Section
2.19 Liquidation Reports.
Upon
the
foreclosure sale of any Mortgaged Property or the acquisition thereof by the
Purchaser pursuant to a deed in lieu of foreclosure, the Servicer shall submit
to the Purchaser a liquidation report with respect to such Mortgaged
Property.
19
Section
2.20 Reports of Foreclosures and
Abandonments of Mortgaged Property.
Following
the foreclosure sale or abandonment of any Mortgaged Property, the Servicer
shall report such foreclosure or abandonment as required pursuant to Section
6050J of the Code.
ARTICLE
III
PAYMENTS
TO PURCHASER
Section
3.01 Remittances.
With
respect to each Determination Date, the Servicer shall submit to the Purchaser
the Remittance Report required by Section 3.02 of this Agreement, setting forth
the sources and uses of funds deposited and to be deposited by the Servicer
into
the Custodial Account. If such monthly remittance advice is
determined by the Purchaser to be in order, on each Remittance Date the Servicer
shall cause all amounts deposited in the Custodial Account as of the close
of
business on the immediately preceding Determination Date, minus any amounts
attributable to Monthly Payments collected but due on a Due Date or Dates
subsequent to the first
day
of the month of the Remittance Date (which amounts shall be remitted on the
Remittance Date next succeeding the Due Period for such amounts) to be remitted
as follows: (i) to the Servicer, amounts due to the Servicer pursuant
to Section 2.05, and (ii) to the Purchaser, all funds remaining in the Custodial
Account.
With
respect to any funds deposited in the Custodial Account after the second
Business Day following the Business Day on which such deposit was required
to be
made, the Servicer shall pay to the Purchaser interest on any such late payment
at an annual rate equal to the Prime Rate, adjusted as of the date of each
change, plus two percentage points, but in no event greater than the maximum
amount permitted by applicable law. Such interest shall be deposited
in the Custodial Account by the Servicer on the date such late payment is made
and shall cover the period commencing with the day following such second
Business Day and ending with the Business Day on which such payment is made,
both inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. The
payment by the Servicer of any such interest shall not be deemed an extension
of
time for payment or a waiver of any Event of Default by the
Servicer.
Section
3.02 Statements to
Purchaser.
Each
month, no later than the 10th Business
Day (the
“Reporting Date”), the Servicer shall furnish to the Purchaser a
remittance report, in the form of Exhibit 1 hereto (the “Remittance
Report”), in electronic format acceptable to the Purchaser, containing
information regarding funds collected during the prior calendar
month.
In
addition, not more than 60 days after the end of each calendar year, commencing
with the first December 31 following the Cut-off Date, the Servicer shall
furnish to each Person who was a Purchaser of the Mortgage Loans at any time
during such calendar year
20
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 Servicer shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Servicer
pursuant to any requirements of the Internal Revenue Code as from time to time
are in force.
The
Servicer shall provide any and all information necessary for the preparation
and
filing of tax returns, information statements or other filings required to
be
delivered to any governmental taxing authority or to any Purchaser pursuant
to
any applicable law with respect to the Mortgage Loans and the transactions
contemplated hereby.
Section
3.03 Advances by
Servicer.
On
the
Business Day immediately preceding each Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds an amount equal to all
Monthly Payments which were due on the Mortgage Loans during the applicable
Due
Period and which were delinquent at the close of business on the immediately
preceding Determination Date or which were deferred pursuant to Section
2.01. The Servicer’s obligation to make such advances as to any
Mortgage Loan will continue through the earlier to occur of (a) the last Monthly
Payment
due prior to the payment in full of the Mortgage Loan or (b) the last Remittance
Date prior to the Remittance Date for the distribution of all Liquidation
Proceeds and other payments or recoveries (including Insurance Proceeds, and
Condemnation Proceeds) with respect to the Mortgage Loan. To the
extent permitted under Section 2.05 hereof, the Servicer shall be entitled
to
first priority reimbursement for principal and interest advances and for
Servicing Advances from recoveries from the related Mortgagor or from all
Liquidation Proceeds and other payments or recoveries (including Insurance
Proceeds and Condemnation Proceeds) with respect to the related Mortgage
Loan.
ARTICLE
IV
GENERAL
SERVICING PROCEDURES
Section
4.01 Transfers of Mortgaged
Property.
The
Servicer shall be required to enforce any “due-on-sale” provision contained in
any Mortgage or Mortgage Note and to deny assumption by the person to whom
the
Mortgaged Property has been or is about to be sold whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
liable on the Mortgage and the Mortgage Note. When the Mortgaged
Property has been conveyed by the Mortgagor, the Servicer shall, to the extent
it has knowledge of such conveyance, exercise its rights to accelerate the
maturity of such Mortgage Loan under the “due-on-sale” clause applicable
thereto, provided, however, that the Servicer shall not exercise such rights
if
prohibited by law from doing so, provided, however, that the Servicer shall
not
exercise such rights if prohibited by law from doing so or if the exercise
of
such rights would impair or threaten to impair any recovery under the related
PMI Policy, if any.
21
If
the
Servicer reasonably believes it is unable under applicable law to enforce such
“due-on-sale” clause, the Servicer, in the Purchaser’s name, shall, to the
extent permitted by applicable law, enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed,
pursuant to which such person becomes liable under the Mortgage Note and the
original Mortgagor remains liable thereon or (ii) in the event the Servicer
is
unable under applicable law to require that the original Mortgagor remain liable
under the Mortgage Note and the Servicer has the prior consent of the primary
mortgage guarantee insurer, a substitution of liability agreement with the
purchaser of the Mortgaged Property pursuant to which the original Mortgagor
is
released from liability and the purchaser of the Mortgaged Property is
substituted as Mortgagor and becomes liable under the Mortgage
Note. In connection with any such assumption, neither the Mortgage
Interest Rate borne by the related Mortgage Note, the term of the Mortgage
Loan
nor the outstanding principal amount of the Mortgage Loan shall be
changed.
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the Underwriting Guidelines for approving the credit of the proposed transferee
which are used by the Servicer with respect to underwriting mortgage loans
of
the same type as the Mortgage Loans. If the credit of the proposed
transferee does not meet the Underwriting Guidelines, the Servicer diligently
shall, to the extent permitted by the Mortgage or the Mortgage Note and by
applicable law, accelerate the maturity of the Mortgage Loan.
Section
4.02 Satisfaction of Mortgages and Release
of Mortgage Files.
Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Servicer shall notify the Purchaser in the Monthly Remittance
Advice as provided in Section 3.02, and may request the release of any Mortgage
Loan Documents from the Purchaser in accordance with this Section 4.02
hereof. The Servicer shall obtain discharge of the related Mortgage
Loan as of record within any related time limit required by applicable
law.
If
the
Servicer satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Servicer
otherwise prejudice any rights the Purchaser may have under the mortgage
instruments, upon written demand of the Purchaser, the Servicer shall repurchase
the related Mortgage Loan at the Repurchase Price by deposit thereof in the
Custodial Account within 2 Business Days of receipt of such demand by the
Purchaser. The Servicer shall maintain the Fidelity Bond and Errors
and Omissions Insurance Policy as provided for in Section 2.12 insuring the
Servicer against any loss it may sustain with respect to any Mortgage Loan
not
satisfied in accordance with the procedures set forth herein.
Section
4.03 Servicing
Compensation.
As
consideration for servicing the Mortgage Loans, the Servicer shall withdraw
the
Servicing Fee with respect to each Mortgage Loan from the Custodial Account
pursuant to Section 2.05 hereof. Such Servicing Fee shall be payable
monthly, computed on the basis of the number of Mortgage Loans subject to this
Agreement. The Servicing Fee shall be pro-rated
22
when
servicing is for less than one month. The obligation of the Purchaser
to pay, and the Servicer’s right to withdraw, the Servicing Fee is limited to,
and the Servicing Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to the extent
permitted by Section 2.05), of such Monthly Payment collected by the Servicer,
or as otherwise provided under Section 2.05.
Additional
servicing compensation in the form of Ancillary
Income shall be retained by the Servicer to the extent not required to be
deposited in the Custodial Account. The Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement thereof except as
specifically provided for herein.
Section
4.04 Annual Statement as to
Compliance.
The
Servicer shall deliver to the Purchaser, on or before March 10th each year
beginning March 10, 2007, and, if applicable, on the related Transfer Date
an
Officer’s Certificate, stating that (i) a review of the activities of the
Servicer during the preceding calendar year and of performance under this
Agreement has been made under such officer’s supervision, and (ii) the Servicer
has complied fully with the provisions of Article II and Article IV, and (iii)
to
the
best of such officer’s knowledge, based on such review, the Servicer has
fulfilled all its obligations under this Agreement throughout such year, or,
if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof and
the action being taken by the Servicer to cure such default.
Section
4.05 Annual Independent Public
Accountants’ Servicing Report.
As
long
as any Mortgage Loans are being serviced hereunder, or were serviced during
the
prior calendar year on, or before March 10th of each year beginning March 10,
2007, the Servicer, at its expense, shall cause a firm of independent public
accountants which is a member of the American Institute of Certified Public
Accountants to furnish a statement to each Purchaser to the effect that such
firm has examined certain documents and records relating to the servicing of
the
Mortgage Loans and this Agreement and that such firm is of
the opinion that the provisions of Article II and Article III have been complied
with, and that, on the basis of such examination conducted substantially in
compliance with the Uniform Single Attestation Program for Mortgage Bankers,
nothing has come to their attention which would indicate that such servicing
has
not been conducted in compliance therewith, except for such exceptions as such
firm shall believe to be immaterial.
Section
4.06 Right to Examine Servicer
Records.
The
Purchaser shall have the right to examine and audit any and all of the books,
records, or other information of the Servicer, whether held by the Servicer
or
by another on its behalf, with respect to or concerning this Agreement or the
Mortgage Loans, during business hours or at such other times as may be
reasonable under applicable circumstances, upon reasonable advance
notice.
23
Section
4.07 Compliance with ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act of 1999.
With
respect to each Mortgage Loan and the related Mortgagor, the Servicer shall
comply with Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999, as amended and all
applicable regulations promulgated thereunder, and shall provide all notices
required thereunder.
ARTICLE
V
SERVICER
TO COOPERATE
Section
5.01 Provision of
Information.
During
the term of this Agreement, the Servicer shall furnish to the Purchaser such
periodic, special, or other reports or information, whether or not provided
for
herein, as shall be necessary, reasonable, or appropriate with respect to the
Purchaser or the purposes of this Agreement. All such reports or
information shall be provided by and in accordance with all reasonable
instructions and directions which the Purchaser may give.
The
Servicer shall execute and deliver all such instruments and take all such action
as the Purchaser may reasonably request from time to time, in order to
effectuate the purposes and to carry out the terms of this
Agreement.
Section
5.02 Financial Statements; Servicing
Facilities.
In
connection with marketing the Mortgage Loans, the Purchaser may make available
to a prospective purchaser audited financial statements of the corporate group
that includes the Servicer for the most recently completed five fiscal years
for
which such statements are available, as well as a Consolidated Statement of
Condition at the end of the last two fiscal years covered by any Consolidated
Statement of Operations. The Servicer also shall make available any
comparable interim statements to the extent any such statements have been
prepared by or on behalf of the corporate group that includes the Servicer
(and
are available upon request to members or stockholders of the corporate group
that includes the Servicer or to the public at large). The Servicer
shall furnish promptly to the Purchaser or a prospective purchaser copies of
the
statements specified above.
The
Servicer shall make available to the Purchaser or any prospective Purchaser
a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting recent developments affecting the Servicer or the financial
statements of the corporate group that includes the Servicer, and to permit
any
prospective purchaser to inspect the Servicer’s servicing facilities for the
purpose of satisfying such prospective purchaser that the Servicer has the
ability to service the Mortgage Loans as provided in this
Agreement.
24
ARTICLE
VI
TERMINATION
Section
6.01 Termination.
(a)
Termination of Servicer. The respective obligations and responsibilities
of the Servicer shall terminate upon: (i) the later of the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or the disposition of all REO Property and the remittance of all funds
due
hereunder; or (ii) by mutual consent of the Servicer and the Purchaser in
writing; or (iii) in the event that the Mortgage Loans become the subject of
a
Securitization Transaction, in accordance with any requirements of any rating
agency which has rated or will rate some or all of the securities issued in
connection with such Securitization Transaction, as such requirements pertain
to
such Securitization Transaction.
(b)
Agency Suspension. Should the Servicer at any time during the term of
this Agreement have its right to service temporarily or permanently suspended
by
▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac or otherwise cease to be an approved servicer of
conventional residential mortgage loans for ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, then
the
Purchaser may immediately terminate this Agreement and accelerate performance
of
the provisions of the Purchase Agreement to require immediate transfer of the
Servicing Rights.
Section
6.02 Termination Upon Transfer of
Servicing.
(a) Termination
Procedures. Subject to Section 11.01, the Purchaser may terminate this
Agreement and transfer the servicing from the Servicer with respect to the
Mortgage Loans on such date as the Purchaser shall inform the Servicer (the
“Transfer Date”) by providing written notice to the Servicer at least 30
Business Days prior to the Transfer Date of its intent to transfer the servicing
of the Mortgage Loans from the Servicer on the Transfer Date, provided that,
in
any event, the Servicer shall be given timely notice to allow it to notify
the
related mortgagors of the transfer of servicing in accordance with the
requirements of the Real Estate Settlement Procedures Act and the ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ National Affordable Housing Act of 1990, as amended. On or
before the Transfer Date specified by the Purchaser in accordance with this
paragraph (a) for the transfer of servicing from the Servicer, the Servicer
shall prepare, execute and deliver to the successor entity designated by the
Purchaser any and all documents and other instruments, place in such successor’s
possession all Mortgage Loan Documents necessary or appropriate to effect the
purposes of such notice of termination, including but not limited to the
transfer and endorsement or assignment of the related Mortgage Loans and related
documents, at the Purchaser’s sole expense. The Servicer shall
cooperate fully with the Purchaser and such successor in effecting the
termination of the Servicer’s responsibilities and rights
hereunder.
Except
as
otherwise provided in this Agreement, on the Transfer Date for each Mortgage
Loan, this Agreement, except for Articles VI, VIII, IX and X which shall survive
the related Transfer Date, shall terminate with respect to such Mortgage
Loan.
25
(b) Servicing
Advances and Advances of Principal and Interest. The Servicer shall be
reimbursed for any Servicing Advances or advances of principal and interest
in
relation to any Mortgage Loan no later than five (5) Business Days following
the
related Transfer Date, notwithstanding the fact that the Servicer or the
successor servicer has not received a Monthly Payment or Liquidation Proceeds
in
relation to such Mortgage Loan. At such time, the Servicer shall be
entitled to be reimbursed for all unreimbursed Servicing Advances and/or
advances of principal and interest with respect to such Mortgage Loan on a
first
priority basis from the Monthly Payment or Liquidation Proceeds received with
respect to such Mortgage Loan. This Section 6.02(b) shall survive
each Transfer Date.
ARTICLE
VII
BOOKS
AND RECORDS
Section
7.01 Possession of Servicing
Files.
The
contents of each Servicing File are and shall be held in trust by the Servicer
for the benefit of the Purchaser as the owner thereof. The Servicer
shall maintain in the Servicing File a copy of the contents of each Mortgage
File and the originals of the documents in each Mortgage File not delivered
to
the Purchaser. The possession of the Servicing File by the Servicer
is at the will of the Purchaser for the sole purpose of servicing the related
Mortgage Loan, pursuant to this Agreement, and such retention and possession
by
the Servicer is in its capacity
as Servicer only and at the election of the Purchaser. The Servicer
shall release its custody of the contents of any Servicing File only in
accordance with written instructions from the Purchaser, unless such release
is
required as incidental to the Servicer’s servicing of the Mortgage Loans
pursuant to this Agreement, or is in connection with a repurchase of any
Mortgage Loan pursuant to Section 9 of the Purchase Agreement.
The
Servicer shall be responsible for maintaining, and shall maintain, a complete
set of books and records for each Mortgage Loan which shall be marked clearly
to
reflect the ownership of each Mortgage Loan by the Purchaser. In
particular, the Servicer shall maintain in its possession, available for
inspection by the Purchaser’s designee, and shall deliver to the Purchaser or
its designee upon demand, evidence of compliance with all federal, state and
local laws, rules and regulations, including but not limited to documentation
as
to the method used in determining the applicability of the provisions of the
National Flood Insurance Act of 1968, as amended, to the Mortgaged Property,
documentation evidencing insurance coverage and eligibility of any condominium
project pursuant to Accepted Servicing Practices and periodic inspection reports
as required by Section 2.13.
The
Servicer shall keep at its servicing office books and records in which, subject
to such reasonable regulations as it may prescribe, the Servicer shall note
transfers of Mortgage Loans. No transfer of a Mortgage Loan may be
made unless such transfer is in compliance with the terms hereof. For
the purposes of this Agreement, the Servicer shall be under no obligation to
deal with any person with respect to this Agreement or the Mortgage Loans unless
the books and records show such person as the owner of the Mortgage
Loan. The Purchaser may, subject to the terms of this Agreement, sell
or transfer one or more of the Mortgage Loans, provided, however, that the
transferee will not be deemed to be a Purchaser hereunder binding upon
the
26
Servicer
unless such transferee shall agree in writing to be bound by the terms of this
Agreement and of the assignment and assumption of this Agreement executed by
the
transferee shall have been delivered to the Servicer. The Purchaser
also shall advise the Servicer of the transfer. Upon receipt of
notice of the transfer, the Servicer shall cause its books and records to
reflect the ownership of the Mortgage Loans of such assignee, and shall release
the previous Purchaser from its obligations hereunder with respect to the
Mortgage Loans sold or transferred.
ARTICLE
VIII
INDEMNIFICATION
AND ASSIGNMENT
Section
8.01 Indemnification.
The
Servicer agrees to indemnify and hold the Purchaser harmless from any liability,
claim, loss or damage (including, without limitation, any reasonable legal
fees,
judgments or expenses relating to such liability, claim, loss or damage) to
the
Purchaser directly or indirectly resulting from the Servicer’s
failure:
(a) to
observe and perform any or all of Servicer’s duties, obligations, covenants,
agreements, warranties or representations contained in this Agreement or in
the
Purchase Agreement; or
(b) to
comply with all applicable requirements with respect to the servicing of the
Mortgage Loans as set forth herein.
The
Servicer immediately shall notify the Purchaser if a claim is made by a third
party with respect to this Agreement.
Section
8.02 Limitation on Liability of Servicer
and Others.
Neither
the Servicer nor any of the directors, officers, employees or agents of the
Servicer shall be under any liability to the Purchaser for any action taken
or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment, provided, however, that this provision
shall not protect the Servicer or any such person against any breach of
warranties or representations made herein, its own negligent actions, or failure
to perform its obligations in strict compliance with any standard of care set
forth in this Agreement, or any liability which would otherwise be imposed
by
reason of any breach of the terms and conditions of this
Agreement. The Servicer and any director, officer, employee or agent
of the Servicer may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its duties
to service the Mortgage Loans in accordance with this Agreement and which in
its
opinion may involve it in any expense or liability, provided, however, that
the
Servicer may, with the prior written consent of the Purchaser, undertake any
such action which it may deem necessary or desirable in respect to this
Agreement and the rights and duties of the parties hereto. In such
event, the Servicer shall be entitled to reimbursement from the Purchaser of
the
reasonable legal expenses and costs of such action.
27
Section
8.03 Limitation on Resignation and
Assignment by Servicer.
The
Purchaser has entered into this Agreement with the Servicer and subsequent
purchasers will purchase the Mortgage Loans in reliance upon the independent
status of the Servicer, and the representations as to the adequacy of its
servicing facilities, plant, personnel, records and procedures, its integrity,
reputation and financial standing, and the continuance
thereof. Therefore, the Servicer shall not assign this Agreement or
the servicing hereunder or delegate its rights or duties hereunder or any
portion hereof or sell or otherwise dispose of all or substantially all of
its
property or assets without the prior written consent of the Purchaser, which
consent shall be granted or withheld in the sole discretion of the
Purchaser.
The
Servicer shall not resign from the obligations and duties hereby imposed on
it
except by consent of the Purchaser or upon the determination that its duties
hereunder are no longer permissible under applicable law and such incapacity
cannot be cured by the Servicer. Any such determination permitting
the resignation of the Servicer shall be evidenced by an Opinion of Counsel
to
such effect delivered to the Purchaser which Opinion of Counsel shall be in
form
and substance acceptable to the Purchaser. No such resignation shall
become effective until a successor shall have assumed the Servicer’s
responsibilities and obligations hereunder in the manner provided in Section
6.02.
Without
in any way limiting the generality of this Section 8.03, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion thereof or sell or
otherwise dispose of all or substantially all of its property or assets without
the prior written consent of the Purchaser, then the Purchaser shall have the
right to terminate this Agreement upon notice given as set forth in Section
12.01, without any payment of any penalty or damages and without any liability
whatsoever to the Purchaser or any third party.
Section
8.04 Assignment by
Purchaser.
The
Purchaser shall have the right, without the consent of the Servicer, to assign,
in whole or in part, its interest under this Agreement with respect to some
or
all of the Mortgage Loans, and designate any person to exercise any rights
of
the Purchaser hereunder, by executing an assignment and assumption agreement
and
the assignee or designee shall accede to the rights and obligations hereunder
of
the Purchaser with respect to such Mortgage Loans. All references to
the Purchaser in this Agreement shall be deemed to include its assignee or
designee. Any such notice of assignment shall be in writing and
delivered to the Servicer as provided in Section 12.01 of this
Agreement.
Section
8.05 Merger or Consolidation of the
Servicer.
The
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the state of its incorporation except as permitted
herein, and will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall
be necessary to protect the validity and enforceability of this Agreement,
or
any of the Mortgage Loans and to perform its duties under this
Agreement. Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from
28
any
merger, conversion or consolidation to which the Servicer shall be a party,
or
any Person succeeding to the business of the Servicer, shall be the successor
of
the Servicer hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
Person shall be an institution whose deposits are insured by FDIC or a company
whose business includes the origination and servicing of mortgage loans, shall
meet the requirements set forth in Section 6.02 hereof, and shall have a
tangible net worth not less than $25,000,000.
ARTICLE
IX
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF PURCHASER
As
of the
Closing Date, the Purchaser warrants and represents to, and covenants and agrees
with, the Servicer as follows:
Section
9.01 Authority and
Capacity.
The
execution, delivery and performance by the Purchaser of this Agreement has
been
duly and validly authorized by all necessary corporate action. This
Agreement constitutes a legal, valid and enforceable obligation of the
Purchaser.
ARTICLE
X
REPRESENTATIONS
AND WARRANTIES OF SERVICER
As
of the
Closing Date, the Servicer warrants and represents to, and covenants and agrees
with, the Purchaser as follows:
Section
10.01 Due Organization and Authority.
The
Servicer is a federal savings bank duly organized, validly existing and in
good
standing under the laws of the United States of America as now being conducted
and is licensed, qualified and in good standing in each state where a Mortgaged
Property is located if the laws of such state require licensing or qualification
in order to conduct business of the type conducted by the Servicer, and in
any
event the Servicer is in compliance with the laws of any such state to the
extent necessary to ensure the enforceability of the related Mortgage Loan
in
accordance with the terms of this Agreement; the Servicer has the full corporate
power and authority to execute and deliver this Agreement and to perform in
accordance herewith; the execution, delivery and performance of this Agreement
(including all instruments or transfer to be delivered pursuant to this
Agreement) by the Servicer and the consummation of the transactions contemplated
hereby have been duly and validly authorized; this Agreement evidences the
valid, binding and enforceable obligation of the Servicer; and all requisite
corporate action has been taken by the Servicer to make this Agreement valid
and
binding upon the Servicer in accordance with its terms;
29
Section
10.02 Ordinary Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Servicer.
Section
10.03 No Conflicts.
Neither
the execution and delivery of this Agreement, nor the fulfillment of or
compliance with the terms and conditions of this Agreement, will conflict with
or result in a breach of any of the terms, conditions or provisions of the
Servicer’s charter or by-laws or any legal restriction or any agreement or
instrument to which the Servicer is now a party or by which it is bound, or
constitute a default or result in an acceleration under any of the foregoing,
or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Servicer or its property is subject, or impair the ability of
the
Purchaser to realize on the Mortgage Loans, or impair the value of the Mortgage
Loans.
Section
10.04 Ability to Service.
The
Servicer is an approved servicer of conventional residential mortgage loans
for
▇▇▇▇▇▇ ▇▇▇ 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 Servicer is in good standing to enforce, originate,
sell mortgage loans to, and service mortgage loans in the jurisdictions wherein
the Mortgaged Properties are located and with ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac, and
no
event has occurred, including but not limited to a change in insurance coverage,
which would make the Servicer unable to comply with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac
eligibility requirements or which would require notification to either ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac.
Section
10.05 Ability to Perform.
The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement.
Section
10.06 No Litigation Pending.
There
is
no action, suit, proceeding or investigation pending or threatened against
the
Servicer, before any court, administrative agency or other tribunal asserting
the invalidity of this Agreement, seeking to prevent the consummation of any
of
the transactions contemplated by this Agreement or which, either in
any one instance or in the aggregate, may result in any material adverse change
in the business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right or ability of the Servicer
to carry on its business substantially as now conducted, or in any material
liability on the part of the Servicer, or which would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or
to be
taken in connection with the obligations of the Servicer contemplated herein,
or
which would be likely to impair materially the ability of the Servicer to
perform under the terms of this Agreement.
30
Section
10.07 No Consent Required.
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of
or compliance by the Servicer with this Agreement or the servicing of the
Mortgage Loans as evidenced by the consummation of the transactions contemplated
by this Agreement, or if required, such approval has been obtained prior to
the
Closing Date.
Section
10.08 No Untrue Information.
Neither
this Agreement nor any statement, report or other document furnished or to
be
furnished pursuant to this Agreement or in connection with the transactions
contemplated hereby contains any untrue statement of fact or omits to state
a
fact necessary to make the statements contained therein not
misleading.
Section
10.09 Reasonable Servicing Fee.
The
Servicer acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Servicer, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement and the Purchase Agreement.
ARTICLE
XI
DEFAULT
Section
11.01 Events of Default.
The
following shall constitute an Event of Default under this Agreement on the
part
of the Servicer:
(a) any
failure by the Servicer to remit to the Purchaser any payment required to be
made under the terms of this Agreement which continues unremedied for a period
of two Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the
Purchaser; or
(b) the
failure by the Servicer duly to observe or perform in any material respect
any
other of the covenants or agreements on the part of the Servicer set forth
in
this Agreement which continues unremedied for a period of 30 days (except that
such number of days shall be fifteen in the case of a failure to pay any premium
for any insurance policy required to be maintained under this Agreement) after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Purchaser or by the
Custodian; or
(c) a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator
in
any insolvency, bankruptcy, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or
31
for
the
winding-up or liquidation of its affairs, shall have been entered against the
Servicer and such decree or order shall have remained in force undischarged
or
unstayed for a period of 60 days; or
(d) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling
of
assets and liabilities or similar proceedings of or relating to the Servicer
or
of or relating to all or substantially all of its property; or
(e) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(f) the
Servicer attempts to assign its right to servicing compensation hereunder or
the
Servicer attempts, without the consent of the Purchaser, to sell or otherwise
dispose of all or substantially all of its property or assets or to assign
this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof; or
(g) the
Servicer fails to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are
located.
In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Purchaser may have at law or
equity to damages, including injunctive relief and specific performance, the
Purchaser, by notice in writing to the Servicer, may immediately terminate
without compensation all the rights and obligations of the Servicer under this
Agreement and any Reconstitution Agreement and in and to the Mortgage Loans
and
the proceeds thereof, provided, however, that with respect to any termination
as
a result of an Event of Default under clause (c) or (d) above, the Servicer,
within sixty (60) days following receipt of such notice from the Purchaser,
shall have the right to deliver to the Purchaser a firm commitment by a third
party servicer (an “Acceptable Commitment”), which commitment is in form
and substance acceptable to the Purchaser in its sole discretion, to purchase
the Servicing Rights and assume the servicing obligations hereunder or under
any
Reconstitution Agreement related to any of the Mortgage Loans; provided further
that such third party servicer is acceptable to the Purchaser in its sole
discretion.
Upon
receipt by the Servicer of such written notice, all authority and power of
the
Servicer under this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor appointed pursuant
to
Section 6.02. Upon written request from the Purchaser, the Servicer
shall prepare, execute and deliver any and all documents and other instruments,
place in such successor’s possession all Mortgage Files, and do or accomplish
all other acts or things necessary or appropriate to effect the purposes of
such
notice of termination, whether to complete the transfer and endorsement or
assignment of the Mortgage Loans and related documents, or otherwise, at the
Servicer’s sole expense. The Servicer agrees to cooperate with the
Purchaser and such successor in effecting the termination of the Servicer’s
responsibilities and rights hereunder, including, without limitation, the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to
32
the
Custodial Account or Escrow Account or thereafter received with respect to
the
Mortgage Loans.
Section
11.02 Waiver of Defaults.
The
Purchaser may waive any default by the Servicer in the performance of its
obligations hereunder and its consequences. Upon any such waiver of a
past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section
12.01 Notices.
All
notices, requests, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon the delivery or mailing thereof, as the
case
may be, sent by registered or certified mail, return receipt
requested:
(a) If
to Purchaser to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Inc.
1221
Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ - Whole Loan Operations Manager
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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with
copies to:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ – Servicing Oversight
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▇▇▇▇
▇-▇▇▇ ▇▇▇
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▇▇▇▇▇
▇▇▇
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▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax: ▇▇▇-▇▇▇-▇▇▇▇
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Email: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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(b) If
to Servicer to:
IndyMac
Bank, F.S.B.
Capital
Markets
33
▇▇▇▇
▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: SVP,
Chief Operations Officer
Section
12.02 Waivers.
Either
the Servicer or the Purchaser may upon consent of all parties, by written notice
to the others:
(a) Waive
compliance with any of the terms, conditions or covenants required to be
complied with by the others hereunder; and
(b) Waive
or modify performance of any of the obligations of the others
hereunder.
The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any other subsequent
breach.
Section
12.03 Entire Agreement; Amendment.
This
Agreement and the Purchase Agreement constitute the entire agreement between
the
parties with respect to servicing of the Mortgage Loans. This
Agreement may be amended and any provision hereof waived, but, only in writing
signed by the party against whom such enforcement is sought.
Section
12.04 Execution; Binding Effect.
This
Agreement may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same agreement. Subject to Sections 8.03 and 8.04, this
Agreement shall inure to the benefit of and be binding upon the Servicer and
the
Purchaser and their respective successors and assigns.
Section
12.05 Headings.
Headings
of the Articles and Sections in this Agreement are for reference purposes only
and shall not be deemed to have any substantive effect.
Section
12.06 Applicable Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies hereunder shall be determined
in
accordance with the substantive laws of the State of New York (without regard
to
conflicts of laws principles), except to the extent preempted by Federal
law.
34
Section
12.07 Relationship of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties. The duties and responsibilities of the
Servicer shall be rendered by it as an independent contractor and not as an
agent of the Purchaser. The Servicer shall have full control of all
of its acts, doings, proceedings, relating to or requisite in connection with
the discharge of its duties and responsibilities under this
Agreement.
Section
12.08 Severability of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be held invalid for any reason whatsoever, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section
12.09 [Reserved].
Section
12.10 Exhibits.
The
exhibits to this Agreement are hereby incorporated and made a part hereof and
are integral parts of this Agreement.
Section
12.11 Counterparts.
This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and
all such counterparts shall constitute one and the same instrument.
Section
12.12 No Solicitation.
From
and
after the Closing Date, the Servicer agrees that it will not take any action
or
permit or cause any action to be taken by any of its agents or affiliates,
or by
any independent contractors on the Servicer’s behalf, to personally, by
telephone or mail (via electronic means or otherwise), solicit the
borrower or obligor under any Mortgage Loan for any purpose whatsoever,
including to refinance a Mortgage Loan, in whole or in part, without (i) the
prior written consent of the Purchaser; or (ii) written notice from the related
borrower or obligor under a Mortgage Loan of such party’s intention to refinance
such Mortgage Loan. It is understood and agreed that all rights and
benefits relating to the solicitation of any Mortgagors and the attendant
rights, title and interest in and to the list of such Mortgagors and data
relating to their Mortgages (including insurance renewal dates) shall be
transferred to the Purchaser pursuant hereto on the Closing Date and the
Servicer shall take no action to undermine these rights and
benefits. Notwithstanding the foregoing, it is understood and agreed
that promotions undertaken by the Servicer or any affiliate of the
Servicer which are directed to the general public at large, including, without
limitation, mass mailing based on commercially acquired mailing lists,
newspaper, radio and television advertisements shall not constitute solicitation
under this Section 12.12.
35
Section
12.13 Cooperation of Servicer with a
Reconstitution.
The
Servicer and the Purchaser agree that with respect to some or all of the
Mortgage Loans, after the Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Purchaser’s sole option, the Purchaser may
effect a sale (each, a “Reconstitution”) of some or all of the Mortgage
Loans then subject to this Agreement, without recourse, to:
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a)
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▇▇▇▇▇▇
Mae under its Cash Purchase Program or MBS Program (Special Servicing
Option) (each a “▇▇▇▇▇▇ ▇▇▇ Transfer”);
or
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b)
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▇▇▇▇▇▇▇
Mac (the “▇▇▇▇▇▇▇ Mac Transfer”);
or
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c)
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one
or more third party purchasers in one or more Whole Loan Transfers;
or
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d)
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one
or more trusts or other entities to be formed as part of one or more
Securitization Transactions.
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The
Servicer agrees to execute in connection with any Agency Transfer, any and
all
pool purchase contracts, and/or agreements reasonably acceptable to the Servicer
among the Purchaser, the Servicer, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac (as the case may
be) and any servicer in connection with a Whole Loan Transfer, an assignment
and
assumption agreement or a participation and servicing agreement in form and
substance reasonably acceptable to the Servicer, and in connection with a
Securitization Transaction, a pooling and servicing agreement or sale and
servicing agreement in form and substance reasonably acceptable to the Servicer
(collectively the agreements referred to herein are designated, the
“Reconstitution Agreements”).
With
respect to each Whole Loan Transfer and each Securitization Transaction entered
into by the Purchaser, the Servicer agrees (1) to cooperate fully with the
Purchaser and any prospective purchaser with respect to all reasonable requests
and due diligence procedures; (2) to execute, deliver and perform all
Reconstitution Agreements required by the Purchaser; (3) to restate the
representations and warranties set forth in this Agreement as of the settlement
or closing date in connection with such Reconstitution. In that
connection, the Servicer shall provide to such master servicer or issuer, as
the
case may be, and any other participants in such Reconstitution: (i) any and
all
information and appropriate verification of information which may be reasonably
available to the Servicer or its affiliates, whether through letters of its
auditors and counsel or otherwise, as the Purchaser or any such other
participant shall request; (ii) such additional reasonable representations,
warranties, covenants, opinions of counsel, letters from auditors, and
certificates of public officials or officers of the Servicer as are believed
necessary by the Purchaser or any such other participant; and (iii) to
execute, deliver and satisfy all conditions set forth in any indemnity agreement
required by the Purchaser or any such participant mutually agreeable to the
Servicer and the Purchaser. The Servicer shall indemnify the
Purchaser, each Affiliate designated by the Purchaser and each Person who
controls the Purchaser or such Affiliate and hold each of them harmless from
and
against any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and any other costs, fees
and
expenses that each of them may sustain in any way related to any information
provided by or on behalf of the Servicer regarding the Servicer,
the
36
Servicer’s
servicing practices or performance, the Mortgage Loans or the Underwriting
Guidelines set forth in any offering document prepared in connection with any
Reconstitution. Moreover, the Servicer agrees to cooperate with all
reasonable requests made by the Purchaser to effect such Reconstitution
Agreements. But in no event shall the Servicer be obligated to any
greater extent under a Reconstitution Agreement than it is under this
Agreement. For purposes of this Section, “Purchaser” shall mean the
Person then acting as the Purchaser under this Agreement and any and all Persons
who previously were “Purchasers” under this Agreement.
All
Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain
subject to this Agreement and, if this Agreement shall remain in effect with
respect to the Mortgage Loans, shall continue to be serviced in accordance
with
the terms of this Agreement and
the
Purchase Agreement and with respect thereto this Agreement shall remain in
full
force and effect.
With
respect to any Securitization Transaction, the Servicer agrees that on or prior
to March 1st of
each year, the Servicer shall deliver to the Purchaser and the trustee for
such
Securitization Transaction, a certification substantially the form annexed
hereto as Exhibit 7, executed by the senior officer in charge of
servicing at the Servicer, for inclusion in the Annual Report on Form 10-K
to be
filed with the Securities and Exchange Commission with respect to the trust
formed for such Securitization Transaction. The Servicer shall
indemnify and hold harmless the Purchaser, the depositor for such Securitization
Transaction, the trustee for such Securitization Transaction and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon any breach of the Servicer’s obligations under this paragraph or the
Servicer’s negligence, bad faith or willful misconduct in connection
therewith. If the indemnification provided for herein is unavailable
or insufficient to hold harmless the indemnified party, then the Servicer agrees
that it shall contribute to the amount paid or payable by such depositor and/or
such trustee as a result of the losses, claims, damages or liabilities of such
depositor and/or such trustee in such proportion as is appropriate to reflect
the relative fault of such depositor or such trustee, as the case may be, on
the
one hand and the Servicer on the other in connection with a breach of the
Servicer’s obligations under this paragraph or the Servicer’s negligence, bad
faith or willful misconduct in connection therewith.
Section
12.14 Waiver of Trial by Jury.
THE
SERVICER AND THE PURCHASER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO
A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR
THE
TRANSACTIONS CONTEMPLATED HEREBY.
37
Section
12.15 Submission To Jurisdiction;
Waivers.
The
Servicer hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION
OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM
THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR
AT
SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER
JURISDICTION.
ARTICLE
XIII
COMPLIANCE
WITH REGULATION AB PROVISIONS
Section
13.01 Intent of the Parties;
Reasonableness.
The
Purchaser and the Servicer acknowledge and agree that the purpose of Article
XIII of this Agreement is to facilitate compliance by the Purchaser and any
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission. Although Regulation AB is applicable by its terms
only to offerings of asset-backed securities that are registered under the
Securities Act, the Servicer acknowledges that investors in privately offered
securities may require that the Purchaser or any Depositor provide comparable
disclosure in unregistered offerings. References in this Agreement to
compliance with Regulation AB include provision of comparable disclosure in
private offerings.
38
Neither
the Purchaser nor any Depositor shall exercise its right to request delivery
of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Servicer acknowledges that interpretations
of the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the asset-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with requests made by the Purchaser or any
Depositor in good faith for delivery of information under these provisions
on
the basis of evolving interpretations of Regulation AB. In connection
with any Securitization Transaction, the Servicer shall cooperate fully with
the
Purchaser to deliver to the Purchaser (including any of its assignees or
designees) and any Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Purchaser or any Depositor to permit the Purchaser or such Depositor to
comply with the provisions of Regulation AB, together with such disclosures
relating to the Servicer any Subservicer and the Mortgage Loans, or the
servicing of the Mortgage Loans, reasonably
believed by the Purchaser or any Depositor to be necessary in order to effect
such compliance.
Section
13.02 Additional Representations and Warranties of the
Servicer.
(a) The
Servicer shall be deemed to represent to the Purchaser and to any Depositor,
as
of the date on which information is first provided to the Purchaser or any
Depositor under Section 13.03 that, except as disclosed in writing to the
Purchaser or such Depositor prior to such date: (i) the Servicer
is not aware and has not received notice that any default, early amortization
or
other performance triggering event has occurred as to any other securitization
due to any act or failure to act of the Servicer ; (ii) the Servicer has
not been terminated as servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a servicing performance
test or trigger; (iii) no material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer has been disclosed or reported by the Servicer
;
(iv) no material changes to the Servicer ’s policies or procedures with
respect to the servicing function it will perform under this Agreement and
any
Reconstitution Agreement for mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
related Securitization Transaction; (v) there are no aspects of the
Servicer ’s financial condition that could have a material adverse effect on the
performance by the Servicer of its servicing obligations under this Agreement
or
any Reconstitution Agreement; (vi) there are no material legal or
governmental proceedings pending (or known to be contemplated) against the
Servicer or any Subservicer; and (vii) there are no affiliations,
relationships or transactions relating to the Servicer or any Subservicer with
respect to any Securitization Transaction and any party thereto identified
by
the related Depositor of a type described in Item 1119 of Regulation
AB.
(b) If
so requested by the Purchaser or any Depositor on any date following the date
on
which information is first provided to the Purchaser or any Depositor under
Section 13.03, the Servicer shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if
39
any
such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
Section
13.03 Information to Be Provided by the Servicer
.
In
connection with any Securitization Transaction the Servicer shall
(i) within five Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or cause each
Subservicer to provide), in writing and in form and substance reasonably
satisfactory to the Purchaser and such Depositor, the information and materials
specified in paragraphs (a), (c) and (f) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the Servicer ,
provide to the Purchaser and any Depositor (in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor) the information
specified in paragraph (d) of this Section.
(a) If
so requested by the Purchaser or any Depositor, the Servicer shall provide
such
information regarding each Subservicer, as is requested for the purpose of
compliance
with Items 1103(a)(1), 1117 and 1119 of Regulation AB. Such
information shall include, at a minimum:
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(A)
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[Reserved];
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(B)
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[Reserved];
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(C)
|
a
description of any material legal or governmental proceedings pending
(or
known to be contemplated) against the Servicer and each Subservicer;
and
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(D)
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a
description of any affiliation or relationship between the Servicer
, each
Subservicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer by the
Purchaser or any Depositor in writing in advance of such Securitization
Transaction:
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(1) the
sponsor;
(2) the
depositor;
(3) the
issuing entity;
(4) any
servicer;
(5) any
trustee;
(6) any
originator;
(7) any
significant obligor;
(8) any
enhancement or support provider; and
(9) any
other material transaction party.
(b) [Reserved].
(c) If
so requested by the Purchaser or any Depositor, the Servicer shall provide
such
information regarding the Servicer , as servicer of the Mortgage Loans, and
each
Subservicer (each of the Servicer and each Subservicer, for purposes of this
paragraph, a
40
“Servicer”),
as is requested for the purpose
of compliance with Item 1108 of Regulation AB. Such information shall
include, at a minimum:
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(A)
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the
Servicer’s form of organization;
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(B)
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a
description of how long the Servicer has been servicing residential
mortgage loans; a general discussion of the Servicer’s experience in
servicing assets of any type as well as a more detailed discussion
of the
Servicer’s experience in, and procedures for, the servicing function it
will perform under this Agreement and any Reconstitution Agreements;
information regarding the size, composition and growth of the Servicer’s
portfolio of residential mortgage loans of a type similar to the
Mortgage
Loans and information on factors related to the Servicer that may
be
material, in the good faith judgment of the Purchaser or any Depositor,
to
any analysis of the servicing of the Mortgage Loans or the related
asset-backed securities, as applicable, including, without
limitation:
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(1)
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whether
any prior securitizations of mortgage loans of a type similar to
the
Mortgage Loans involving the Servicer have defaulted or experienced
an
early amortization or other performance triggering event because
of
servicing during the three-year period immediately preceding the
related
Securitization Transaction;
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(2) the
extent of outsourcing the Servicer utilizes;
(3) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the related Securitization Transaction;
(4) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such
other information as the Purchaser or any Depositor may reasonably request
for
the purpose of compliance with Item 1108(b)(2) of Regulation AB;
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(C)
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a
description of any material changes during the three-year period
immediately preceding the related Securitization Transaction to the
Servicer’s policies or procedures with respect to the servicing function
it will perform under this Agreement and any Reconstitution Agreements
for
mortgage loans of a type similar to the Mortgage
Loans;
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(D)
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information
regarding the Servicer’s financial condition, to the extent that there is
a material risk that an adverse financial event or circumstance involving
the Servicer could have a material adverse effect on
the
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41
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performance
by the Servicer of its servicing obligations under this Agreement
or any
Reconstitution Agreement;
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(E)
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information
regarding advances made by the Servicer on the Mortgage Loans and
the
Servicer’s overall servicing portfolio of residential mortgage loans for
the three-year period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an authorized
officer
of the Servicer to the effect that the Servicer has made all advances
required to be made on residential mortgage loans serviced by it
during
such period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as required,
and
the reasons for such failure to
advance;
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(F)
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a
description of the Servicer’s processes and procedures designed to address
any special or unique factors involved in servicing loans of a similar
type as the Mortgage Loans;
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(G)
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a
description of the Servicer’s processes for handling delinquencies,
losses, bankruptcies and recoveries, such as through liquidation
of
mortgaged properties, sale of defaulted mortgage loans or workouts;
and
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(H)
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information
as to how the Servicer defines or determines delinquencies and
charge-offs, including the effect of any grace period, re-aging,
restructuring, partial payments considered current or other practices
with
respect to delinquency and loss
experience.
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(d) If
so requested by the Purchaser or any Depositor for the purpose of satisfying
its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, the Servicer shall (or shall cause each Subservicer
to)
(i) notify the Purchaser and any Depositor in writing of (A) any
material litigation or governmental proceedings pending against the Servicer
or
any Subservicer and (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Servicer
or any Subservicer and any of the parties specified in clause (D) of
paragraph (a) of this Section (and any other parties identified in writing
by the requesting party) with respect to such Securitization Transaction, and
(ii) provide to the Purchaser and any Depositor a description of such
proceedings, affiliations or relationships.
(e) As
a condition to the succession to the Servicer or any SubServicer or subservicer
under this Agreement or any Reconstitution Agreement by any Person (i) into
which the Servicer or such Subservicer may be merged or consolidated, or
(ii) which may be appointed as a successor to the Servicer or any
Subservicer, the Servicer shall provide to the Purchaser and any Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Purchaser and any Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Purchaser and such Depositor, all information
reasonably requested by the Purchaser or any Depositor in order to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to any class
of asset-backed securities.
42
(f) In
addition to such information as the Servicer , as servicer, is obligated
to
provide pursuant to other provisions of this Agreement, if so requested by
the
Purchaser or any Depositor, the Servicer shall provide such information
regarding the performance or servicing of the Mortgage Loans as is reasonably
required by the Purchaser or any Depositor to facilitate preparation of
distribution reports in accordance with Item 1121 of Regulation AB and to
permit
the Purchaser or such Depositor to comply with the provisions of Regulation
AB
relating to Static Pool Information regarding the performance of the Mortgage
Loans on the basis of the Purchaser's or such Depositor's reasonable, good
faith
interpretation of the requirements of Item 1105(a)(1)-(3) of Regulation AB
(including without limitation as to the format and content of such Static
Pool
Information) in connection with any future securitization by the Purchaser
or
any Depositor of mortgage loans of a similar type as the Mortgage
Loans. Such information shall be provided concurrently with the
monthly reports otherwise required to be delivered by the Servicer under
this
Agreement commencing with the first such report due in connection with the
applicable Securitization Transaction).
Section
13.04 Servicer Compliance Statement.
On
or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Purchaser and any Depositor a statement of compliance addressed
to the Purchaser and such Depositor and signed by an authorized officer of
the
Servicer , to the effect that (i) a review of the Servicer ’s activities
during the immediately preceding calendar year (or applicable portion thereof)
and of its performance under this Agreement and any applicable Reconstitution
Agreement during such period has been made under such officer’s supervision, and
(ii) to the best of such officers’ knowledge, based on such review, the
Servicer has fulfilled all of its obligations under this Agreement and any
applicable Reconstitution Agreement in all material respects throughout such
calendar year (or applicable portion thereof) or, if there has been a failure
to
fulfill any such obligation in any material respect, specifically identifying
each such failure known to such officer and the nature and the status
thereof.
Section
13.05 Report on Assessment of Compliance and
Attestation.
(a) On
or before March 1 of each calendar year, commencing in 2007, the Servicer
shall:
(i) deliver
to the Purchaser and any Depositor a report (in form and substance reasonably
satisfactory to the Purchaser and such Depositor) regarding the Servicer’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be
addressed to the Purchaser and such Depositor and signed by an authorized
officer of the Servicer, and shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit 8 hereto
delivered to the Purchaser concurrently with the execution of this
Agreement;
(ii) deliver
to the Purchaser and any Depositor a report of a registered public accounting
firm reasonably acceptable to the Purchaser and such Depositor that attests
to,
and reports on, the assessment of compliance made by the Servicer and
delivered
43
pursuant
to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and
the Exchange Act;
(iii) cause
each Subservicer, and each Subcontractor determined by the Company pursuant
to
Section 13.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Purchaser and any
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (a) and (b) of this Section; and
(iv) deliver
to the Purchaser, any Depositor and any other Person that will be responsible
for signing the certification (a “Sarbanes Certification”) required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002) on behalf of an asset-backed
issuer with respect to a Securitization Transaction a certification in the
form
attached hereto as Exhibit 7.
The
Servicer acknowledges that the parties identified in clause (a)(iv) above may
rely on the certification provided by the Servicer pursuant to such clause
in
signing a Sarbanes Certification and filing such with the
Commission. Neither the Purchaser nor any Depositor will request
delivery of a certification under clause (a)(iv) above unless a Depositor is
required under the Exchange Act to file an annual report on Form 10-K with
respect to an issuing entity whose asset pool includes Mortgage
Loans.
(b) Each
assessment of compliance provided by a Subservicer pursuant to
Section 13.05(a)(i) shall address each of the Servicing Criteria specified
on a certification substantially in the form of Exhibit 7 hereto delivered
to the Purchaser concurrently with the execution of this Agreement or, in the
case of a Subservicer subsequently appointed as such, on or prior to the date
of
such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section 13.05(a)(iii) need not address any
elements of the Servicing Criteria other than those specified by the Servicer
pursuant to Section 13.06.
Section
13.06 Use of Subservicers and
Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Subservicer
to
fulfill any of the obligations of the Servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (a) of this Section. The Servicer shall not hire or
otherwise utilize the services of any Subcontractor, and shall not permit any
Subservicer to hire or otherwise utilize the services of any Subcontractor,
to
fulfill any of the obligations of the Servicer under this Agreement or any
Reconstitution Agreement unless the Servicer complies with the provisions of
paragraph (b) of this Section.
(a) The
Servicer shall not hire or otherwise utilize the services of any Subservicer
with respect to the Mortgage Loans without giving the Purchaser or its designee
fifteen (15) calendar days’ advance written notice of the effective date of such
hiring or utilization of a Subservicer, followed by written confirmation of
such
hiring or utilization of a Subservicer on the effective date of such engagement
and indicating the circumstances surrounding such hiring or
utilization. Any notices required by this Section 13.06(a) shall be
sent via telecopier or certified or registered mail to the addresses set forth
below: ▇▇▇▇ ▇.
44
▇▇▇▇▇▇▇▇,
Servicer Oversight Group, ▇▇▇▇ ▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ and emailed to:
▇▇▇▇▇_▇▇▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Telecopy:
▇▇▇-▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or such other address as such
Person may otherwise specify to Servicer). The Servicer shall
cause any Subservicer used by the Servicer (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the provisions of
this
Section and with Sections 13.02, 13.03(c) and (e), 13.04, 13.05 and 13.07 of
this Agreement to the same extent as if such Subservicer were the Servicer
, and
to provide the information required with respect to such Subservicer under
Section 13.03(d) of this Agreement. The Servicer shall be responsible
for obtaining from each Subservicer and delivering to the Purchaser and any
Depositor any servicer compliance statement required to be delivered by such
Subservicer under Section 13.04, any assessment of compliance and attestation
required to be delivered by such Subservicer under Section 13.05 and any
certification required to
be
delivered to the Person that will be responsible for signing the Sarbanes
Certification under Section 13.05 as and when required to be
delivered.
(b) It
shall not be necessary for the Servicer to seek the consent of the Purchaser
or
any Depositor to the utilization of any Subcontractor. The Servicer
shall promptly upon request provide to the Purchaser and any Depositor (or
any
designee of the Depositor, such as a master servicer or administrator) a written
description (in form and substance satisfactory to the Purchaser and such
Depositor) of the role and function of each Subcontractor utilized by the
Servicer or any Subservicer, specifying (i) the identity of each such
Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (ii) of this paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Sections 13.05 and 13.07 of this
Agreement to the same extent as if such Subcontractor were the Servicer
. The Servicer shall be responsible for obtaining from each
Subcontractor and delivering to the Purchaser and any Depositor any assessment
of compliance and attestation required to be delivered by such Subcontractor
under Section 13.05, in each case as and when required to be
delivered.
Section
13.07 Indemnification; Remedies.
(a) The
Servicer shall indemnify the Purchaser, each affiliate of the Purchaser, and
each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person responsible
for the preparation, execution or filing of any report required to be filed
with
the Commission with respect to such Securitization Transaction, or for execution
of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the
Exchange Act with respect to such Securitization Transaction; each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such parties or the Depositor (within the meaning of
Section 15 of the Securities Act and ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇
▇▇
▇▇▇▇▇▇▇▇
▇▇▇); and the respective present and former directors, officers, employees
and
agents of each of the foregoing and of the Depositor, and shall hold each of
them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any
other
costs, fees and expenses that any of them may sustain arising out of or based
upon:
(i) (A) any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Article XIII by or on behalf
of the Servicer , or provided under this Article XIII by or on behalf of any
Subservicer or Subcontractor (collectively, the “Servicer Information”),
or (B) the omission or alleged omission to state in the Servicer
Information a material fact required to be stated in the Servicer
Information or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
by
way of clarification, that clause (B) of this paragraph shall be construed
solely by reference to the Servicer Information and not to any other information
communicated in connection with a sale or purchase of securities, without regard
to whether the Servicer Information or any portion thereof is presented together
with or separately from such other information;
(ii) any
failure by the Servicer , any Subservicer or any Subcontractor to deliver any
information, report, certification, accountants’ letter or other material when
and as required under this Article XIII, including any failure by the Servicer
to identify pursuant to Section 13.06(b) any Subcontractor “participating
in the servicing function” within the meaning of Item 1122 of Regulation AB;
or
(iii) any
breach by the Servicer of a representation or warranty set forth in
Section 13.02(a) or in a writing furnished pursuant to
Section 13.02(b) and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not cured
by such closing date, or any breach by the Servicer of a representation or
warranty in a writing furnished pursuant to Section 13.02(b) to the extent
made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause (a)(ii) of this Section,
the Servicer shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to
Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such
party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Servicer, any Subservicer
or
any Subcontractor.
(b) (i) Any
failure by the Seller, Servicer, any Subservicer or any Subcontractor to deliver
any information, report, certification, accountants’ letter or other material
when and as required under this Article XIII or under Section 34 of the
Purchase Agreement, or any breach by the Servicer of a representation or
warranty set forth in Section 13.02(a) or in a writing furnished pursuant
to Section 13.02(b) or any breach by the
46
Seller
of
a representation or warranty set forth in Section 34.02(a) of the Purchase
Agreement or in a writing furnished pursuant to Section 34.02(b) of the
Purchase Agreement and made as of a date prior to the closing date of the
related Securitization Transaction, to the extent that such breach is not cured
by such closing date, or any breach by the Servicer of a representation or
warranty in a writing furnished pursuant to Section 13.02(b) or any breach
by the Seller of a representation or warranty in a writing furnished pursuant
to
Section 34.02(b) of the Purchase Agreement to the extent made as of a date
subsequent to such closing date, shall, except as provided in clause (ii) of
this paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this Agreement
and any applicable Reconstitution Agreement, and shall entitle the Purchaser
or
Depositor, as applicable, in its sole discretion to terminate the rights and
obligations of the Servicer under this Agreement and/or
any applicable Reconstitution Agreement without payment (notwithstanding
anything in this Agreement or any applicable Reconstitution Agreement to the
contrary) of any compensation to the Servicer ; provided that to the extent
that
any provision of this Agreement and/or any applicable Reconstitution Agreement
expressly provides for the survival of certain rights or obligations following
termination of the Servicer as servicer, such provision shall be given
effect.
(ii) Any
failure by the Servicer , any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section 13.04 or 13.05, including (except as provided below) any
failure by the Servicer to identify pursuant to Section 13.06(b) any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Servicer under this Agreement and any applicable Reconstitution
Agreement, and shall entitle the Purchaser or Depositor, as applicable, in
its
sole discretion to terminate the rights and obligations of the Servicer under
this Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any compensation
to the Servicer ; provided that to the extent that any provision of this
Agreement and/or any applicable Reconstitution Agreement expressly provides
for
the survival of certain rights or obligations following termination of the
Servicer as servicer, such provision shall be given effect.
Neither
the Purchaser nor any
Depositor shall be entitled to terminate the rights and obligations of the
Company pursuant to this subparagraph (b)(ii) if a failure of the Company to
identify a Subcontractor “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB was attributable solely to the role or
functions of such Subcontractor with respect to mortgage loans other than the
Mortgage Loans.
(iii) The
Servicer shall promptly reimburse the Purchaser (or any designee of the
Purchaser, such as a master servicer) and any Depositor, as applicable, for
all
reasonable expenses incurred by the Purchaser (or such designee) or such
Depositor, as such are incurred, in connection with the termination of the
Servicer and the transfer of servicing of the Mortgage Loans to a successor
servicer. The provisions of this
47
paragraph
shall not limit whatever rights the Purchaser or any Depositor may have under
other provisions of this Agreement and/or any applicable Reconstitution
Agreement or otherwise, whether in equity or at law, such as an action for
damages, specific performance or injunctive relief.
[Signature
Page Follows]
48
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal as of
the
date and year first above written.
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
|
|
|
(the
Purchaser)
|
By:
_______________________________
Name:
Title:
|
|
INDYMAC
BANK, F.S.B.
|
|
|
(the
Servicer)
|
By:
_______________________________
Name:
Title:
EXHIBIT
1
REMITTANCE
REPORT
Exh.
1-1
EXHIBIT
2
CUSTODIAL
ACCOUNT CERTIFICATION
_______
__, 200_
The
Servicer hereby certifies that it has established the account described below
as
a Custodial Account pursuant to Section 2.04 of the Servicing Agreement, dated
as of September 1, 2006, Conventional Fixed Rate Mortgage Loans.
|
Title
of Account:
|
“IndyMac
Bank, F.S.B. in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., owner
of
Conventional Fixed Rate Residential Mortgage Loans, and various
Mortgagors.”
|
Account
Number: ________________________
Address
of office or branch
of
the
Servicer at
which
Account is
maintained: ______________________________
|
|
INDYMAC
BANK, F.S.B.,
|
Servicer
By:___________________________
Name:_________________________
Title:________________________
Date:_________________________
Exh.
2-1
EXHIBIT
3
CUSTODIAL
ACCOUNT LETTER AGREEMENT
_______
__, 200_
|
To:
|
___________________________
|
|
|
___________________________
|
___________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of September 1, 2006, (the
“Agreement”), we hereby authorize and request you to establish an
account, as a Custodial Account pursuant to Section 2.04 of the Agreement,
to be
designated “IndyMac Bank, F.S.B. in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc., owner of Residential Mortgage Loans, and various
Mortgagors.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
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|
INDYMAC
BANK, F.S.B.,
|
|
|
Servicer
|
|
|
By:___________________________
|
|
|
Name:_________________________
|
|
|
Title:________________________
|
|
|
Date:_________________________
|
Exh.
3-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number __________, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund (“BIF”) or the Savings Association Insurance Fund
(“SAIF”).
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|
______________________________
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|
|
Depository
|
|
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By:___________________________
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|
Name:_________________________
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|
|
Title:________________________
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|
Date:_________________________
|
Exh.
3-2
EXHIBIT
4
ESCROW
ACCOUNT CERTIFICATION
_________
___, 200_
________________________
hereby certifies that it has established the account described below as an
Escrow Account pursuant to Section 2.06 of the Servicing Agreement, dated as
of
September 1, 2006, Residential Mortgage Loans.
|
Title
of Account:
|
“IndyMac
Bank, F.S.B., as servicer, in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Inc., owner of Residential Mortgage Loans, and various
Mortgagors.”
|
|
Account
Number:
|
___________________
|
Address
of office or branch
of
the
Servicer at
which
Account is
maintained: _________________________
_________________________
_________________________
_________________________
|
|
INDYMAC
BANK, F.S.B.,
|
|
|
Servicer
|
By:
____________________________________
Name: ___________________________________
Title: ____________________________________
Exh.
4-1
EXHIBIT
5
ESCROW
ACCOUNT LETTER AGREEMENT
_______
___, 200_
To: _____________________________
_____________________________
_____________________________
(the
“Depository”)
As
Servicer under the Servicing Agreement, dated as of September 1, 2006,
Conventional Fixed Rate Residential Mortgage Loans (the “Agreement”), we
hereby authorize and request you to establish an account, as an Escrow Account
pursuant to Section 2.06 of the Agreement, to be designated as “IndyMac Bank,
F.S.B., as servicer, in trust for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., owner
of
Conventional Fixed Rate Residential Mortgage Loans, and various
Mortgagors.” All deposits in the account shall be subject to
withdrawal therefrom by order signed by the Servicer. You may refuse
any deposit which would result in violation of the requirement that the account
be fully insured as described below. This letter is submitted to you
in duplicate. Please execute and return one original to
us.
|
|
INDYMAC
BANK, F.S.B.,
|
|
|
Servicer
|
By: ____________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________
Exh.
5-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above. The full amount deposited at any time in the account
will be insured by the Federal Deposit Insurance Corporation through the Bank
Insurance Fund (“BIF”) or the Savings Association Insurance Fund
(“SAIF”).
|
|
_________________________
|
|
|
Depository
|
By: ____________________________________
Name: ___________________________________
Title: ____________________________________
Date: ____________________________________
Exh.
5-2
EXHIBIT
6
DELINQUENCY
COLLECTION POLICIES AND PROCEDURES
Exh.
6-1
EXHIBIT
7
CERTIFICATION
|
|
Re:
|
The
[ ] agreement dated as of [ ], 200[ ] (the
“Agreement”), among [IDENTIFY
PARTIES]
|
I,
________________________________, the _______________________ of [NAME OF
COMPANY] (the “Company”), certify to [the Purchaser], [the Depositor], and the
[Master Servicer] [Securities Administrator] [Trustee], and their officers,
with
the knowledge and intent that they will rely upon this certification,
that:
First,
I have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),
the report on assessment of the Company’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and Item 1122 of Regulation
AB (the “Servicing Assessment”), the registered public accounting firm’s
attestation report provided in accordance with Rules 13a-18 and 15d-18 under
the
Exchange Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Company Servicing Information”);
Second,
Based on my knowledge, the Company Servicing Information, taken as a whole,
does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in the light of the circumstances
under which such statements were made, not misleading with respect to the period
of time covered by the Company Servicing Information;
Third,
Based on my knowledge, all of the Company Servicing Information required to
be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer] [Securities Administrator] [Trustee];
Fourth,
I am responsible for reviewing the activities performed by the Company as
servicer under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Compliance Statement, the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement, in all material
respects; and
Fifth,
The Compliance Statement required to be delivered by the Company pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant to
the
Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material
Exh.
7-1
instances
of noncompliance described in such reports have been disclosed to the
[Depositor] [Master Servicer]. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date: _________________________
_______________________________
[Signature]
[Title]
▇▇▇.
▇-▇
▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [IndyMac Bank, F.S.B] [Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
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|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
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|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
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|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
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|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
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|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
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|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
▇▇▇.
▇-▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
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|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
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|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff
date, or such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the
person who prepared the reconciliation; and (D) contain explanations
for reconciling items. These reconciling items are resolved within
90
calendar days of their original identification, or such other number
of
days specified in the transaction agreements.
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the
terms specified in the transaction agreements; (C) are filed with the
Commission as required by its rules and regulations; and (D) agree
with investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
▇▇▇.
▇-▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
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|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
▇▇▇.
▇-▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such funds are analyzed, in accordance with the obligor’s
mortgage loan documents, on at least an annual basis, or such
other period
specified in the transaction agreements; (B) interest on such funds
is paid, or credited, to obligors in accordance with applicable
mortgage
loan documents and state laws; and (C) such funds are returned to the
obligor within 30 calendar days of full repayment of the related
mortgage
loans, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
▇▇▇.
▇-▇
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business
days to the
obligor’s records maintained by the servicer, or such other number
of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as
set forth in
the transaction agreements.
|
|
|
[INDYMAC
BANK, F.S.B] [SUBSERVICER]
|
|
|
|
Date: |
Exh.
8-5