INDYMAC BANK, F.S.B., as Seller and GOLDMAN SACHS MORTGAGE COMPANY, as Purchaser SECOND AMENDED AND RESTATED MASTER MORTGAGE LOAN PURCHASE AGREEMENT dated as of March 1, 2006 Fixed and Adjustable Rate First and Second Lien Residential Mortgage Loans...
EXECUTION
COPY
INDYMAC
BANK, F.S.B.,
as
Seller
and
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Purchaser
________________________
SECOND
AMENDED AND RESTATED
dated
as
of March 1, 2006
Fixed
and
Adjustable Rate First and Second Lien Residential Mortgage Loans
(SERVICING
RETAINED)
TABLE
OF
CONTENTS
Page
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ARTICLE
I
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DEFINITIONS
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ARTICLE
II
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PRE-CLOSING
AND CLOSING PROCEDURES
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Section
2.01
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Books
and Records; Transfers of Mortgage Loans
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13
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Section
2.02
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Due
Diligence by the Purchaser
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13
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Section
2.03
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Identification
of Mortgage Loan Package
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14
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Section
2.04
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Credit
Document Deficiencies Identified During Due Diligence
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14
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Section
2.05
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Delivery
of Collateral Files
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14
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Section
2.06
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Purchase
Confirmation
|
16
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Section
2.07
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Closing
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16
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Section
2.08
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Payment
of the Purchase Proceeds
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16
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Section
2.09
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Entitlement
to Payments on the Mortgage Loans
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17
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Section
2.10
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Payment
of Costs and Expenses
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17
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Section
2.11
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MERS
Mortgage Loans and the MERS System
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17
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ARTICLE
III
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REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
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Section
3.01
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Representations
and Warranties Respecting Indymac
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18
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Section
3.02
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Representations
and Warranties Regarding Individual Mortgage Loans
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20
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Section
3.03
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Remedies
for Breach of Representations and Warranties
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31
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Section
3.04
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Accrual
of Cause of Action
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33
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ARTICLE
IV
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ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
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Section
4.01
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Indymac
to Act as Servicer
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33
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ARTICLE
V
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COVENANTS
BY INDYMAC
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Section
5.01
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Indemnification
by Indymac
|
33
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Section
5.02
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[Reserved]
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33
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Section
5.03
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Merger
or Consolidation of Indymac
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34
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-1-
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Section
5.04
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Limitation
on Liability of Indymac and Others
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34
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Section
5.05
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No
Transfer of Servicing
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34
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ARTICLE
VI
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MISCELLANEOUS
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Section
6.01
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Notices
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34
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Section
6.02
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Sale
Treatment
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34
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Section
6.03
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Exhibits
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34
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Section
6.04
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General
Interpretive Principles
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34
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Section
6.05
|
Reproduction
of Documents
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34
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Section
6.06
|
Further
Agreements
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34
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Section
6.07
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Assignment
of Mortgage Loans by the Purchaser; Securitization
Transactions
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34
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Section
6.08
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Conflicts
between Transaction Documents
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34
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Section
6.09
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Governing
Law
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34
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Section
6.10
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Severability
Clause
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34
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Section
6.11
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Successors
and Assigns
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34
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Section
6.12
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Relationship
of Parties
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34
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Section
6.13
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Solicitation
of Mortgagor
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34
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Section
6.14
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Confidentiality
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34
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Section
6.15
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Entire
Agreement
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34
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ARTICLE
VII
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COMPLIANCE
WITH REGULATION AB
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Section
7.01
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Intent
of the Parties; Reasonableness
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34
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Section
7.02
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Additional
Representations and Warranties of Indymac
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34
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Section
7.03
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Information
to Be Provided by Indymac
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34
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Section
7.04
|
Indemnification;
Remedies
|
34
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EXHIBITS
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Exhibit
A
|
Schedule
of Collateral Documents
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A-1
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Exhibit
B
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Form
of Purchase Confirmation
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▇-▇
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▇▇▇▇▇▇▇
▇
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▇▇▇▇▇▇▇▇
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▇-▇
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▇▇▇▇▇▇▇
▇
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Form
of Trade Confirmation
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D-1
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Exhibit
E
|
Mortgage
File
|
E-1
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-2-
This
Second Amended and Restated Master Mortgage Loan Purchase Agreement, dated
as of
March 1, 2006 (the “Agreement”),
between IndyMac Bank, F.S.B. having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“Indymac”),
and
▇▇▇▇▇▇▇ Sachs Mortgage Company, having an address At ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the “Purchaser”).
R
E C I T
A L S
The
Purchaser and Indymac are parties to that certain Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005, as amended
(the
“Original
Purchase Agreement”),
pursuant to which, from time to time, the Purchaser has agreed to purchase
from
Indymac, and, from time to time, Indymac has agreed to sell to the Purchaser
all
of Indymac’s right, title and interest, excluding servicing rights, in and to
those certain mortgage loans identified in a Purchase Confirmation (as defined
below) executed by Indymac and the Purchaser.
At
the
present time, the Purchaser and Indymac desire to amend the Original Purchase
Agreement to make certain modifications as set forth herein with respect to
all
Mortgage Loans acquired pursuant to this Agreement or the Original Purchase
Agreement.
In
consideration of the promises and mutual agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, Indymac and the Purchaser agree as follows:
ARTICLE
I
DEFINITIONS
Unless
the context requires otherwise, all capitalized terms used herein shall have
the
meanings assigned to such terms in this Article I unless defined elsewhere
herein. Any capitalized term used or defined in a Purchase Confirmation that
conflicts with the corresponding definition set forth herein shall supersede
such term.
Adjustable
Rate Mortgage Loan:
Any
Mortgage Loan in which the related Mortgage Note contains a provision whereby
the Mortgage Interest Rate is adjusted from time to time in accordance with
the
terms of such Mortgage Note.
Agency:
Either
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Agreement:
This
Master Mortgage Loan Purchase Agreement, including all exhibits and supplements
hereto, and all amendments hereof.
Applicable
Law:
All
provisions of statutes, rules and regulations, interpretations and orders of
governmental bodies or regulatory agencies applicable to a Person, and all
orders and decrees of all courts and arbitrators in proceedings or actions
in
which the Person in question is a party.
Appraised
Value:
The
value of the related Mortgaged Property as set forth in an appraisal made in
connection with the origination of a Mortgage Loan or the sale price of the
related Mortgaged Property if the proceeds of such Mortgage Loan were used
to
purchase such Mortgaged Property, whichever is less; provided,
however,
that in
the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinanced Mortgage Loan at the time of origination of such Refinanced
Mortgage Loan.
Assignment
of Mortgage:
An
assignment of the Mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect the sale of the Mortgage to
the
Purchaser.
Balloon
Mortgage Loan:
Any
Mortgage Loan wherein the Mortgage Note matures prior to full amortization
and
requires a final and accelerated payment of principal.
Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking
and savings and loan institutions in either the State of California or the
State
of New York are authorized or obligated by law or executive order to be
closed.
Closing:
The
consummation of the sale and purchase of each Mortgage Loan
Package.
Closing
Date:
The
date on which the purchase and sale of the Mortgage Loans constituting a
Mortgage Loan Package is consummated, as set forth in the Trade Confirmation
or
Purchase Confirmation.
Code:
The
Internal Revenue Code of 1986, as it may be amended from time to time or any
successor statute thereto, and applicable U.S. Department of the Treasury
regulations issued pursuant thereto.
Collateral
Documents:
The
collateral documents pertaining to each Mortgage Loan as set forth in Exhibit
A
hereto.
Collateral
File:
With
respect to each Mortgage Loan, a file containing each of the Collateral
Documents.
Combined
Loan to Value Ratio:
As of
any date and as to any Mortgage Loan, the ratio, expressed as a percentage,
of
the (a) sum of (i) the Stated Principal Balance (or the original
principal balance, if so indicated) of such Mortgage Loan and (ii) the
Stated Principal Balance (or the original principal balance, if so
indicated) as of such date of any mortgage loan or mortgage loans that are
senior or equal in priority to the Mortgage Loan and which are secured by the
same Mortgaged Property to (b) the Appraised Value of the related Mortgaged
Property.
Commission:
The
United States Securities and Exchange Commission.
-2-
Condemnation
Proceeds:
All
awards or settlements in respect of a taking of an entire Mortgaged Property
by
exercise of the power of eminent domain or condemnation.
Cooperative
Corporation:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the
Code.
Cooperative
Loan:
Any
Mortgage Loan secured by Coop Shares and a Proprietary Lease.
Cooperative
Property:
The
real property and improvements owned by the Cooperative Corporation, including
the allocation of individual dwelling units to the holders of the Coop Shares
of
the Cooperative Corporation.
Coop
Shares:
Shares
issued by a Cooperative Corporation.
Cooperative
Unit:
A
single family dwelling located in a Cooperative Property.
Covered
Loan:
A
Mortgage Loan categorized as Covered pursuant to Appendix E of Standard &
Poor’s Glossary.
Credit
File:
The
file retained by Indymac that includes the mortgage loan documents pertaining
to
a Mortgage Loan including copies of the Collateral Documents together with
the
credit documentation relating to the origination of such Mortgage Loan, which
Credit File may be maintained by Indymac on microfilm or any other comparable
medium.
Custodial
Account:
The
account or accounts created and maintained pursuant to Section 4.4 of the
Servicing Agreement, each of which shall be an Eligible Account.
Custodial
Agreement:
The
agreement, that governs the temporary retention of the Collateral Files by
the
Custodian with respect to a Closing Date.
Custodian:
Deutsche Bank Trust Company Americas, its successor in interest or assign,
or
such other custodian that may be designated by the Purchaser from time to
time.
Cut-off
Date:
The
first day of the month in which the related Closing Date occurs or such other
date as may be set forth in the related Trade Confirmation or Purchase
Confirmation.
Cut-off
Date Balance:
The
aggregate scheduled unpaid principal balance of the Mortgage Loans in a Mortgage
Loan Package as of the Cut-off Date, after application of (i) scheduled
payments of principal due on such Mortgage Loans on or before such Cut-off
Date,
whether or not collected, and (ii) any Principal Prepayments received from
the Mortgagor prior to the Cut-off Date.
Deemed
Material Breach Representation:
Each
representation and warranty identified as such in Subsection
3.02.
-3-
Determination
Date:
The
Business Day immediately preceding the related Remittance Date.
Due
Date:
The
first day of the month on which the Monthly Payment is due on a Mortgage Loan,
exclusive of any days of grace.
Eligible
Account:
An
account or accounts (i) maintained with a federal or state chartered
depository institution the short term debt obligations of which are rated by
a
nationally recognized statistical rating agency in its highest rating categories
at the time of any deposit therein and (ii) the deposits of which are
insured up to the maximum permitted by the FDIC.
Escrow
Account:
The
separate account or accounts created and maintained pursuant to Section 4.6
of the Servicing Agreement, each of which shall be an Eligible
Account.
Escrow
Payments:
The
amounts constituting ground rents, taxes, assessments, water rates, mortgage
insurance premiums, fire and hazard insurance premiums, flood insurance
premiums, and other payments required to be escrowed by the Mortgagor with
the
Mortgagee pursuant to any Mortgage Loan.
Exchange
Act:
The
Securities Exchange Act of 1934, as amended.
Event
of Default:
Any one
of the conditions or circumstances enumerated in Section 7.1 of the
Servicing Agreement.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
▇▇▇▇▇▇
▇▇▇:
The
Federal National Mortgage Association or any successor
organization.
First
Lien Mortgage Loan:
Any
Mortgage Loan secured by a first lien on the related Mortgaged
Property.
Fixed
Rate Mortgage Loan:
Any
Mortgage Loan wherein the Mortgage Interest Rate set forth in the Mortgage
Note
is fixed for the term of such Mortgage Loan.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended
and in effect from time to time.
▇▇▇▇▇▇▇
Mac:
The
Federal Home Loan Mortgage Corporation or any successor
organization.
Funding
Deadline:
With
respect to each Closing Date, one o’clock (1:00) p.m. New York
time.
Gross
Margin:
With
respect to each Adjustable Rate Mortgage Loan, the fixed percentage amount
set
forth in the related Mortgage Note, which amount is added to the index in
accordance with the terms of the related Mortgage Note to determine on each
Interest Adjustment Date, the Mortgage Interest Rate for such Mortgage
Loan.
-4-
High
Cost Loan:
A
Mortgage Loan covered by the Home Ownership and Equity Protection Act of 1994,
(b) classified as a “high cost home,” “threshold,” “covered,” (excluding
New Jersey “Covered Home Loans” as that term was defined in clause (1) of
the definition of that term in the New Jersey Home Ownership Security Act of
2002 that were originated between November 26, 2003 and July 6, 2004), “high
risk home,” “predatory” or similar loan under any other applicable state,
federal or local law (or a similarly classified loan using different terminology
under a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates, points
and/or fees) or (c) a Mortgage Loan categorized as High Cost pursuant
to Appendix E of Standard & Poor’s Glossary. For avoidance of doubt, the
parties agree that this definition shall apply to any law regardless of whether
such law is presently, or in the future becomes, the subject of judicial review
or litigation.
Home
Loan:
A
Mortgage Loan categorized as Home Loan pursuant to Appendix E of Standard &
Poor’s Glossary.
HUD:
The
Department of Housing and Urban Development or any federal agency or official
thereof which may from time to time succeed to the functions
thereof.
Index: With
respect to any Adjustable Rate Mortgage Loan on each Interest Adjustment Date
the applicable index as set forth in the related Mortgage Note.
Indymac:
IndyMac
Bank, F.S.B., or any successor or assign to Indymac under this Agreement as
provided herein.
Indymac
Information:
As
defined in Section 6.07(c).
Interest
Adjustment Date:
With
respect to an Adjustable Rate Mortgage Loan, the date on which an adjustment
to
the Mortgage Interest Rate on a Mortgage Note becomes effective.
Lifetime
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the absolute maximum Mortgage
Interest Rate payable, above which the Mortgage Interest Rate shall not be
adjusted, as set forth in the related Mortgage Note and Mortgage Loan
Schedule.
Liquidation
Proceeds:
Amounts, other than PMI Proceeds, Condemnation Proceeds and Other Insurance
Proceeds, received by Indymac in connection with the liquidation of a defaulted
Mortgage Loan through trustee’s sale, foreclosure sale or otherwise, other than
amounts received following the acquisition of an REO Property pursuant to
Section 4.13.
LPMI
Fee:
The
portion of the Mortgage Interest Rate relating to an LPMI Loan, which is set
forth on the related Mortgage Loan Schedule, to be retained by Indymac to pay
the premium due on the PMI Policy with respect to such LPMI Loan.
LPMI
Loan:
Any
Mortgage Loan with respect to which Indymac is responsible for paying the
premium due on the related PMI Policy with the proceeds generated by the LPMI
Fee relating to such Mortgage Loan, as set forth on the related Mortgage Loan
Schedule.
-5-
LTV:
With
respect to any Mortgage Loan, the ratio (expressed as a percentage) of the
Stated Principal Balance (or the original principal balance, if so
indicated) of such Mortgage Loan as of the date of determination to the
Appraised Value of the related Mortgaged Property.
MERS:
Mortgage Electronic Registration Systems, Inc. or any successor or assign
thereto.
MERS
Mortgage Loan:
Any
Mortgage Loan registered with MERS on the MERS System.
MERS
System:
The
electronic system of recording transfers of mortgages maintained by
MERS.
MIC:
A
mortgage insurance certificate issued by HUD.
Missing
Credit Documents:
As
defined in Section 2.04 hereof.
Monthly
Payment:
The
scheduled monthly payment of principal and interest on a Mortgage
Loan.
Mortgage:
With
respect to a Mortgage Loan that is not a Cooperative Loan, the mortgage, deed
of
trust or other instrument securing a Mortgage Note, which creates a first or
second 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 or second lien, upon
a
leasehold estate of the Mortgagor. With respect to a Cooperative Loan, the
security 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 Cooperative Loan and the related Cooperative
Lease.
Mortgage
File:
With
respect to any Mortgage Loan, the items listed in Exhibit E hereto and any
additional documents required to be added to the Mortgage File pursuant to
this
Agreement.
Mortgage
Interest Rate:
The
annual rate at which interest accrues on any Mortgage Loan and, with respect
to
an Adjustable Rate Mortgage Loan, as adjusted from time to time in accordance
with the provisions of the related Mortgage Note.
Mortgage
Loan:
Any
mortgage loan that is sold pursuant to this Agreement, as evidenced by such
mortgage loan’s inclusion on the related Mortgage Loan Schedule, which mortgage
loan includes the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, PMI Proceeds (if applicable), Other Insurance Proceeds,
REO Disposition proceeds, and all other rights, benefits, proceeds and
obligations arising from or in connection with such Mortgage Loan, excluding
the
servicing rights relating thereto. Unless the context requires otherwise, any
reference to the Mortgage Loans in this Agreement shall refer to the Mortgage
Loans constituting a Mortgage Loan Package.
-6-
Mortgage
Loan Package:
The
Mortgage Loans sold to the Purchaser pursuant to a Purchase
Confirmation.
Mortgage
Loan Remittance Rate:
With
respect to each Mortgage Loan, the interest rate payable to the Purchaser on
each Remittance Date which shall equal the Mortgage Interest Rate less the
Servicing Fee and the LPMI Fee, if applicable.
Mortgage
Loan Schedule:
A
schedule of Mortgage Loans annexed hereto as Exhibit A, such schedule setting
forth the following information with respect to each Mortgage Loan: (1) the
Seller’s Mortgage Loan number; (2) the address, city, state and zip code of
the Mortgaged Property (or, in the case of each Co-op Loan, of the related
Cooperative Unit); (3) a code indicating whether the Mortgagor is
self-employed; (4) a code indicating whether the Mortgaged Property is
owner-occupied, investment property or a second home; (5) a code indicating
whether the Mortgaged Property is a single family residence, two-family
residence, three-family residence, four family residence, condominium,
manufactured housing, mixed-use property, raw land and other non-residential
properties, planned unit development or cooperative stock in a cooperative
housing corporation; (6) the purpose of the Mortgage Loan; (7) the
type of Mortgage Loan (i.e., fixed rate, first lien, second lien or adjustable
rate mortgage loan); (8) the Mortgage Interest Rate at origination;
(9) the current Mortgage Interest Rate; (10) whether the Mortgage Loan
has Monthly Payments that are interest only for a period of time; (11) the
Servicing Fee Rate; (12) the current Monthly Payment; (13) the
original term to maturity; (14) the remaining term to maturity;
(15) the principal balance of the Mortgage Loan as of the Cut-off Date
after deduction of payments of principal due on or before the Cut-off Date
whether or not collected; (16) the LTV and CLTV, each at origination and if
the First Lien Mortgage Loan has a second lien, the combined LTV at origination;
(17) the actual principal balance of the Mortgage Loan as of the Cut-off
Date; (18) social security number of the Mortgagor; (19) a code
indicating whether the Mortgage Loan has negative amortization and the maximum
amount of such negative amortization; (20) a code indicating whether the
Mortgage Loan had a second lien at origination; (21) if the Mortgage Loan
has a second lien, combined loan balance as of the Cut-off Date; (22) a
code indicating whether the Mortgaged Property is a leasehold estate;
(23) the due date of the Mortgage Loan; (24) whether the Mortgage Loan
is insured by a Primary Mortgage Insurance Policy and the name of the insurer;
(25) the certificate number of the Primary Mortgage Insurance Policy;
(26) the amount of coverage of the Primary Mortgage Insurance Policy;
(27) the type of appraisal; (28) a code indicating whether the
Mortgage Loan is a MERS Mortgage Loan; (29) a code indicating whether the
Mortgage Loan is subject to a prepay penalty and the terms of such prepayment
penalty; (30) documentation type (including asset and income type);
(31) first payment date; (32) the schedule of the payment
delinquencies in the prior 12 months and (33) FICO score. With respect to
any Adjustable Rate Mortgage: (a) the Gross Margin; (b) the Periodic
Rate Cap; (c) the Lifetime Rate Cap; (d) the first Interest Adjustment
Date cap and the Interest Adjustment Date frequency; (e) the minimum
Mortgage Interest Rate; (f) the first Interest Adjustment Date immediately
following the Cut-off Date; and (g) the Index, including the methodology
for rounding (e.g. rounded upward, if necessary, to the next nearest ten
thousandth (.0001)) and the applicable time frame for determining the
Index.
Mortgage
Note:
The
note or other evidence of the indebtedness of a Mortgagor secured by a
Mortgage.
-7-
Mortgaged
Property:
With
respect to a Mortgage Loan that is not a Cooperative Loan, the underlying real
property securing repayment of a Mortgage Note, consisting of a single parcel
of
real estate considered to be real estate under the laws of the State in which
such real property is located, which may include condominium units and planned
unit developments, improved by a residential dwelling; 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, a leasehold estate
of
the Mortgagor, the term of which is equal to or longer than the term of the
Mortgage. With respect to a Cooperative Loan, the stock allocated to a dwelling
unit in the residential cooperative housing corporation that was pledged to
secure such Cooperative Loan and the related Cooperative Lease.
Mortgagee:
The
mortgagee or beneficiary named in the Mortgage and the successors and assigns
of
such mortgagee or beneficiary.
Mortgagor:
The
obligor on a Mortgage Note and their successors in title to the Mortgaged
Property.
Opinion
of Counsel:
A
written opinion of counsel, who may be an employee of the party on behalf of
whom the opinion is being given, reasonably acceptable to the
Purchaser.
Other
Insurance Proceeds:
Proceeds of any title policy, hazard policy, pool policy or other insurance
policy covering a Mortgage Loan, other than the PMI Policy, if any, to the
extent such proceeds are not to be applied to the restoration of the related
Mortgaged Property or released to the Mortgagor in accordance with the
procedures that Indymac would follow in servicing mortgage loans held for its
own account.
Periodic
Rate Cap:
With
respect to each Adjustable Rate Mortgage Loan, the provision of each Mortgage
Note which provides for an absolute maximum amount by which the Mortgage
Interest Rate therein may increase or decrease on an Adjustment Date above
or
below the Mortgage Interest Rate previously in effect, equal to the rate set
forth on the Mortgage Loan Schedule per adjustment.
Person:
Any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, limited liability corporation, unincorporated organization
or
government or any agency or political subdivision thereof.
PMI
Policy:
A
policy of private mortgage guaranty insurance relating to a Mortgage Loan and
issued by a Qualified Insurer.
PMI
Proceeds:
Proceeds of any PMI Policy.
Preliminary
Mortgage Loan Package:
The
mortgage loans identified or described in a Trade Confirmation, which, subject
to the Purchaser’s due diligence as contemplated in Section 2.02, are
intended to be sold under this Agreement as a Mortgage Loan
Package.
Preliminary
Mortgage Loans:
The
mortgage loans constituting a Preliminary Mortgage Loan
Package.
-8-
Principal
Prepayment:
Any
payment or other recovery of principal on a Mortgage Loan which is received
in
advance of its scheduled Due Date, excluding any prepayment penalty or premium
thereon (unless the Purchase Confirmation provides otherwise), 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.
Proprietary
Lease:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Coop Shares.
Purchase
Confirmation:
A
letter agreement, substantially in the form of Exhibit B hereto, executed by
Indymac and the Purchaser in connection with the purchase and sale of each
Mortgage Loan Package, which sets forth the terms relating thereto including
a
description of the related Mortgage Loans (including the Mortgage Loan
Schedule), the purchase price for such Mortgage Loans, the Closing Date and
the
Servicing Fee Rate.
Purchase
Proceeds:
The
amount paid on the related Closing Date by the Purchaser to Indymac in exchange
for the Mortgage Loan Package purchased on such Closing Date as set forth in
the
applicable Purchase Confirmation.
Purchaser:
The
Person identified as the “Purchaser” in the preamble to this Agreement or its
successor in interest or any successor or assign to the Purchaser under this
Agreement as herein provided. Any reference to “Purchaser” as used herein shall
be deemed to include any designee of the Purchaser, so long as such designation
was made in accordance with the limitations set forth in
Section 6.07.
Qualified
Correspondent:
Any
Person from which the Seller purchased Mortgage Loans, provided
that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Seller and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Seller, in accordance with underwriting guidelines designated by the Seller
(“Designated
Guidelines”) or
guidelines that do not vary materially from such Designated Guidelines;
(ii) such Mortgage Loans were in fact underwritten as described in clause
(i) above and were acquired by the Seller within one hundred eighty (180)
days after origination; (iii) either (x) the Designated Guidelines
were, at the time such Mortgage Loans were originated, used by the Seller in
origination of mortgage loans of the same type as the Mortgage Loans for the
Seller’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by the Seller on a consistent
basis for use by lenders in originating mortgage loans to be purchased by the
Seller; and (iv) the Seller employed, at the time such Mortgage Loans were
acquired by the Seller, pre-purchase or post-purchase quality assurance
procedures (which may involve, among other things, review of a sample of
mortgage loans purchased during a particular time period or through particular
channels) designed to ensure that Persons from which it purchased mortgage
loans properly applied the underwriting criteria designated by the
Seller.
Qualification
Defect:
With
respect to a Mortgage Loan, (a) a defective document in the Credit File or
the Mortgage File, (b) the absence of a document in the Credit File or
Mortgage File, or (c) the breach of any representation, warranty or
covenant with respect to the Mortgage Loan made by Indymac, but, in each case,
only if the affected Mortgage Loan would cease to qualify as a “qualified
mortgage” for purposes of the REMIC provisions.
-9-
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, which insurer is approved in such capacity by an Agency.
Qualified
Substitute Mortgage Loan:
A
mortgage loan that must, on the date of such substitution, (i) have an
unpaid principal balance, after deduction of all scheduled payments due in
the
month of substitution (or if more than one (1) mortgage loan is being
substituted, an aggregate principal balance), not in excess of the unpaid
principal balance of the repurchased Mortgage Loan (the amount of any shortfall
will be deposited in the Custodial Account by Indymac in the month of
substitution); (ii) have a Mortgage Interest Rate not less than, and not
more than 1% greater than, the Mortgage Interest Rate of the repurchased
Mortgage Loan; (iii) have a remaining term to maturity not greater than,
and not more than one year less than, the maturity date of the repurchased
Mortgage Loan; (iv) comply with each representation and warranty
(respecting individual Mortgage Loans) set forth in Section 3.02
hereof; (v) shall be the same type of Mortgage Loan (i.e., an Adjustable
Rate Mortgage Loan or a Fixed Rate Mortgage Loan).
Reconstitution:
Any
Securitization Transaction or Whole Loan Transfer.
Reconstitution
Agreements:
The
agreement or agreements entered into by the Seller and the Purchaser and/or
certain third parties on the Reconstitution Date or Dates with respect to any
or
all of the Mortgage Loans sold hereunder, in connection with a Whole Loan
Transfer or a Securitization Transaction pursuant to Section 6.07, including,
but not limited to, a seller’s warranties and servicing agreement with respect
to a Whole Loan Transfer, and a pooling and servicing agreement and/or
seller/servicer agreements and related custodial/trust agreement and documents
with respect to a Securitization Transaction.
Reconstitution
Date:
The
date on which any or all of the Mortgage Loans serviced under this Agreement
shall be removed from this Agreement and reconstituted as part of a
Securitization Transaction pursuant to Section 6.07 hereof. The
Reconstitution Date shall be such date which the Purchaser shall designate
in
writing.
Refinanced
Mortgage Loan:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
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.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
-10-
Remittance
Date:
The
eighteenth (18th) day of any month, beginning with the month next following
the month in which the related Cut-off Date occurs, or if such eighteenth
(18th) day is not a Business Day, the first Business Day immediately
following.
REO
Disposition:
The
final sale by Indymac of any REO Property or the transfer of the management
of
such REO Property to the Purchaser as set forth in
Section 4.13.
REO
Property:
A
Mortgaged Property acquired by Indymac on behalf of the Purchaser as described
in Section 4.13.
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal
Balance of the Mortgage Loan as of the date of repurchase plus
(ii) interest on such Stated Principal Balance at the Mortgage Loan
Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect
to any Mortgage Loan included in a Securitization Transaction, damages incurred
by the Purchaser or its assignee including the trust in any securitization
in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law provided,
however,
that if
at the time of repurchase the Servicer is not the Seller or an affiliate of
the
Seller, the amount described in clause (ii) shall be computed at the sum of
(a) the Mortgage Loan Remittance Rate and (b) the Servicing Fee
Rate.
Second
Lien Mortgage Loan:
A
Mortgage Loan secured by a second Mortgage on the related Property.
Securities
Act:
The
Securities Act of 1933, as amended.
Securitization
Transaction:
Any
transaction involving either (1) a sale or other transfer of some or all of
the Mortgage Loans directly or indirectly to an issuing entity in connection
with an issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or
privately placed, rated or unrated securities, the payments on which are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Security
Agreement:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Coop Shares and the originator of the related Mortgage Note that defines the
terms of the security interest in such Coop Shares and the related Proprietary
Lease.
Seller
Information:
As
defined in Section 7.04(a).
Servicing
Agreement:
The
agreement dated as of November 1, 2005 and signed by the Purchaser and Indymac
with respect to the administration and servicing of the Mortgage
Loans.
-11-
Servicing
Fee:
With
respect to each Mortgage Loan, the amount of the annual fee the Purchaser shall
pay to Indymac, which shall, for a period of one full month, be equal to
one-twelfth of the product of (i) the Servicing Fee Rate and (ii) the
Stated Principal Balance of such Mortgage Loan. Such fee shall be payable
monthly, computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage Loan is computed.
The obligation of the Purchaser to pay the Servicing Fee is limited to, and
the
Servicing Fee is payable solely from, the interest portion of such Monthly
Payment collected by Indymac, or as otherwise provided herein. Subject to the
foregoing, and with respect to each Mortgage Loan, Indymac shall be entitled
to
receive its Servicing Fee through the disposition of any related REO Property
and the Servicing Fee payable with respect to any REO Property shall be based
on
the Stated Principal Balance of the related Mortgage Loan at the time of
foreclosure.
Servicing
Fee Rate:
With
respect to any Mortgage Loan, the rate per annum set forth in the applicable
Trade Confirmation or Purchase Confirmation.
Sponsor:
The
sponsor, as such term is defined in Regulation AB, with respect to any
Securitization Transaction.
Standard
& Poor’s Glossary:
The
Standard & Poor’s LEVELS®
Glossary, as may be in effect from time to time.
Stated
Principal Balance:
With
respect to each Mortgage Loan as of any date of determination: (i) the
unpaid principal balance of the Mortgage Loan at the Cut-off Date after giving
effect to payments of principal due on or before such date, whether or not
received, minus (ii) all amounts previously distributed to the Purchaser
with respect to the related Mortgage Loan representing payments or recoveries
of
principal or advances in lieu thereof.
Static
Pool Information:
Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) of
Regulation AB.
Third
Party Originator:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Seller.
Trade
Confirmation:
A
letter agreement substantially in the form of Exhibit D hereto executed by
Indymac and the Purchaser prior to the applicable Closing Date confirming the
terms of a prospective purchase and sale of a Mortgage Loan
Package.
Transaction
Documents:
With
respect to any Mortgage Loan, the related Trade Confirmation, the related
Purchase Confirmation, the Custodial Agreement, the Servicing Agreement and
this
Agreement.
Updated
LTV:
With
respect to any Mortgage Loan, the outstanding principal balance of such Mortgage
Loan as of the date of determination divided by the value of the related
Mortgaged Property as determined by a recent appraisal of the Mortgaged
Property.
Whole
Loan Transfer:
Any
sale or transfer of some or all of the Mortgage Loans, other than a
Securitization Transaction.
-12-
ARTICLE
II
PRE-CLOSING
AND CLOSING PROCEDURES
Section
2.01 Books
and Records; Transfers of Mortgage Loans.
From
and
after the sale of the Mortgage Loans to the Purchaser, all rights arising out
of
the Mortgage Loans including but not limited to all funds received on or in
connection with the Mortgage Loans on account of interest and principal due
after the Cut-off Date, shall be held by Indymac in trust for the benefit of
the
Purchaser as owner of the Mortgage Loans, and Indymac shall retain record title
to the related Mortgage Loans for the sole purpose of facilitating the servicing
and the supervision of the servicing of the Mortgage Loans.
The
sale
of each Mortgage Loan shall be reflected on Indymac’s balance sheet and other
financial statements as a sale of assets by Indymac. Indymac 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, Indymac shall
maintain in its possession, available for inspection by the Purchaser, or its
designee, and shall deliver to the Purchaser upon demand, evidence of compliance
with all federal, state and local laws, rules and regulations, and requirements
of ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, 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 under the Underwriting Guidelines, and periodic inspection reports
as
required by Section 3.15 of the Servicing Agreement. To the extent that
original documents are not required for purposes of realization of Liquidation
Proceeds or Insurance Proceeds, documents maintained by Indymac may be in the
form of microfilm or microfiche or such other reliable means of recreating
original documents, including but not limited to, optical imagery techniques
so
long as Indymac complies with the requirements of the ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac
Selling and Servicing Guide, as amended from time to time. Indymac shall
indemnify the Purchaser and hold it harmless against any damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and other costs and expenses resulting from the unenforceability
(as
determined by a court of competent jurisdiction) of any Mortgage Loan
document recreated in the manner described in the foregoing sentence against
the
applicable Mortgagor as a result of such recreation or the absence of such
original Mortgage Loan document.
Section
2.02 Due
Diligence by the Purchaser.
Review
of
Credit File and Mortgage File. At least 15 days prior to the Closing Date,
Indymac shall make available to the Purchaser the Credit File and the Mortgage
File for each Preliminary Mortgage Loan in the related Preliminary Mortgage
Loan
Package and shall accommodate reasonable requests by the Purchaser to provide
personnel and documents as necessary to facilitate the review. The Purchaser
shall have the right to review the Credit File and the Mortgage File for each
such Preliminary Mortgage Loan, at Indymac’s offices or such other location
agreed upon by the Purchaser and Indymac, for the purpose of determining whether
each Preliminary Mortgage Loan conforms in all material respects to the
applicable terms contained in the Transaction Documents, which determination
shall be made in the Purchaser’s sole discretion; provided,
further,
that
the Purchaser, in its sole discretion, has the right to reject any Preliminary
Mortgage Loan if the original Mortgage Note for such Preliminary Mortgage Loan
is lost. In the event that the Purchaser rejects any Preliminary Mortgage Loan
based on such review, Indymac shall have the opportunity, at the discretion
of
the Purchaser, to substitute replacement Preliminary Mortgage Loans satisfying
the requirements set forth above, and the Purchaser shall have the right to
review any such replacement Preliminary Mortgage Loan(s) in the manner
contemplated above. Such examination may be made by the Purchaser or its
designee, at its expense, at any reasonable time before the Closing Date. Such
underwriting by the Purchaser or its designee shall not impair or diminish
the
rights of the Purchaser or any of its successors under this Agreement with
respect to a breach of the representations and warranties contained in this
Agreement, provided
that the
Purchaser and Indymac shall notify the other upon discovery of any breach of
the
representations and warranties contained in this Agreement. The fact that the
Purchaser or its designee has conducted or has failed to conduct any partial
or
complete examination of the Credit Files and the Mortgage Files shall not affect
the Purchaser’s or any of its successors’ rights to demand repurchase or other
relief or remedy provided for in this Agreement, subject to the notification
requirement of Section 3.03.
-13-
Section
2.03 Identification
of Mortgage Loan Package.
At
least
three (3) Business Days prior to the Closing Date, the Purchaser shall
identify those Preliminary Mortgage Loans that the Purchaser intends to be
included in the Mortgage Loan Package.
Section
2.04 Credit
Document Deficiencies Identified During Due Diligence.
If,
with
respect to a Mortgage Loan Package, the related Purchase Confirmation identifies
any Mortgage Loan for which the related Credit File or the Mortgage File is
missing material documentation (as used therein, the “Missing
Credit Documents”),
Indymac agrees to use its best efforts to procure each such Missing Credit
Document within sixty (60) days following the related Closing Date. In the
event of a default by a Mortgagor or any material impairment of the Mortgaged
Property, in either case directly arising from a breach of Indymac’s obligation
to deliver the Missing Credit Document within the time specified above, Indymac
shall repurchase such Mortgage Loan at the Repurchase Price.
Section
2.05 Delivery
of Collateral Files.
Custodial
Agreement. Indymac shall, no later than five (5) Business Days prior to the
related Closing Date, pursuant to the Custodial Agreement deliver and release
to
the Custodian the Collateral File for each Mortgage Loan in the Mortgage Loan
Package and shall execute, and cause the Custodian to execute, the Custodial
Agreement. The Custodian has certified its receipt of all such Collateral
Documents required to be delivered pursuant to the Custodial Agreement. Indymac
will be responsible for the fees and expenses with respect to the delivery
and
will be responsible for the fees and expenses related to the recording of the
initial Assignments of Mortgage (including any fees and expenses related to
any
preparation and recording of any intervening or prior assignments of the
Mortgage Loans to Indymac or to any prior owners of or mortgagees with respect
to the Mortgage Loans) or Form UCC-3’s for Cooperative Loans. The Purchaser
will be responsible for the Custodian’s fees and expenses as set forth in the
Custodial Agreement.
-14-
Indymac
shall forward to the Custodian original documents evidencing an assumption,
modification, consolidation or extension of any Mortgage Loan entered into
in
accordance with Section 3.1(c) or 5.1 of the Servicing Agreement
within two weeks of their execution, provided,
however,
that
Indymac shall provide the Custodian with a certified true copy of any such
document submitted for recordation within ten (10) days 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 120 days of its submission
for
recordation.
In
the
event the public recording office is delayed in returning any original document,
Indymac shall deliver to the Custodian within 240 days of its submission for
recordation, a copy of such document and an Officer’s Certificate, which shall
(i) identify the recorded document; (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay by the
public recording office, (iii) state the amount of time generally required
by the applicable recording office to record and return a document submitted
for
recordation, and (iv) specify the date the applicable recorded document
will be delivered to the Custodian. The Company will be required to deliver
the
document to the Custodian by the date specified in (iv) above.
Notwithstanding
the foregoing, if the originals or certified copies required in this
Section 2.05 are not delivered as required within 90 days following the
Closing Date or as otherwise extended as set forth above, the related Mortgage
Loan shall, upon request of the Purchaser, be repurchased by Indymac in
accordance with Section 3.03 hereof; provided,
however,
that
the foregoing repurchase obligation shall not apply in the event Indymac cannot
deliver such items due to a delay caused by the recording office in the
applicable jurisdiction; provided
that
Indymac shall deliver instead a recording receipt of such recording office
or,
if such recording receipt is not available, an Officer’s Certificate from
Indymac confirming that such documents have been accepted for recording. Any
such document shall be delivered to the Purchaser or its designee promptly
upon
receipt thereof from the related recording office.
If
Indymac, the Purchaser or the Custodian finds any document or documents
constituting a part of a Credit File or Mortgage File pertaining to a Mortgage
Loan to be defective (or missing) in any material respect, and such defect
or missing document materially and adversely affects the value of the related
Mortgage Loan or the interests of the Purchaser therein, the party discovering
such defect shall promptly so notify Indymac. Indymac shall have a period of
90
days after receipt of such written notice within which to correct or cure any
such defect. Indymac hereby covenants and agrees that, if any material defect
cannot be corrected or cured, Indymac will, upon the expiration of the
applicable cure period described above, repurchase the related Mortgage Loan
in
the manner set forth in Section 3.03; provided,
however,
that
with respect to any Mortgage Loan, if such defect constitutes a Qualification
Defect, any such repurchase must take place within 60 days of the date such
defect is discovered.
Notwithstanding
the foregoing, with respect to a Mortgage Loan, if, at the end of such 90-day
period, Indymac delivers an Officer’s Certificate to the Purchaser certifying
that Indymac is using good faith efforts to correct or cure such defect and
identifying progress made, then the Purchaser shall grant Indymac an extension
to correct or cure such defect. The extension shall not extend beyond
(1) if the defect is a Qualification Defect, the date that is 60 days after
the date the defect is discovered, or, (2) if the defect is not a
Qualification Defect (as evidenced by an Opinion of Counsel), the date that
is
30 days beyond the original 90-day cure period. If the defect is not a
Qualification Defect, additional 30-day extensions may be obtained pursuant
to
the same procedure, as long as Indymac demonstrates continued progress toward
a
correction or cure; provided
that no
extension shall be granted beyond 180 days from the date on which the Company
received the original notice of the defect.
-15-
Notwithstanding
the foregoing, with respect to a Mortgage Loan, the failure of the Purchaser
to
notify Indymac of any defective or missing document in a Credit File or Mortgage
File within such 90-day period, or the failure of the Purchaser to require
Indymac to cure or repurchase the related Mortgage Loan upon expiration of
such
90-day period, shall not constitute a waiver of its rights hereunder, including
the rights with respect to a Mortgage Loan, to require Indymac to repurchase
the
affected Mortgage Loan and the right to indemnification pursuant to
Section 3.03 hereof.
Section
2.06 Purchase
Confirmation.
Upon
confirmation with the Purchaser of a Mortgage Loan Package, Indymac shall
prepare and deliver to the Purchaser for execution the related Purchase
Confirmation, executed by an authorized signatory of Indymac.
Section
2.07 Closing.
The
Closing of each Mortgage Loan Package shall take place on the related Closing
Date and shall be subject to the satisfaction of each of the following
conditions, unless otherwise waived by the prejudiced party(ies):
(a) All
of
the representations and warranties of Indymac under this Agreement shall be
true
and correct as of the Closing Date and no event shall have occurred that, with
notice or the passage of time, would constitute a default under this
Agreement;
(b) Both
parties shall have executed and delivered the related Purchase Confirmation,
Trade Confirmation, Servicing Agreement and Custodial Agreement;
(c) Indymac
shall have delivered and released to the Custodian all documents required
pursuant to this Agreement and the Custodial Agreement; and
(d) All
other
terms and conditions of this Agreement have been complied with.
Section
2.08 Payment
of the Purchase Proceeds.
Subject
to the conditions set forth in Section 2.07, and in consideration for the
Mortgage Loan Package to be purchased by the Purchaser on the related Closing
Date, the Purchaser shall pay to Indymac on such Closing Date the Purchase
Proceeds by wire transfer of immediately available funds to the account
designated by Indymac on or before the Funding Deadline.
-16-
Section
2.09 Entitlement
to Payments on the Mortgage Loans.
With
respect to any Mortgage Loan purchased hereunder, the Purchaser shall be
entitled to (a) all scheduled principal due after the related Cut-off Date;
(b) all other recoveries of principal collected after the related Cut-off
Date, except for (i) recoveries of principal collected after the Cut-off
Date and prior to the Closing Date that are reflected in the Mortgage Loan
Schedule, and (ii) all scheduled payments of principal due on or before the
related Cut-off Date; and (c) all payments of interest on such Mortgage
Loan net of interest at the Servicing Fee Rate and the LPMI Fee, if applicable
(minus that portion of any such payment that is allocable to the period prior
to
the related Cut-off Date) due after the Cut-off Date.
Section
2.10 Payment
of Costs and Expenses.
The
Purchaser and Indymac shall each bear its own costs and expenses in connection
with the purchase and sale of the Mortgage Loans including any commissions
due
its sales personnel, the legal fees and expenses of its attorneys and any due
diligence expenses. Without limiting the generality of the foregoing, any costs
and expenses incurred in connection with recording the Assignment of Mortgage
or
any subsequent assignment thereof shall be paid for by the
Purchaser.
Section
2.11 MERS
Mortgage Loans and the MERS System.
(a) Notwithstanding
anything contained in this Agreement to the contrary, with respect to any MERS
Mortgage Loan sold to the Purchaser by Indymac pursuant to this Agreement,
Indymac shall cause the registration of such MERS Mortgage Loan to be changed
on
the MERS System to reflect the Purchaser as the beneficial owner of such MERS
Mortgage Loan. The foregoing obligation of Indymac shall be in lieu of Indymac
delivering to the Purchaser an Assignment of Mortgage for such MERS Mortgage
Loan. With respect to the Mortgage and intervening assignments related to any
MERS Mortgage Loan, Indymac shall, in accordance with Section 2.05, provide
the Purchaser with the original Mortgage with evidence of registration with
MERS
and, as applicable, the originals of all intervening assignments of the Mortgage
with evidence of recording thereon prior to the registration of the Mortgage
Loan with the MERS System.
(b) In
connection with the MERS System, Indymac is hereby authorized and empowered,
in
its own name, to register, or change the registration of any MERS Mortgage
Loan
to effectuate such registration. Further, Indymac is authorized to cause the
removal of any MERS Mortgage Loan from such registration, and to execute and
deliver on behalf of itself and the Purchaser, any and all instruments of
assignment and comparable instruments with respect to any registration and/or
removal of such MERS Mortgage Loan on or from the MERS System.
-17-
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Representations
and Warranties Respecting Indymac.
Indymac
represents, warrants and covenants to the Purchaser, its successors and assigns
that as of each Closing Date:
(a) Organization
and Standing.
Indymac
is duly organized, validly existing and in good standing under the laws of
the
jurisdiction in which it is organized and is qualified and licensed to transact
business in and is in good standing under the laws of each state where each
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and the servicing of the Mortgage Loan
in
accordance with the terms of this Agreement. The execution, delivery and
performance of this Agreement (including all instruments of transfer to be
delivered pursuant to this Agreement) by Indymac and the consummation of
the transactions contemplated hereby have been duly and validly authorized.
This
Agreement evidences the valid, binding and enforceable obligation of Indymac;
and all requisite corporate action has been taken by Indymac to make this
Agreement valid and binding upon Indymac in accordance with its
terms;
(b) Due
Authority.
Indymac
has the full power and authority to (i) perform and enter into and
consummate all transactions contemplated by this Agreement and (ii) to sell
each Mortgage Loan;
(c) Ordinary
Course of Business.
The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of Indymac, which is in the business of selling
and
servicing loans, and the transfer, assignment and conveyance of the Mortgage
Notes and the Mortgages by Indymac pursuant to this Agreement are not subject
to
the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction;
(d) No
Conflict.
Neither
the acquisition or origination of the Mortgage Loans by Indymac, the sale of
the
Mortgage Loans to the Purchaser, the consummation of the transactions
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement, will conflict with or result in a breach of any
of
the terms, conditions or provisions of Indymac’s certificate of incorporation or
by-laws or result in a material breach of any legal restriction or any material
agreement or instrument to which Indymac is now a party or by which it is bound,
or constitute a material default or result in an acceleration under any of
the
foregoing, or result in the violation of any material law, rule, regulation,
order, judgment or decree to which Indymac or its property is
subject;
(e) Approved
Seller.
Indymac
is an approved seller/servicer for each Agency in good standing and is a
mortgagee approved by the Secretary of HUD. No event has occurred, including
a
change in insurance coverage, which would make Indymac unable to comply with
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or HUD eligibility requirements. Furthermore, if at
any
time prior to the termination of this Agreement, Indymac is unable to comply
with any of the ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or HUD eligibility requirements, it
shall immediately notify the Purchaser that it is no longer an approved
seller/servicer as defined in the first sentence above;
-18-
(f) No
Pending Litigation.
There
is no action, suit, proceeding, investigation or litigation pending or, to
Indymac’s knowledge, threatened, which either in any one instance or in the
aggregate, if determined adversely to Indymac would materially and adversely
affect the sale of the Mortgage Loans to the Purchaser, the ability of Indymac
to service the Mortgage Loans hereunder in accordance with the terms hereof,
or
Indymac’s ability to perform its obligations under this Agreement;
(g) 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 Indymac, of
or
compliance by Indymac with, this Agreement or the consummation of the
transactions contemplated by this Agreement, or if required, such consent,
approval, authorization or order has been obtained prior to the related Closing
Date;
(h) Reasonable
Servicing Fee.
Indymac
acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by Indymac, for accounting and tax purposes, as compensation
for the servicing and administration of the Mortgage Loans pursuant to this
Agreement;
(i) Ability
to Perform.
Indymac
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. Indymac
is
solvent and the sale of the Mortgage Loans will not cause Indymac to become
insolvent. The sale of the Mortgage Loans is not undertaken to hinder, delay
or
defraud any of Indymac’s creditors;
(j) No
Untrue Information.
Neither
this Agreement nor any statement, report or other document prepared and
furnished, or to be furnished pursuant to this Agreement or in connection with
the transactions contemplated hereby, by Indymac contains any untrue statement
of fact or omits to state a fact necessary to make the statements contained
therein not misleading;
(k) Sale
Treatment.
Indymac
has determined that the disposition of the Mortgage Loans pursuant to this
Agreement will be afforded sale treatment for accounting and tax
purposes;
(l) Fair
Credit Report Act.
Indymac, in its capacity as servicer for each Mortgage Loan, has fully furnished
(or caused to be furnished), in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company (three of the credit
repositories) or their successors and assigns, on a monthly
basis;
(m) No
Brokers’ Fees.
Indymac
has not dealt with any broker, investment banker, agent or other Person that
may
be entitled to any commission or compensation in the connection with the sale
of
the Mortgage Loans;
-19-
(n) Fair
Consideration.
The
consideration received by Indymac upon the sale of the Mortgage Loans under
this
Agreement constitutes fair consideration and reasonably equivalent value for
the
Mortgage Loans; and
(o) USA
Patriot Act of 2001.
Indymac
has complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively, the
“Anti-Money
Laundering Laws”);
Indymac has established an anti-money laundering compliance program as required
by the Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes of the
Anti-Money Laundering Laws, including with respect to the legitimacy of the
applicable Mortgagor and the origin of the assets used by the said Mortgagor
to
purchase the property in question, and maintains, and will maintain, sufficient
information to identify the applicable Mortgagor for purposes of the Anti-Money
Laundering Laws.
(p) Insured
Depository Institution Representations.
Indymac
is an “insured depository institution” as that term is defined in
Section 1813(c)(2) of Title 12 of the United States Code, as amended,
and accordingly, Indymac makes the following additional representations and
warranties:
(i) This
Agreement between the Purchaser and Indymac conforms to all applicable statutory
and regulatory requirements; and
(ii) This
Agreement is (1) executed contemporaneously with the agreement reached by
the Purchaser and Indymac, (2) approved by a specific corporate or banking
association resolution by the Seller’s board of directors, which approval shall
be reflected in the minutes of said board, and (3) an official record of
Indymac. A copy of such resolution, certified by a vice president or higher
officer of the Indymac has been provided to the Purchaser.
Section
3.02 Representations
and Warranties Regarding Individual Mortgage Loans.
With
respect to each Mortgage Loan (unless otherwise specified below), Indymac
represents and warrants to the Purchaser, its successors and assigns, as of
the
related Closing Date, that:
(a) Mortgage
Loan Schedule.
The
information contained in the Mortgage Loan Schedule is complete, true and
correct in all material respects;
(b) No
Delinquencies or Advances.
All
payments required to be made and credited prior to the related Cut-off Date
for
such Mortgage Loan under the terms of the Mortgage Note have been made; Indymac
has not advanced funds, or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the Mortgaged Property subject
to
the Mortgage, directly or indirectly, for the payment of any amount required
by
the Mortgage Loan; and there has been no delinquency of more than thirty
(30) days in any payment by the Mortgagor thereunder during the last twelve
(12) months;
-20-
(c) Taxes,
Assessments, Insurance Premiums and Other Charges.
There
are no defaults by Indymac or any prior originator in complying with the terms
of the Mortgage and there are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(d) No
Modifications.
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments that have
been
or will be recorded, if necessary to protect the interests of the Purchaser,
and
that have been or will be delivered to the Purchaser, all in accordance with
this Agreement. The substance of any such waiver, alteration or modification
has
been approved by the primary mortgage guaranty insurer, if any, and by the
title
insurer, to the extent required by the related policy and its terms are
reflected on the Mortgage Loan Schedule. No Mortgagor has been released, in
whole or in part, except in connection with an assumption agreement approved
by
the primary mortgage insurer, if any, and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the Collateral
File and the terms of which are reflected in the Mortgage Loan Schedule if
executed prior to the Closing Date;
(e) No
Defenses.
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or the
exercise of any right thereunder, render the Mortgage unenforceable, in whole
or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Hazard
and Flood Insurance.
All
buildings and other customarily insured improvements upon the Mortgaged Property
are insured in an amount which is not less than the lesser of (i) the
maximum insurable value of the Mortgaged Property and (ii) the greater of
(a) the outstanding principal balance of the Mortgage Loan, and (b) an
amount that would prevent the Mortgagor from becoming a co-insurer, by an
insurer acceptable to an Agency against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where the Mortgaged
Property is located, and such insurer is licensed to do business in the state
where the Mortgaged Property is located. If the Mortgaged Property is a
condominium unit, it is included under the coverage afforded by a blanket
policy. All such insurance policies contain a standard mortgagee clause naming
Indymac, its successors and assigns as mortgagee, and all premiums thereon
have
been paid. If, upon the origination of the Mortgage Loan, the Mortgaged Property
was, or was subsequently deemed to be, in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards (and such flood insurance has been made available), a flood insurance
policy that meets the requirements of the current guidelines of the Federal
Insurance Administration (or any successor thereto) and conforms to the
requirements of an Agency is in effect. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s expense and, upon
the failure of the Mortgagor to do so, the holder of the Mortgage is authorized
to maintain such insurance at the Mortgagor’s expense and to seek reimbursement
therefor from the Mortgagor;
(g) Compliance
with Applicable Law.
All
applicable local, state and federal laws including without limitation usury,
truth in lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity, fair housing, predatory and abusive lending and
disclosure laws applicable to the origination and servicing of the Mortgage
Loan
have been complied with, and Indymac shall maintain in its possession, available
for the Purchaser’s inspection and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements.
-21-
(h) No
Release of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated, or rescinded, in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
Indymac has not waived the performance by the Mortgagor of any action, if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has Indymac waived any default.
(i) Enforceability
of Mortgage Documents.
The
Mortgage Note, the Mortgage and any related modifications, assignments and
assumptions are genuine and each is the legal, valid and binding obligation
of
the maker thereof, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws;
(j) Valid
First or Second Lien on Mortgage Loans that are not Cooperative
Loans.
Each
related Mortgage is a valid, perfected, existing and enforceable first or second
lien or a first priority ownership interest in an estate in fee simple in the
Mortgaged Property, including, for Mortgage Loans that are not Cooperative
Loans, all improvements on the Mortgaged Property, securing the related 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 may secure and create a first lien upon
a
leasehold estate of the Mortgagor. The lien of the Mortgage is subject only
to:
(i) the
lien
of current real property taxes and assessments not yet due and
payable;
(ii) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record as of the date of recording that are acceptable to mortgage
lending institutions generally and specifically referred to in the lender’s
title insurance policy delivered to the originator of the Mortgage Loan and
that
do not adversely affect the Appraised Value of the Mortgaged Property set forth
in such appraisal; and
(iii) other
matters to which like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be provided by the
Mortgage or the use, enjoyment, value or marketability of the related Mortgaged
Property; and
(iv) with
respect to Second Lien Mortgage Loans, the lien of the first mortgage on the
Mortgaged Property.
Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting, enforceable and perfected (A) first lien and first priority security
interest with respect to each first lien mortgage loan, or (B) second lien
and
second priority security interest with respect to each Second Lien Mortgage
Loan, in either case, on the property described therein and the Company has
full
right to sell and assign the same to the Purchaser.
-22-
(k) Valid
First Liens on Cooperative Loans:
With
respect to each Cooperative Loan, the related Mortgage is a valid, enforceable
and subsisting first security interest on the related cooperative shares
securing the related cooperative note and lease, subject only to (a) liens
of the cooperative for unpaid assessments representing the Mortgagor’s pro rata
share of the cooperative’s payments for its blanket mortgage, current and future
real property taxes, insurance premiums, maintenance fees and other assessments
to which like collateral is commonly subject and (b) other matters to which
like collateral is commonly subject which do not materially interfere with
the
benefits of the security intended to be provided by the Security Agreement.
There are no liens against or security interests in the cooperative shares
relating to each Cooperative Loan (except for unpaid maintenance, assessments
and other amounts owed to the related cooperative which individually or in
the
aggregate will not have a material adverse effect on such Cooperative Loan),
which have priority equal to or over the Indymac’s security interest in such
cooperative shares;
(l) [Reserved];
(m) With
respect to each Cooperative Loan, the related cooperative corporation that
owns
title to the related cooperative apartment building is a “cooperative housing
corporation” within the meaning of Section 216 of the Code, and is in
material compliance with applicable federal, state and local laws which, if
not
complied with, could have a material adverse effect on the Mortgaged
Property;
(n) With
respect to each Cooperative Loan, there is no prohibition against pledging
the
shares of the cooperative corporation or assigning the Cooperative
Lease;
(o) Leasehold
Interests.
With
respect to any ground lease to which a Mortgaged Property may be subject:
(i) the Mortgagor is the owner of a valid and subsisting leasehold interest
under such ground lease: (ii) such ground lease is in full force and
effect; (iii) all rent, additional rent and other charges reserved therein
have been fully paid to the extent payable as of the Closing Date; (iv) the
Mortgagor enjoys the quiet and peaceful possession of the leasehold estate,
subject to any sublease; (v) the Mortgagor is not in default under any of
the terms of such ground lease, and there are no circumstances which, with
the
passage of time or the giving of notice, or both, would result in a default
under such ground lease; (vi) the lessor under such ground lease is not in
default under any of the terms or provisions of such ground lease on the part
of
the lessor to be observed or performed and (vii) the term of such lease
does not terminate earlier than 5 years following the maturity date of the
Mortgage Note.
(p) Disbursements
of Proceeds.
The
proceeds of the Mortgage Loan have been fully disbursed, and there is no
requirement for future advances thereunder, and any and all requirements as
to
completion of any on-site or off-site improvement and as to disbursements of
any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and recording the Mortgage
were
paid, and the Mortgagor is not entitled to any refund of any amounts paid or
due
under the Mortgage Note or Mortgage;
-23-
(q) Sole
Owner.
Indymac
is the sole owner and holder of the Mortgage Loan and the indebtedness evidenced
by the Mortgage Note. The Mortgage Loan is not assigned or pledged, and Indymac
has good and marketable title thereto, and has full right to transfer and sell
the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien, pledge, participation interests, charge, claim or security interest not
specifically set forth in the related Mortgage Loan Schedule and has full right
and authority subject to no interest or participation of, or agreement with,
any
other party, to sell and assign each Mortgage Loan pursuant to the terms of
this
Agreement. Indymac intends to relinquish all rights to monitor, possess and
control the Mortgage Loan except in connection with the servicing of the
Mortgage Loan as set forth in the Servicing Agreement. After the Closing Date,
Indymac will not have any right to modify or alter the terms of the sale of
the
Mortgage Loan, nor will Indymac have any obligation or right to repurchase
the
Mortgage Loan, except as provided in this Agreement or as otherwise agreed
to by
Indymac and the Purchaser.
(r) Title
Insurance.
Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy included in
the related Servicing File, acceptable to an Agency, issued by a title insurer
acceptable to an Agency and qualified to do business in the jurisdiction where
the related Mortgaged Property is located, insuring (subject to the exceptions
contained in Section 3.02(j)(i), (ii) and
(iii) above) Indymac, its successors and assigns as to the first
priority lien (with respect to first lien Mortgage Loans) or second priority
lien (with respect to Second Lien Mortgage Loans) of the Mortgage. Additionally,
such lender’s title insurance policy affirmatively insures ingress and egress,
and against encroachments by or upon the Mortgaged Property or any interest
therein. Indymac is the sole insured of such lender’s title insurance policy,
and such lender’s title insurance policy is in full force and effect and will be
in full force and effect upon the consummation of the transactions contemplated
by this Agreement. No claims have been made under such lender’s title insurance
policy, and no prior holder of the related Mortgage, including Indymac, has
done, by act or omission, anything which would impair the coverage of such
lender’s title insurance policy;
(s) No
Default.
There
is no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and Indymac has not waived
any default, breach, violation or event of acceleration. With respect to each
Second Lien Mortgage Loan, (i) the prior mortgage is in full force and effect,
(ii) there is no default, breach, violation or event of acceleration existing
under such prior mortgage or the related mortgage note, (iii) as of the related
Closing Date, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration thereunder, and either (A) the prior mortgage
contains a provision which allows or (B) applicable law requires, the mortgagee
under the Second Lien Mortgage Loan to receive notice of, and affords such
mortgagee an opportunity to cure any default by payment in full or otherwise
under the prior mortgage;
(t) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such lien) affecting the related Mortgaged Property which are or may be
liens prior to, or equal or coordinate with, the lien of the related
Mortgage;
-24-
(u) Origination
and Collection Practices.
The
origination and collection practices used by Indymac with respect to each
Mortgage Loan and Mortgage have been in all respects legal, proper, prudent
and
customary in the mortgage origination and servicing business. With respect
to
escrow deposits and Escrow Payments, if any, all such payments are in the
possession of, or under the control of, Indymac and there exist no deficiencies
in connection therewith for which customary arrangements for repayment thereof
have not been made. No escrow deposits or Escrow Payments or other charges
or
payments due Indymac have been capitalized under any Mortgage or the related
Mortgage Note. All payments have been collected in compliance with local, state
and federal law and the terms of the related Mortgage Note. With respect to
Adjustable Rate Mortgage Loans, all Mortgage Interest Rate adjustments have
been
made in strict compliance with local, state and federal law and the terms of
the
related Mortgage Note. Any interest required to be paid pursuant to state and
local law has been properly paid and credited;
(v) No
Condemnation or Damage.
There
is no proceeding pending or, to Indymac’s knowledge, threatened for the total or
partial condemnation of the Mortgaged Property and such property is in good
repair and is undamaged by waste, fire, earthquake or earth movement, windstorm,
flood, hurricane, tornado or other casualty, so as to affect adversely the
value
of the Mortgaged Property as security for the Mortgage Loan or the use for
which
the premises were intended;
(w) Customary
and Enforceable Provisions.
The
Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby
including (a) in the case of a Mortgage designated as a deed of trust, by
trustee’s sale, and (b) otherwise by judicial foreclosure. There is no
homestead or other exemption available to a Mortgagor which would interfere
with
the right to sell the Mortgaged Property at a trustee’s sale or the right to
foreclose the Mortgage;
(x) Collateral.
The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(j) above;
(y) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by an appraiser who
meets
the minimum requisite qualifications of an Agency for appraisers, duly appointed
by the originator, that had no interest, direct or indirect in the Mortgaged
Property, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan; the appraisal is in a form acceptable to an Agency, with
such riders as are acceptable to such Agency, and such appraisal complies with
the requirements of FIRREA; furthermore, the appraisal type for each Mortgage
Loan is accurately reflected on the Mortgage Loan Schedule;
(z) Trustee
for Deed of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the
Mortgagor;
-25-
(aa) Private
Mortgage Insurance.
Each
PMI Policy has been issued by an insurer acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac, in at least such amounts as required by FHMA or ▇▇▇▇▇▇▇ Mac. All provisions
of such PMI Policy have been and are being complied with, such policy is in
full
force and effect, and all premiums due thereunder have been paid. Any Mortgage
subject to any such PMI Policy obligates the Mortgagor thereunder to maintain
such insurance and to pay all premiums and charges in connection therewith
or,
in the case of a lender paid mortgage insurance policy, the premiums and charges
are included in the Mortgage Interest Rate for the Mortgage Loan;
(bb) Lawfully
Occupied.
The
Mortgaged Property is lawfully occupied under applicable law. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same including certificates of occupancy, have been made or
obtained from the appropriate authorities. No improvements violate local zoning
laws;
(cc) Assignment
of Mortgage.
The
Assignment of Mortgage is in recordable form and is acceptable for recording
under the laws of the jurisdiction in which the Mortgaged Property is
located;
(dd) Form
of Mortgage Note and Mortgage.
The
Mortgage Note and Mortgage are on forms that are customary in the mortgage
origination and servicing business;
(ee) Predatory
Lending Regulations.
No
Mortgage Loan is a High Cost Loan, Home Loan or Covered Loan, as applicable,
and
no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act. This representation and warranty
is a
Deemed Material Breach Representation.
(ff) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the Cut-off Date have been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest rate
and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first or second lien priority
by
a title insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to each Agency.
The
consolidated principal amount does not exceed the original principal amount
of
the Mortgage Loan
(gg) Type
of Mortgaged Property.
If a
portion of the Mortgaged Property was being used for commercial purposes then
(i) the mixed use of the property represents a legal, permissible use of
the property under the local zoning requirements, (ii) the Mortgagor is the
owner and the operator of the business, (iii) the Mortgaged Property is
primarily residential in nature and (iv) the market value of the property
is primarily a function of its residential characteristics.
(hh) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral, pledged account
or other security except the lien of the corresponding Mortgage and the security
interest of any applicable security agreement or chattel mortgage referred
to in
(j) above
-26-
(ii) Servicemembers
Civil Relief Act.
The
Mortgagor has not notified Indymac, and Indymac has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers Civil Relief
Act
or any similar state law;
(jj) Payment
Terms.
The
Mortgage Note is payable on the first day of each month in equal monthly
installments of principal and interest (or interest, in the case of any Mortgage
Loan for which monthly payments consist of only interest for a period of time
specified on the Mortgage Loan Schedule), (provided
that,
the installments of interest are subject to change due to the adjustments to
the
Mortgage Interest Rate on each Interest Rate Adjustment Date with respect to
an
Adjustable Rate Mortgage, and interest is calculated and payable in
arrears) providing for full amortization by maturity over a scheduled term
of no more than 30 years. No Mortgage Loan converts, pursuant to the terms
of
the related Mortgage Note, from having interest accrue on the principal amount
thereof based on an adjustable rate to having interest accrue based on a fixed
rate, and no Mortgage Loan has a shared appreciation or other contingent
interest feature, or permits negative amortization. The Mortgage Interest Rate,
Lifetime Rate Cap, each applicable Periodic Rate Cap and each applicable
Interest Adjustment Date for each Mortgage Loan are as set forth for such
Mortgage Loan in the Mortgage Loan Schedule;
(kk) Origination.
At the
time the Mortgage Loan was originated, the originator was a mortgagee approved
by the Secretary of Housing and Urban Development pursuant to Sections 203
and
211 of the National Housing Act or a savings and loan association, a saving
bank, a commercial bank or similar banking institution which is supervised
by a
Federal or State authority.
(ll) Loan-to-Value
Ratio; CLTV; No Foreclosures.
The
Combined Loan to Value Ratio as to any Mortgage Loan was no greater than 100%
at
the time of its origination or refinancing, as applicable. No Mortgage Loan
is
subject to a written foreclosure agreement or pending foreclosure
proceedings;
(mm) Underwriting
Guidelines.
The
Mortgage Loan was underwritten substantially in accordance with Indymac’s
underwriting guidelines at the time of origination, subject to such reasonable
variances as Indymac approved. (the “Underwriting
Guidelines”);
(nn) Adverse
Selection.
Indymac
used no adverse selection procedures in selecting the Mortgage Loan from among
the outstanding first-lien residential mortgage loans owned by it which were
available for inclusion in the Mortgage Loan Package;
(oo) Environmental
Matters.
There
is no pending action or proceeding directly involving any Mortgaged Property
of
which Indymac is aware in which compliance with any environmental law, rule
or
regulation is an issue. To the best of Indymac’s knowledge, nothing further
remains to be done to satisfy in full all requirements of each such law, rule
or
regulation consisting a prerequisite to use and enjoyment of said
property;
(pp) No
Bankruptcy; Acceptable Investment.
The
Mortgagor is not in bankruptcy and is not insolvent;
-27-
(qq) No
Additional Payments.
There
is no obligation on the part of Indymac or any other party to make payments
in
addition to those made by the Mortgagor;
(rr) No
Arbitration.
With
respect to any Mortgage Loan originated on or after August 1, 2004 and
underlying the security, neither the related mortgage nor the related mortgage
note requires the Mortgagor to submit to arbitration to resolve any dispute
arising out of or relating in any way to the Mortgage Loan transaction. This
representation and warranty is a Deemed Material and Adverse
Representation;
(ss) No
Credit Insurance Policies.
No
Mortgagor was required to purchase any single premium credit insurance policy
(e.g., life, mortgage, disability, accident, unemployment, or property insurance
product) or debt cancellation agreement as a condition of obtaining the
extension of credit. No Mortgagor obtained a prepaid single premium credit
insurance policy (e.g., life, mortgage, disability, accident, unemployment,
or
property insurance product) in connection with the origination of the
Mortgage Loan; No proceeds from any Mortgage Loan were used to purchase single
premium credit insurance policies or debt cancellation agreements as part of
the
origination of, or as a condition to closing, such Mortgage Loan. This
representation and warranty is a Deemed Material and Adverse
Representation;
(tt) Mortgage
Loans with Prepayment Premiums.
The
Mortgage Loan is subject to a prepayment penalty as provided in the related
Mortgage Note except as set forth on the related Mortgage Loan Schedule. With
respect to each Mortgage Loan that has a prepayment penalty feature, each such
prepayment penalty is enforceable and will be enforced by the Seller for the
benefit of the Purchaser, and each prepayment penalty is permitted pursuant
to
federal, state and local law. Each such prepayment penalty is in an amount
not
more than the maximum amount permitted under applicable law and no such
prepayment penalty may be imposed for a term in excess of five (5) years
with respect to Mortgage Loans originated prior to October, 1, 2002. With
respect to Mortgage Loans originated on or after October 1, 2002, the duration
of the prepayment period shall not exceed three (3) years from the date of
the Mortgage Note unless the Mortgage Loan was modified to reduce the prepayment
period to no more than three (3) years from the date of the related
Mortgage Note and the Mortgagor was notified in writing of such reduction in
prepayment period. With respect to any Mortgage Loan that contains a provision
permitting imposition of a premium upon a prepayment prior to maturity:
(i) prior to the Mortgage Loan’s origination, the Mortgagor agreed to such
premium in exchange for a monetary benefit, including but not limited to a
rate
or fee reduction, (ii) prior to the loan’s origination, the Mortgagor was
offered the option of obtaining a mortgage loan that did not require payment
of
such a premium, (iii) the prepayment premium is disclosed to the Mortgagor
in the loan documents pursuant to applicable state, local and federal law.
This
representation and warranty is a Deemed Material Breach
Representation;
(uu) Qualified
Mortgage.
Each
Mortgage Loan is a “qualified mortgage” within Section 860G(a)(3) of
the Code;
(vv) Credit
Reporting.
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public Law
91-508) or other credit information furnished by Indymac to the Purchaser,
Indymac has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage. The Servicer will transmit full-file credit reporting data for
each Mortgage Loan pursuant to ▇▇▇▇▇▇ ▇▇▇ Guide Announcement 95-19 and that
for
each Mortgage Loan, Servicer agrees it shall report one of the following
statuses each month as follows: new origination, current, delinquent (30-,
60-,
90-days, etc.), foreclosed, or charged-off. This representation and warranty
is
a Deemed Material Breach Representation;
-28-
(ww) Doing
Business.
Indymac
and all other parties which have had any interest in the Mortgage Loan, whether
as mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which they held and disposed of such interest, were) in compliance with any
and all applicable “doing business” and licensing requirements of the laws of
the state wherein the Mortgaged Property is located;
(xx) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature, nor
does it contain any “buydown” provision which is currently in
effect;
(yy) Due-On-Sale.
The
Mortgage contains an enforceable provision for the acceleration of the payment
of the unpaid principal balance of the Mortgage Loan in the event that the
Mortgaged Property is sold or transferred without the prior written consent
of
the mortgagee thereunder;
(zz) Disclosure
Materials.
The
Mortgagor has received all disclosure materials required by applicable law
with
respect to the making of mortgage loans of the same type as the Mortgage Loan
and rescission materials required by applicable law if the Mortgage Loan is
a
Refinanced Mortgage Loan and has acknowledged receipt of such materials to
the
extent required by applicable law and such documents will remain in the Mortgage
File;
(aaa) No
Advancements.
Indymac
or any prior originator or servicer has not advanced funds, or induced,
solicited or knowingly received any advance from any party other than the
Mortgagor, directly or indirectly, for the payment of any amount due under
the
Mortgage Loan;
(bbb) Delivery
of Mortgage Documents.
With
respect to each Mortgage Loan, Indymac is in possession of a complete Collateral
File except for the documents which have been delivered to the Purchaser or
which have been submitted for recording and not yet returned;
(ccc) Lost
Note.
With
respect to each Mortgage where a lost note affidavit has been delivered in
place
of the related Mortgage Note, the related Mortgage Note is no longer in
existence;
(ddd) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms (including, without limitation, any provisions therein
relating to prepayment penalties);
-29-
(eee) Construction
or Rehabilitation of Mortgaged Property.
(i) No Mortgage Loan was made in connection with facilitating the trade-in
or exchange of a Mortgaged Property and (ii) a Mortgage Loan has a
certificate of completion if such Mortgage Loan was made in connection with
the
construction or rehabilitation of the related Mortgaged Property;
(fff) [Reserved];
(ggg) Conversion
to Fixed Interest Rate.
No
Mortgage Loan is a Convertible Mortgage Loan;
(hhh) Compliance.
Each
Mortgage Loan is in compliance with the anti-predatory lending eligibility
for
purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(iii) Balloon
Mortgage Loans.
No
Mortgage Loan is a balloon mortgage loan that has an original stated maturity
of
less than seven (7) years;
(jjj) Mortgagor
Selection.
No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy mortgagors, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt to income ratios for a lower cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified for a
for
a lower cost credit product then offered by any mortgage lending affiliate
of
the Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
related Mortgagor’s application to such affiliate for underwriting
consideration. This representation and warranty is a Deemed Material Breach
Representation;
(kkk) Underwriting
Methodology.
The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the Mortgagor’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make
timely payments on the Mortgage Loan. This representation and warranty is a
Deemed Material Breach Representation;
(lll) Points
and Fees.
No
Mortgagor was charged “points and fees” (whether or not financed) in an
amount greater than (i) 1,000 or (ii) 5% of the principal amount of such
Mortgage Loan, whichever is greater. For purposes of this representation such
5%
limitation is calculated in accordance with ▇▇▇▇▇▇ Mae’s anti-predatory lending
requirements as set forth in the ▇▇▇▇▇▇ Mae Guides, “points and fees” (x)
include origination, underwriting, broker and finder fees and charges that
the
mortgagee imposed as a condition of making the Mortgage Loan, whether they
are
paid to the mortgagee or a third party, and (y) exclude bona fide discount
points, fees paid for actual services rendered in connection with the
origination of the Mortgage Loan (such as attorneys’ fees, notaries fees and
fees paid for property appraisals, credit reports, surveys, title examinations
and extracts, flood and tax certifications, and home inspections), the cost
of
mortgage insurance or credit-risk price adjustments, the costs of title, hazard,
and flood insurance policies, state and local transfer taxes or fees, escrow
deposits for the future payment of taxes and insurance premiums, and other
miscellaneous fees and charges that, in total, do not exceed 0.25% of the
principal amount of such Mortgage Loan. This representation and warranty is
a
Deemed Material Breach Representation;
-30-
(mmm) Disclosure
of Fees and Charges.
All
fees and charges (including finance charges), whether or not financed, assessed,
collected or to be collected in connection with the origination and servicing
of
each Mortgage Loan, have been disclosed in writing to the Mortgagor in
accordance with applicable state and federal law and regulation. This
representation and warranty is a Deemed Material Breach
Representation;
(nnn) Tax
Service; Flood Insurance.
Each
Mortgage Loan is covered by a paid in full, life of loan, tax service contract
and paid in full, life of loan, flood certification contract and each of theses
contracts is assignable to the Purchaser; and
(ooo) Origination
Practices.
No
Mortgagor was encouraged or required to select a Mortgage Loan product offered
by the Mortgage Loan’s originator which is a higher cost product designed for
less creditworthy borrowers, unless at the time of the Mortgage Loan’s
origination, such Mortgagor did not qualify taking into account credit history
and debt-to-income ratios for a lower-cost credit product then offered by the
Mortgage Loan’s originator or any affiliate of the Mortgage Loan’s originator.
If, at the time of loan application, the Mortgagor may have qualified for a
lower-cost credit product then offered by any mortgage lending affiliate of
the
Mortgage Loan’s originator, the Mortgage Loan’s originator referred the
Mortgagor’s application to such affiliate for underwriting consideration. This
representation and warranty is a Deemed Material Breach
Representation.
Section
3.03 Remedies
for Breach of Representations and Warranties.
(a) Notice
of Breach.
The
representations and warranties set forth in Sections 3.01 and 3.02 shall survive
the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit
of the Purchaser, its successors and assigns, notwithstanding any restrictive
or
qualified endorsement on any Mortgage Note or Assignment of Mortgage or the
examination or failure to examine any Collateral Documents or Credit File.
Upon
discovery by either Indymac or the Purchaser of a breach of any of the foregoing
representations and warranties that materially and adversely affects the value
of one or more of the related Mortgage Loans, the party discovering such breach
shall give prompt written notice to the other.
(b) Cure
or Repurchase.
Within
sixty (60) days from the earlier of either discovery by or notice to
Indymac of a breach of a representation or warranty that materially and
adversely affects the value of a Mortgage Loan or the Mortgage Loans, Indymac
shall use its best efforts to cure such breach in all material respects, and,
if
such breach cannot be cured, Indymac shall, at the Purchaser’s option,
repurchase such Mortgage Loan at the Repurchase Price. Notwithstanding anything
to the contrary herein, (i) breach of any one of the representation and warranty
set forth in clause (uu) in Subsection 3.02 shall be deemed to
materially and adversely affect the value of the related Mortgage Loans and,
within sixty (60) days of the earlier of either discovery by or notice to
Indymac, as the case may be, of such breach, Indymac shall repurchase such
Mortgage Loan at the Repurchase Price and (ii) any breach of a Deemed Material
and Adverse Representation shall automatically be deemed to materially and
adversely affects the value of the Mortgage Loans or the interest of the
Purchaser therein. In the event that a breach shall involve any representation
or warranty set forth in Section 3.01 and such breach cannot be cured
within sixty (60) days of the earlier of either discovery by or notice to
Indymac of such breach, Indymac shall repurchase such of the Mortgage Loans
as
shall be necessary to cure such breach at the Repurchase Price.
-31-
(c) Substitution
or Repurchase.
If the
breach shall involve a representation or warranty set forth in
Section 3.02, Indymac may at the discretion of the Purchaser, rather than
repurchase the Mortgage Loan as provided above, remove such Mortgage Loan and
substitute in its place a Qualified Substitute Mortgage Loan or Loans,
provided,
however
that
with respect to a breach of any one of the representations and warranties set
forth in clauses (ee), (rr), (ss), (tt), (uu) and (vv), Indymac shall
indemnify the Purchaser, its successors and assigns, its affiliates, and their
respective directors, officers and employees, as applicable, and hold them
harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary attorneys’ fees and related costs,
judgments, and any other costs, fees and expenses that the Purchaser may sustain
in any way related to Indymac’s breach of such representations and warranties.
If Indymac elects not to substitute a Qualified Substitute Mortgage Loan, it
shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage
Loan(s) pursuant to the provisions of this Section 3.03 shall be
accomplished by deposit in the Custodial Account of the amount of the Repurchase
Price for distribution to the Purchaser on the next scheduled Remittance Date,
after deducting therefrom any amount received in respect of such repurchased
Mortgage Loan or Loans and being held in the Custodial Account for future
distribution. At the time of repurchase or substitution, the Purchaser and
Indymac shall arrange for the reassignment of such Mortgage Loan and release
of
the related Collateral File to Indymac and the delivery to Indymac of any
documents held by the Purchaser or its designee relating to such Mortgage Loan.
In the event Indymac is authorized to substitute a Qualified Substitute Mortgage
Loan for a repurchased Mortgage Loan, Indymac shall, simultaneously with such
reassignment, give written notice to the Purchaser that substitution has taken
place and identify the Qualified Substitute Mortgage Loan(s). In connection
with
any such substitution, Indymac shall be deemed to have made as to such Qualified
Substitute Mortgage Loan(s) the representations and warranties except that
all such representations and warranties set forth in this Agreement shall be
deemed made as of the date of such substitution. Indymac shall effect such
substitution by delivering to the Purchaser the Collateral Documents for such
Qualified Substitute Mortgage Loan(s). Indymac shall deposit in the Custodial
Account the Monthly Payment less the Servicing Fee due on such Qualified
Substitute Mortgage Loan(s) in the month following the date of such
substitution. Monthly Payments due with respect to Qualified Substitute Mortgage
Loans in the month of substitution shall be retained by Indymac. For the month
of substitution, distributions to the Purchaser shall include the Monthly
Payment due on any substituted Mortgage Loan in the month of substitution,
and
Indymac shall thereafter be entitled to retain all amounts subsequently received
by Indymac in respect of such substituted Mortgage Loan.
For
any
month in which Indymac substitutes a Qualified Substitute Mortgage Loan for
a
repurchased Mortgage Loan, Indymac shall determine the amount (if any) by
which the aggregate principal balance of all Qualified Substitute Mortgage
Loans
as of the date of substitution is less than the aggregate Stated Principal
Balance of all substituted Mortgage Loans (after application of scheduled
principal payments due in the month of substitution). The amount of such
shortfall shall be distributed by Indymac in the month of substitution pursuant
to Section 5.01. Accordingly, on the date of such substitution, Indymac
shall deposit from its own funds into the Custodial Account an amount equal
to
the amount of such shortfall. Notwithstanding the above, in no event shall
Indymac substitute a loan that has been placed in a trust with respect to a
securitization.
-32-
In
addition to such cure and repurchase obligations, Indymac shall indemnify the
Purchaser, its successors and assigns, its affiliates, and their respective
directors, officers and employees, as applicable, and hold the Purchaser, its
affiliates and each such person harmless against any damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion by any third party that is based on or grounded upon, or resulting
from, a breach of Indymac’s representations and warranties contained in this
Agreements.
Section
3.04 Accrual
of Cause of Action.
Any
cause
of action against Indymac relating to or arising out of the breach of any
representations and warranties made in Sections 3.01 or 3.02 shall accrue as
to
any Mortgage Loan upon (i) discovery of such breach by the Purchaser or
notice thereof by Indymac to the Purchaser, (ii) failure by Indymac to cure
such breach or substitute or repurchase such Mortgage Loan as specified above,
or (iii) demand upon Indymac by the Purchaser for compliance with the
relevant provisions of this Agreement.
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF MORTGAGE LOANS
Section
4.01 Indymac
to Act as Servicer.
Indymac
shall service and administer Mortgage Loans sold pursuant to this Agreement
in
accordance with the terms of the Servicing Agreement and shall have full power
and authority, acting alone, to do or cause to be done any and all things,
in
connection with such servicing and administration, that Indymac may deem
necessary or desirable and consistent with the terms of the Servicing
Agreement.
ARTICLE
V
COVENANTS
BY INDYMAC
Section
5.01 Indemnification
by Indymac.
Indymac
shall indemnify the Purchaser, its affiliates, and their respective directors,
officers and employees, as applicable, and hold the Purchaser, its affiliates
and each such person harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary attorneys’ fees and
related costs, judgments, and any other costs, fees and expenses that the
Purchaser may sustain in any way related to the failure of Indymac to perform
its obligations hereunder, including its obligations to service and administer
the Mortgage Loans in compliance with the terms of this Agreement.
Section
5.02 [Reserved]
-33-
Section
5.03 Merger
or Consolidation of Indymac.
Indymac
shall keep in full effect its existence, rights and franchises as a federal
savings bank under the laws of the United States or under the laws of one of
the
states thereof, and will obtain and preserve its qualification to do business
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.
Notwithstanding
anything to the contrary contained herein, any Person into which Indymac may
be
merged or consolidated, or any entity resulting from any merger, conversion
or
consolidation to which Indymac shall be a party, or any Person succeeding to
the
business of Indymac, shall be the successor of Indymac hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided,
however,
that
the successor or surviving Person shall be an institution whose deposits are
insured by FDIC or a company whose business is the origination and servicing
of
mortgage loans, unless otherwise consented to by the Purchaser, which consent
shall not be unreasonably withheld, and shall be qualified to service mortgage
loans on behalf of an Agency.
Section
5.04 Limitation
on Liability of Indymac and Others.
Neither
Indymac nor any of the officers, employees or agents of Indymac shall be under
any liability to the Purchaser for any action taken, or for refraining from
taking any action, in good faith pursuant to this Agreement, or for errors
in
judgment; provided,
however,
that
this provision shall not protect Indymac or any such person against any breach
of warranties or representations made herein, or any liability which would
otherwise be imposed by reason of any breach of the terms and conditions of
this
Agreement and, provided further,
that
this provision shall not protect Indymac or any such person against any
liability that would otherwise be imposed by reason of the willful misfeasance,
bad faith or negligence in the performance of duties or by reason of reckless
disregard of the obligations or duties hereunder. Indymac and any officer,
employee or agent of Indymac 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. Notwithstanding anything to the contrary contained in this
Agreement, unless one or more Event of Default by Indymac shall occur and shall
not have been remedied within the time limits set forth in Section 7.1 of
the Servicing Agreement, the Purchaser shall not record or cause to be recorded
an Assignment of Mortgage with the recording office. To the extent the Purchaser
records with the recording office as permitted herein an Assignment of Mortgage
which designates the Purchaser as the holder of record of the Mortgage, the
Purchaser agrees that it shall (i) provide Indymac with immediate notice of
any action with respect to the Mortgage or the related Mortgaged Property and
ensure that the proper department or person at Indymac receives such notice;
and
(ii) immediately complete, sign and return to Indymac any document
reasonably requested by Indymac to comply with its servicing obligations,
including without limitation, any instrument required to release the Mortgage
upon payment in full of the obligation or take any other action reasonably
required by Indymac. The Purchaser further agrees that Indymac shall have no
liability for the Purchaser’s failure to comply with the subsections (i) or
(ii) in the foregoing sentence. Indymac shall have no liability to the
Purchaser and 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 expenses or liability; provided,
however,
that
Indymac may, with the consent of the Purchaser, undertake any such action which
it may deem necessary or desirable to protect the Purchaser’s interests in the
Mortgage Loans. In such event, the legal expenses and costs of such action
and
any liability resulting therefrom shall be expenses, costs and liabilities
for
which the Purchaser will be liable, and Indymac shall be entitled to be
reimbursed therefor from the Purchaser upon written demand except when such
expenses, costs and liabilities are subject to Indymac’s indemnification under
Sections 3.03 and 5.01.
-34-
Section
5.05 No
Transfer of Servicing.
Indymac
acknowledges that the Purchaser acts in reliance upon Indymac’s independent
status, the adequacy of its servicing facilities, plant, personnel, records
and
procedures, its integrity, reputation and financial standing and the continuance
thereof. Without in any way limiting the generality of this Section, Indymac
shall not assign this Agreement or the servicing rights hereunder, without
the
prior written approval of the Purchaser, which consent may not be unreasonably
withheld.
ARTICLE
VI
MISCELLANEOUS
Section
6.01 Notices.
All
demands, notices and communications required to be provided hereunder shall
be
in writing and shall be deemed to have been duly given if mailed, by registered
or certified mail, postage prepaid, and return receipt requested, or, if by
other means, when received by the other party at the address as
follows:
|
(i)
|
to
Indymac:
|
IndyMac
Bank, F.S.B
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Secondary Marketing
|
(ii)
|
the
Purchaser:
|
To
the
address and contact set forth in the related Purchase Confirmation
or
such
other address as may hereafter be furnished to the other party by like notice.
Any such demand, notice or communication hereunder shall be deemed to have
been
received on the date delivered to or received at the premises of the addressee
(as evidenced, in the case of registered or certified mail, by the date noted
on
the return receipt).
Section
6.02 Sale
Treatment.
It
is the
express intention of the parties that the transactions contemplated by this
Agreement be, and be construed as, a sale of the Mortgage Loans by Indymac
and
not a pledge of the Mortgage Loans by Indymac to the Purchaser to secure a
debt
or other obligation of Indymac. Consequently, the sale of each Mortgage Loan
shall be reflected as a sale on Indymac’s business records, tax returns and
financial statements. Accordingly, Indymac and the Purchaser shall each treat
the transaction for federal income tax purposes as a sale by Indymac, and a
purchase by the Purchaser, of the Mortgage Loans.
-35-
Section
6.03 Exhibits.
The
Exhibits to this Agreement and each Trade Confirmation and Purchase Confirmation
executed by Indymac and the Purchaser are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section
6.04 General
Interpretive Principles.
For
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any gender herein
shall be deemed to include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to “Articles,” “Sections,” “Subsections,” “Paragraphs,” and other
Subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this
Agreement;
(d) reference
to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision;
(f) the
term
“include” or “including” shall mean without limitation by reason of enumeration;
and
(g) reference
to the Transaction Documents or any other document referenced herein shall
include all exhibits, schedules or other supplements thereto.
Section
6.05 Reproduction
of Documents.
This
Agreement and all documents relating thereto, including (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements,
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
-36-
Section
6.06 Further
Agreements.
Indymac
shall execute and deliver to the Purchaser and the Purchaser shall be required
to execute and deliver to Indymac such reasonable and appropriate additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Agreement.
Section
6.07 Assignment
of Mortgage Loans by the Purchaser; Securitization Transactions.
(a) The
Purchaser may, subject to the terms of this Agreement, sell and transfer one
or
more of the Mortgage Loans; provided,
however,
that
the transferee will not be deemed to be the Purchaser hereunder unless such
transferee shall agree in writing to be bound by the terms of this Agreement
and
an original counterpart of the document evidencing such agreement shall have
been executed by the Purchaser and the transferee and delivered to Indymac.
Notwithstanding the foregoing, no transfer shall be effective if such transfer
would result in there being more than five (5) “Purchasers” outstanding
hereunder with respect to any Mortgage Loan Package. Any trust to which Mortgage
Loans may be transferred pursuant to Section 6.07(b) hereunder shall
constitute a single Purchaser for the purposes of the preceding
sentence.
(b) The
Purchaser and Indymac agree that with respect to some or all of the Mortgage
Loans, the Purchaser, at its sole option, but subject to the limitations set
forth in Section 6.07(a) hereof, may effect Securitization
Transactions and Whole Loan Transfer, retaining Indymac as the servicer thereof
or subservicer if a master servicer is employed, or as applicable the
“seller/servicer.” On the related Reconstitution Date, the Mortgage Loans
transferred shall cease to be covered by this Agreement; provided,
however,
that,
in the event that any Mortgage Loan transferred pursuant to this
Section 6.07 is rejected by the related transferee, Indymac shall continue
to service such rejected Mortgage Loan on behalf of the Purchaser in accordance
with the terms and provisions of this Agreement. Indymac shall cooperate with
the Purchaser in connection with each Securitization Transaction and Whole
Loan
Transfer in accordance with this Section 6.07. In connection therewith
Indymac shall:
(i) negotiate
in good faith and execute any seller/servicer agreement reasonably required
to
effectuate the Securitization Transaction and Whole Loan Transfer, provided
such
agreement creates no greater obligation or cost on the part of Indymac than
otherwise set forth in this Agreement, and provided further
that
Indymac shall be entitled to a servicing fee under that agreement at a rate
per
annum no less than the Servicing Fee Rate; and
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(ii) provide
as applicable:
(A) information
pertaining to Indymac of the type and scope customarily included in offering
documents for residential mortgage-backed securities transactions involving
multiple loan originators; and
(B) such
opinions of counsel, letters from auditors, and certificates of public officials
or officers of Indymac as are reasonably believed necessary by the trustee,
any
rating agency or the Purchaser, as the case may be, in connection with such
Securitization Transaction and Whole Loan Transfer. The Purchaser shall pay
all
reasonable third party costs associated with the preparation of the information
described in clause (ii)(A) above and the delivery of any opinions, letters
or certificates described in this clause (ii)(B). Indymac shall not be required
to execute any seller/servicer agreement unless a draft of the agreement is
provided to Indymac at least 10 days before the Reconstitution
Date.
(c) In
connection with any (a) Securitization Transaction and (b) Whole Loan
Transfer, Indymac shall restate to the Purchaser and, with respect to
(a) above, to the applicable depositor (the “Depositor”),
trustee (the “Trustee”) and
the master servicer (the “Master
Servicer”),
all
representations and warranties contained in this Agreement, with respect to
the
Mortgage Loans as of the Closing Date and with respect to Indymac itself as
of
the closing date of each Whole Loan Transfer or Securitization
Transaction.
(d) In
connection with any Securitization Transaction and Whole Loan Transfer, Indymac
shall indemnify, defend and hold harmless the Purchaser, the Depositor, the
Trustee, the Master Servicer, their respective affiliates, and their respective
directors, officers and employees from and against any and all losses, claims,
expenses, damages, liabilities, reasonable and necessary attorneys’ fees and
related costs, judgments, and any other costs to which any such party may be
subject to as a result of any untrue statement of any material fact contained
in
any information (such information, the “Indymac
Information”) prepared
and furnished to the Purchaser, the Depositor, the Trustee and the Master
Servicer by Indymac for inclusion in any related offering document or prospectus
(collectively, “Offering
Materials”),
or
arise out of, or are based upon, any omission in the Indymac Information
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and will reimburse to all such parties,
as
applicable, for damages or expenses reasonably incurred by it; provided,
however,
that
Indymac shall be liable only insofar as such untrue statement or omission
relates solely to the Indymac Information in the Offering Materials furnished
to
any such party by Indymac specifically for inclusion in the Prospectus
Supplement; and
(e) All
Mortgage Loans not sold or transferred pursuant to Securitization Transactions
or Whole Loan Transfer shall remain subject to this Agreement and shall continue
to be serviced in accordance with the terms of this Agreement and with respect
thereto this Agreement shall remain in full force and effect.
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Section
6.08 Conflicts
between Transaction Documents.
In
the
event of any conflict, inconsistency or ambiguity between the terms and
conditions of this Agreement, the Servicing Agreement, and either the related
Trade Confirmation or the related Purchase Confirmation, the terms of the
related Purchase Confirmation shall control. In the event of any conflict,
inconsistency or ambiguity between the terms and conditions of the Trade
Confirmation and the Purchase Confirmation, the terms of the Purchase
Confirmation shall control.
Section
6.09 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements entered into and wholly performed
within that state.
Section
6.10 Severability
Clause.
Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
which is held to be void or unenforceable shall be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof. If the invalidity of
any
part, provision, representation or warranty of this Agreement shall deprive
any
party of the economic benefit intended to be conferred by this Agreement, the
parties shall negotiate, in good-faith, to an amendment to this Agreement which
places each party in the same or as economic position as each party would have
been in except for such invalidity.
Section
6.11 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by Indymac
and the Purchaser and the respective permitted successors and assigns of Indymac
and the Purchaser.
Section
6.12 Relationship
of Parties.
Nothing
herein contained shall be deemed or construed to create a partnership or joint
venture between the parties hereto and the services of Indymac shall be rendered
as an independent contractor and not as agent for the Purchaser.
Section
6.13 Solicitation
of Mortgagor.
From
and
after the Closing Date, Indymac hereby agrees that it will not take any action
or permit or cause any action to be taken by any of its agents or affiliates,
or
by any independent contractors or independent mortgage brokerage companies
on
its behalf, to personally, by telephone or mail, solicit the mortgagor under
any
Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided,
that
Indymac may solicit any mortgagor from whom it or its servicing affiliate has
received a request for verification of mortgage, a request for demand for
payoff, a mortgagor initiated written or verbal communication indicating a
desire to prepay the related Mortgage Loan, or the mortgagor initiates a title
search, provided further,
it is
understood and agreed that promotions undertaken by Indymac or any of its
affiliates which (i) concern optional insurance products or other
additional projects or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspapers, radio and television advertisements shall not
constitute solicitation nor is Indymac prohibited from responding to unsolicited
requests or inquiries made by a mortgagor or an agent of a mortgagor.
Notwithstanding the foregoing, the following solicitations, if undertaken by
Indymac or any affiliate of Indymac, shall not be prohibited:
(i) solicitations that are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists and newspaper, radio, television and other mass media
advertisements and (ii) borrower messages included on, and statement
inserts provided with, the monthly statements sent to mortgagors; provided,
however,
that
similar messages and inserts are sent to borrowers of other mortgage loans
serviced by Indymac.
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Section
6.14 Confidentiality.
Indymac,
the Purchaser and their agents shall keep confidential and shall not divulge
to
any person, other than affiliates, without the written consent of the other
party, the terms of this agreement, except (i) to the extent required by
law or judicial order or to enforce its rights or remedies under this agreement,
the Servicing Agreement, or any applicable agreements, (ii) to the extent
such information enters into the public domain other than through the wrongful
act of Indymac or the Purchaser, as the case may be, (iii) as is necessary
in working with legal counsel, auditors, rating agencies, agents, taxing
authorities or other governmental agencies, or (iv) in order to disclose to
any and all persons, without limitation of any kind, the structure and tax
aspects of this sale or any transaction and all materials of any kind (including
opinions or other tax analyses) that are provided to the Purchaser related
to such sale, transaction and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the
Treasury Regulations promulgated under Section 6011 of the Internal Revenue
Code of 1986.
Moreover,
Indymac understands and agrees that this Agreement, the Servicing Agreement,
any
other agreements executed in connection with the sale and servicing contemplated
hereunder, any agreements executed in connection with a securitization of the
Mortgage Loans, and any offering circulars or other disclosure documents
produced in connection with such securitization are confidential and proprietary
to the Purchaser, and Indymac agrees to hold such documents confidential and
not
to divulge such documents to anyone except (a) to the extent required by
law or judicial order or to enforce its rights or remedies under this letter
agreement or the Agreements, (b) to the extent such information enters into
the public domain other than through the wrongful act of Indymac (c) as is
necessary in working with legal counsel, auditors, agents, taxing authorities
or
other governmental agencies, or (d) in order to disclose to any and all
persons, without limitation of any kind, the structure and tax aspects of this
sale or such securitization and all materials of any kind (including opinions
or
other tax analyses) that are provided to the Purchaser related to such
sale, securitization and tax aspects, all as contemplated by
Section 1.6011-4T(b)(3) (or any successor provision) of the
Treasury Regulations promulgated under Section 6011 of the Internal Revenue
Code of 1986. The rights and obligations set forth in this paragraph shall
survive the Closing Date and shall not merge into the closing documents but
shall be independently enforceable by the parties hereto.
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Section
6.15 Entire
Agreement.
This
Agreement and the related Trade Confirmation and Purchase Confirmation
constitute the entire understanding between the parties hereto with respect
to
each Mortgage Loan Package and supersede all prior or contemporaneous oral
or
written communications regarding same. Indymac and the Purchaser understand
and
agree that no employee, agent or other representative of Indymac or the
Purchaser has any authority to bind such party with regard to any statement,
representation, warranty or other expression unless said statement,
representation, warranty or other expression is specifically included within
the
express terms of this Agreement or the related Trade Confirmation or Purchase
Confirmation. Neither this Agreement nor the related Trade Confirmation or
Purchase Confirmation shall be modified, amended or in any way altered except
by
an instrument in writing signed by both parties.
ARTICLE
VII
COMPLIANCE
WITH REGULATION AB
Section
7.01 Intent
of the Parties; Reasonableness.
The
Purchaser and Indymac acknowledge and agree that the purpose of Article VII
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, Indymac
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.
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). Indymac 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, Indymac 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 Indymac,
any Third-Party Originator 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.
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The
Purchaser (including any of its assignees or designees) shall cooperate
with Indymac by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Purchaser’s reasonable judgment, to comply with Regulation AB.
Section
7.02 Additional
Representations and Warranties of Indymac.
(a) Indymac
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 7.03 that, except as disclosed in writing to the Purchaser or
such Depositor prior to such date: (i) Indymac 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 Indymac; (ii) Indymac 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 Indymac as
servicer has been disclosed or reported by Indymac; (iv) no material
changes to Indymac’s policies or procedures with respect to the servicing
function it will perform under the Servicing 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 Indymac’s financial
condition that could have a material adverse effect on the performance by
Indymac of its servicing obligations under the Servicing Agreement or any
Reconstitution Agreement; (vi) there are no material legal or governmental
proceedings pending (or known to be contemplated) against Indymac, any
Subservicer or any Third-Party Originator; and (vii) there are no
affiliations, relationships or transactions relating to Indymac, any Subservicer
or any Third-Party Originator 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 7.03, Indymac shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such
representation and warranty is not accurate as of the date of such request,
provide reasonably adequate disclosure of the pertinent facts, in writing,
to
the requesting party.
Section
7.03 Information
to Be Provided by Indymac.
In
connection with any Securitization Transaction, Indymac shall (i) within
five Business Days following request by the Purchaser or any Depositor, provide
to the Purchaser and such Depositor (or, as applicable, cause each Third-Party
Originator 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) and (b) of this Section, and (ii) as
promptly as practicable following notice to or discovery by Indymac, 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.
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(a) If
so
requested by the Purchaser or any Depositor, Indymac shall provide such
information regarding (i) Indymac, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, meeting the requirements of Items
1103(a)(1), 1105, 1110, 1117 and 1119 of Regulation AB. Such information shall
include, at a minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material, in the good faith judgment of the Purchaser
or
any Depositor, to an analysis of the performance of the Mortgage Loans,
including the originators’ credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other information
as the Purchaser or any Depositor may reasonably request for the purpose of
compliance with Item 1110(b)(2) of Regulation AB;
(C) a
description of any material legal or governmental proceedings pending (or known
to be contemplated) against Indymac and each Third-Party Originator;
and
(D) a
description of any affiliation or relationship between Indymac, each Third-Party
Originator and any of the following parties to a Securitization Transaction,
as
such parties are identified to Indymac by the Purchaser or any Depositor in
writing in advance of such Securitization Transaction:
|
(1)
|
the
sponsor;
|
|
(2)
|
the
depositor;
|
|
(3)
|
the
issuing entity;
|
|
(4)
|
any
servicer;
|
|
(5)
|
any
trustee;
|
|
(6)
|
any
originator;
|
|
(7)
|
any
significant obligor;
|
|
(8)
|
any
enhancement or support provider;
and
|
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|
(9)
|
any
other material transaction party.
|
(b) If
so
requested by the Purchaser or any Depositor, Indymac shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans, as reasonably identified by the Purchaser as provided
below) originated by (i) Indymac, if Indymac is an originator of
Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static Pool
Information shall be prepared by Indymac (or Third-Party Originator) on the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. To the extent that there is reasonably
available to Indymac (or Third-Party Originator) Static Pool Information
with respect to more than one mortgage loan type, the Purchaser or any Depositor
shall be entitled to specify whether some or all of such information shall
be
provided pursuant to this paragraph. The content of such Static Pool Information
may be in the form customarily provided by Indymac, and need not be customized
for the Purchaser or any Depositor. Such Static Pool Information for each
vintage origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the life of
the
mortgage loans included in the vintage origination year or prior securitized
pool. The most recent periodic increment must be as of a date no later than
one
hundred thirty-five (135) days prior to the date of the prospectus or other
offering document in which the Static Pool Information is to be included or
incorporated by reference. The Static Pool Information shall be provided in
an
electronic format that provides a permanent record of the information provided,
such as a portable document format (pdf) file, or other such electronic
format reasonably required by the Purchaser or the Depositor, as
applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), Indymac shall provide corrected Static Pool Information to the
Purchaser or any Depositor, as applicable, in the same format in which Static
Pool Information was previously provided to such party by Indymac.
If
so
requested by the Purchaser or any Depositor, Indymac shall provide (or, as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Purchaser or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to Indymac’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Purchaser or such Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Purchaser or such Depositor shall designate, which may include,
by way of example, any Sponsor, any Depositor and any broker dealer acting
as
underwriter, placement agent or initial purchaser with respect to a
Securitization Transaction. Any such statement or letter may take the form
of a
standard, generally applicable document accompanied by a reliance letter
authorizing reliance by the addressees designated by the Purchaser or such
Depositor.
(c) [Reserved]
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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, Indymac shall (or shall cause each Third-Party
Originator to) (i) notify the Purchaser and any Depositor in writing
of (A) any material litigation or governmental proceedings pending against
Indymac or any Third-Party Originator and (B) any affiliations or
relationships that develop following the closing date of a Securitization
Transaction between Indymac or any Third-Party Originator 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.
Section
7.04 Indemnification;
Remedies.
(a) Indymac
shall indemnify the Purchaser, each affiliate of the Purchaser, the Depositor
and each of the following parties participating in a Securitization Transaction:
each sponsor and issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with
respect to such Securitization Transaction, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act
with respect to such Securitization Transaction; each broker dealer acting
as
underwriter, placement agent or initial purchaser, each Person who controls
any
of such parties or the Depositor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
(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 under this Article VII by or on behalf of Indymac, or provided in
written or electronic form under this Article VII by or on behalf of any
Third-Party Originator (collectively, the “Seller
Information”),
or
(B) the omission or alleged omission to state in Seller Information a
material fact required to be stated in Seller 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 Seller
Information and not to any other information communicated in connection with
a
sale or purchase of securities, without regard to whether Seller Information
or
any portion thereof is presented together with or separately from such other
information;
(ii) any
failure by Indymac or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Article VII; or
(iii) any
breach by Indymac of a representation or warranty set forth in
Section 7.02(a) or in a writing furnished pursuant to
Section 7.02(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 Indymac of a representation or warranty
in a writing furnished pursuant to Section 7.02(b) to the extent made
as of a date subsequent to such closing date.
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In
the
case of any failure of performance described in clause (a)(ii) of this
Section, Indymac 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 Indymac or any Third-Party
Originator.
(b) (i) Any
failure by Indymac or any Third-Party Originator to deliver any information,
report, certification, accountants’ letter or other material when and as
required under this Article VII, or any breach by Indymac of a representation
or
warranty set forth in Section 7.02(a) or in a writing furnished
pursuant to Section 7.02(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 Indymac of a representation
or warranty in a writing furnished pursuant to Section 7.02(b) to the
extent made as of a date subsequent to such closing date, shall immediately
and
automatically, without notice or grace period, constitute an Event of Default
with respect to Indymac 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 Indymac as servicer
under the Servicing 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 Indymac;
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 Indymac as servicer, such provision
shall be given effect.
(SIGNATURE
PAGE TO FOLLOW)
-46-
IN
WITNESS WHEREOF, Indymac and the Purchaser have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the date
first above written.
INDYMAC
BANK, F.S.B.,
the
Seller
By:
______________________________
Name:
Title:
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
the
Purchaser
By:
▇▇▇▇▇▇▇
Sachs Real Estate Funding Corp.,
General
Partner
By:
______________________________
Name:
Title:
EXHIBIT
A
COLLATERAL
DOCUMENTS
|
1.
|
Mortgage
Note:
The original executed Mortgage Note endorsed, “Pay to the order of
______________, without recourse”, or as otherwise directed by the
Purchaser, and signed in the name of the Seller by an officer of
the
Seller, or a lost note affidavit with a copy of the original mortgage
note
attached; the Mortgage Note shall include all intervening original
endorsements showing a complete chain of title from the originator
to the
Seller;
|
|
2.
|
Assignment
of Mortgage:
Unless the Mortgage Loan is a MERS Mortgage Loan, the original Assignment
of Mortgage in blank.
|
|
3.
|
Guarantee:
Personal endorsement and/or guaranty agreements for all non individual
Mortgage Loans (corporations, partnerships, trusts, estates,
etc.).
|
|
4.
|
Mortgage:
The original executed Mortgage, or a certified copy thereof, in either
case with evidence of recording noted thereon; the standard ▇▇▇▇▇▇
▇▇▇/▇▇▇▇▇▇▇ Mac Condominium Rider or PUD Rider must be attached to
the
mortgage if the mortgaged property is a condominium or is located
in a
PUD.
|
|
5.
|
Modifications:
Originals of all modification agreements, or certified copies thereof,
in
either case with evidence of recording noted thereon if recordation
is
required to maintain the lien of the Mortgage or is otherwise required,
or, if recordation is not so required, an original or copy of any
such
modification agreement.
|
|
6.
|
Intervening
Assignments:
Originals of any intervening assignments of the mortgage necessary
to show
a complete chain of title from the original mortgagee to the Seller,
or
certified copies thereof, in either case with evidence of recording
noted
thereon; provided,
that such intervening assignments may be in the form of blanket
assignments, a copy of which, with evidence of recording noted thereon,
shall be acceptable.
|
|
7.
|
Cooperative
Loans:
With respect to each Cooperative Loan: (i) an original copy of the
Cooperative Lease naming the Mortgagor, as tenant, or an original
copy of
the assignment of the Cooperative Lease to Mortgagor together with
the
original copy of all intervening assignments showing a complete and
unbroken chain of title from the original tenant to Mortgagor and
an
original undated assignment, in blank, of the Cooperative Lease executed
by Mortgagor; (ii) the original stock certificate in the name of the
Mortgagor together with an undated original stock power relating
to such
stock certificate executed in blank by the Mortgagor; (iii) a fully
executed original recognition agreement in substantially the same
form as
a standard “AZTECH” form and the original assignment thereof from Indymac
to the Purchaser together with the original copy of all intervening
assignments showing a complete and unbroken chain of title from the
originator of the Mortgage Loan to the Purchaser; (iv) copies of the
UCC-1 financing statement naming the originator of the Cooperative
Loan,
as secured party, with evidence of recording thereon and, if applicable,
the executed UCC-3 financing statements (Assignment) or other
appropriate UCC financing statements required by applicable state
law
evidencing a complete and unbroken chain of title from the originator
of
the Cooperative Loan to Indymac, with evidence of recording thereon,
(v) an executed UCC-3 financing statement (Assignment), or other
appropriate UCC financing statement required by applicable state
law,
evidencing the assignment by Indymac to the Purchaser of its interest
in
the Cooperative Loan, with evidence of recording thereon and (vi) a
consent from the cooperative corporation in connection with the
Mortgagor’s acquisition of the coop
apartment.
|
A-1
|
8.
|
Power
of Attorney:
To the extent applicable, (x) an original power of attorney, or a
certified copy thereof, in either case with evidence of recordation
thereon if necessary to maintain the lien on the Mortgage or if the
document to which such power of attorney relates is required to be
recorded, or, if recordation is not so required, an original or copy
of
such power of attorney, and (y) an original or copy of any surety
agreement or guaranty agreement.
|
|
9.
|
Title
Insurance:
The original or copy of a policy of title insurance, a certificate
of
title, or attorney’s opinion of title (accompanied by an abstract of
title), as the case may be, with respect to each Mortgage
Loan.
|
|
10.
|
Assumptions:
for each Mortgage Loan with respect to which the borrower’s name as it
appears on the note does not match the borrower’s name on the Mortgage
Loan Schedule, one of the following: (i) the original of the
assumption agreement, or a certified copy thereof, in either case
with
evidence of recording thereon if required to maintain the lien of
the
mortgage or if otherwise required, or, if recordation is not so required,
an original or copy of such assumption agreement; or (ii) a copy of a
marriage certificate, court order, decree or other document evidencing
that the two different names refer to the same
person.
|
A-2
EXHIBIT
B
FORM
OF PURCHASE CONFIRMATION
[INDYMAC
LETTERHEAD]
[DATE]
▇▇▇▇▇▇▇
Sachs Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
Re:
|
Purchase
Confirmation ($x.xmm) (Deal No.
xxxx-xxx)
|
Ladies
and Gentlemen:
This
purchase confirmation (the “Purchase
Confirmation”) between
IndyMac Bank, F.S.B.,
(“Indymac”) and
▇▇▇▇▇▇▇ Sachs Mortgage Company (“Purchaser”) sets
forth our agreement pursuant to which Purchaser is purchasing, and Indymac
is
selling, on a servicing-retained basis, those certain mortgage loans identified
in Exhibit A hereto and more particularly described herein (the “Mortgage
Loans”).
The
purchase, sale and servicing of the Mortgage Loans as contemplated herein shall
be governed by that certain Second Amended and Restated Master Mortgage Loan
Purchase Agreement dated as of March 1, 2006, between Indymac and Purchaser
(as
amended herein and otherwise, the “Agreement”).
By
executing this Purchase Confirmation, each of Indymac and Purchaser again makes,
with respect to itself and each Mortgage Loan, as applicable, all of the
covenants, representations and warranties made by each such party in the
Agreement, except as the same may be amended by this Purchase
Confirmation.
All
exhibits hereto are incorporated herein in their entirety. In the event there
exists any inconsistency between the Agreement and this Purchase Confirmation,
the latter shall be controlling notwithstanding anything contained in the
Agreement to the contrary. All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the
Agreement.
1. Assignment
and Conveyance of Mortgage Loans.
Upon
Purchaser’s payment of the Purchase Proceeds in accordance with
Section 2.08 of the Agreement, Indymac shall sell, transfer, assign and
convey to Purchaser, without recourse, but subject to the terms of the Purchase
Confirmation and the Agreement, all of the right, title and interest of Indymac
in and to the Mortgage Loans, excluding the servicing rights relating thereto.
Each Mortgage Loan shall be serviced by Indymac pursuant to the terms of the
Agreement.
B-1
2. Defined
Terms.
As used
in the Agreement, the following defined terms shall have meanings set forth
below with respect to the related Mortgage Loan Package.
(a) Closing
Date:
[DATE].
(b) Cut-off
Date:
[DATE].
(c) Cut-off
Date Balance:
(d) [Index:
On each
Interest Adjustment Date, the applicable index rate shall be a rate per annum
equal to [the weekly average yield on U.S. Treasury securities adjusted to
a
constant maturity of one year, as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15] [the average of
interbank offered rates for six-month U.S. dollar denominated deposits in the
London market (LIBOR), as published [in the Wall Street Journal] [by ▇▇▇▇▇▇
▇▇▇]
[the 11th District Cost of Funds as made available by the Federal Home Loan
Bank] [the weekly average yield on certificates of deposit adjusted to a
constant maturity of six months as published by the Board of Governors of the
Federal Reserve System in Statistical Release No. H.15 or a similar
publication.]]
(e) Missing
Credit Documents:
As set
forth in Exhibit [C] hereto.
Notwithstanding
anything contained in Section 2.04 of the Agreement to the contrary,
Indymac’s obligation to repurchase from the Purchaser the Mortgage Loan related
to a Missing Credit Document shall occur only in the event of a default by
a
Mortgagor or any material impairment of the Mortgaged Property directly arising
a breach of Indymac’s obligation to deliver the Missing Credit Document within
the time specified in Section 2.04 of the Agreement.
(f) Pending
Mortgage Loans:
As set
forth in Exhibit [C] hereto.]
(g) Purchase
Proceeds:
With
respect to [the Mortgage Loans] [each Mortgage Loan], and as set forth in
Exhibit [A] and Exhibit [B] hereto, the sum of (a) the product of
(i) the Cut-off Date Balance of [such Mortgage Loan] [such Mortgage Loans],
and (ii) the purchase price percentage set forth in Exhibit [A] hereto for
such [Mortgage Loan] [Mortgage Loans], and (b) accrued interest from the
Cut-off Date through the day prior to the Closing Date, inclusive.
(h) Servicing
Fee Rate:
[0.25%]
[0.375%] [With respect to the period prior to the initial Interest Adjustment
Date, [0.25]% and, thereafter, [0.375]%].
3. Description
of Mortgage Loans.
Each
Mortgage Loan complies with the specifications set forth below in all material
respects.
(a) Loan
Type:
Each
Mortgage Loan is a [Adjustable Rate] [Balloon] [Fixed Rate] Mortgage
Loan.
(b) Lien
Position:
Each
Mortgage Loan is secured by a perfected [first] [second] lien
Mortgage.
B-2
(c) Underwriting
Criteria:
Each
Mortgage Loan [was underwritten generally in accordance with Indymac’s credit
underwriting guidelines in effect at the time such Mortgage Loan was originated]
[conforms to the ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac mortgage eligibility criteria (as
such criteria applies to Indymac) and is eligible for sale to, and
securitization by, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac] [at the time of origination was
underwritten to guidelines which are consistent with an institutional
investor-quality mortgage loan].
B-3
Kindly
acknowledge your agreement to the terms of this Purchase Confirmation by signing
in the appropriate space below and returning this Purchase Confirmation to
the
undersigned. Telecopy signatures shall be deemed valid and binding to the same
extent as the original.
|
Sincerely,
|
Agreed
to and Accepted by:
|
|
INDYMAC
BANK, F.S.B.,
|
▇▇▇▇▇▇▇
SACHS MORTGAGE COMPANY
|
|
By:
_____________________________
Name:
Title:
|
By:
_____________________________
Name:
Title:
|
B-4
EXHIBIT
A
to
PURCHASE
CONFIRMATION
MORTGAGE
LOAN SCHEDULE
(attached)
B-A-1
EXHIBIT
B
to
PURCHASE
CONFIRMATION
CALCULATION
OF PURCHASE PROCEEDS
(attached)
B-B-1
EXHIBIT
C
to
PURCHASE
CONFIRMATION
MISSING
CREDIT DOCUMENTS
|
LOAN
COUNT
|
LOAN
NUMBER
|
DOCUMENT
|
||
|
1.
|
||||
|
2.
|
||||
|
3.
|
||||
|
4.
|
||||
|
5.
|
B-C-1
EXHIBIT
D
to
PURCHASE
CONFIRMATION
PENDING
MORTGAGE LOANS
|
LOAN
COUNT
|
LOAN
NUMBER
|
DOCUMENT
|
||
|
1.
|
||||
|
2.
|
||||
|
3.
|
||||
|
4.
|
||||
|
5.
|
▇-▇-▇
▇▇▇▇▇▇▇
▇
[▇▇▇▇▇▇▇▇]
▇-▇
▇▇▇▇▇▇▇
▇
FORM
OF TRADE CONFIRMATION
[INDYMAC
LETTERHEAD]
[DATE]
▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
| Re: |
Sale
of $[AMOUNT] Million of Mortgage Loans to ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage
Company (Deal No. yrmm-xxx)
|
Ladies
and Gentlemen:
This
Trade Confirmation confirms the agreement between ▇▇▇▇▇▇▇ Sachs Mortgage Company
(“Purchaser”) and
IndyMac Bank, F.S.B. (“Indymac”) pursuant
to which Purchaser has agreed to purchase, and Indymac has agreed to sell,
those
certain mortgage loans [identified] [summarized] in Exhibit A hereto (the
“Mortgage
Loans”),
subject to the terms set forth herein.
|
Closing
Date:
|
_________
__, [year] [, provided,
however,
that the parties shall use their best efforts to consummate the
transaction prior to [DATE].
|
|
Commitment
Amount:
|
$______________.
|
|
Purchase
Price:
|
$______________.
|
|
Percentage:
|
____%,
subject to adjustment as set forth in Exhibit A. [Loan-level pricing
as
set forth in Exhibit A.]
|
|
Product:
|
[Jumbo]
[“A”] [“A-”] [“Alt A”] [Sub-prime] [Conforming] [fixed] [(x/1) Index
adjustable] rate mortgage loans]. (undefined terms should not be
capitalized)
|
|
Underwriting
Criteria:
|
|
|
Servicing
Rights:
|
RETAINED:
Retained by Indymac and serviced on a [scheduled/scheduled]
[actual/actual] [scheduled][actual] basis for the servicing fee rate
[equal to FEE% per annum][set forth in Exhibit A [for each Mortgage
Loan]]. [ With respect to the period prior to the initial Interest
Adjustment Date, 0.25% and, thereafter,
0.375%].
|
D-1
|
Prepayment
Penalties:
|
[Indymac]
[Purchaser] shall be entitled to any penalties resulting from the
prepayment of any Mortgage Loans by the related
mortgagor(s).
|
|
Documentation:
|
[Assignment
of a [type of agreement]] [Industry standard purchase and servicing
agreement.]
|
|
Conditions:
|
[Review
of Mortgage Loans by Purchaser to confirm conformance with this Trade
Confirmation. Indymac may, at its option, elect to substitute comparable
mortgage loans for any Mortgage Loans rejected by Purchaser pursuant
to
the preceding sentence.]
|
|
[Indymac’s
sale of the Mortgage Loans is expressly subject to (a) the review of
the Mortgage Loans by Purchaser to confirm conformance with the Trade
Confirmation, and (b) purchase of the Mortgage Loans by Indymac on or
before the Closing Date from the current owner of the Mortgage Loans
(the
“Current
Owner”).
If either of the foregoing conditions are not satisfied, Indymac
shall
have no liability to Purchaser.]
|
|
|
Non-Circumvent:
|
Indymac
and Purchaser understand and agree that Indymac may introduce the
owner of
the Mortgage Loans to Purchaser, that the Current Owner is a customer
of
Indymac and that such relationship of Indymac is confidential. Purchaser
agrees, with respect to the Current Owner, Purchaser will not, for
the
purpose of purchasing other mortgage loans [for a period of one year
from
the Closing Date], communicate with or purchase such other mortgage
loans
from the Current Owner unless the Current Owner has had previous
business
dealings (other than any transactions involving Indymac) with the
Current Owner in a similar context.
|
D-2
Please
acknowledge your agreement to the terms and conditions of this Trade
Confirmation by signing in the appropriate space below and returning a copy
of
the same to the undersigned. Telecopy signatures shall be deemed valid and
binding to the same extent as the original.
|
Sincerely,
|
Agreed
to and Accepted by:
|
|
INDYMAC
BANK, F.S.B.,
|
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY
|
|
By:
________________________
Name:
[________]
Title:
[Executive Vice President]
|
By:
________________________
Name:
Title:
|
D-3
EXHIBIT
A
MORTGAGE
LOAN SCHEDULE AND PRICING INFORMATION
(attached)
D-A-1
EXHIBIT
B
UNDERWRITING
GUIDELINES
(attached)
D-B-1
EXHIBIT
E
CONTENTS
OF EACH MORTGAGE FILE
(a) Copies
of
the Mortgage Loan Documents.
(b) Residential
loan application.
(c) Mortgage
Loan closing statement.
(d) Verification
of employment and income, if required.
(e) Verification
of acceptable evidence of source and amount of down payment.
(f) Credit
report on Mortgagor, in a form acceptable to either ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇
Mac.
(g) Residential
appraisal report.
(h) Photograph
of the Mortgaged Property.
(i) Survey
of
the Mortgaged Property, unless a survey is not required by the title
insurer.
(j) Copy
of
each instrument necessary to complete identification of any exception set forth
in the exception schedule in the title policy, i.e., map or plat, restrictions,
easements, home owner association declarations, etc.
(k) Copies
of
all required disclosure statements.
(l) If
applicable, termite report, structural engineer’s report, water potability and
septic certification.
(m) Sales
Contract, if applicable.
(n) The
Primary Mortgage Insurance Policy or certificate of insurance or electronic
notation of the existence of such policy, where required pursuant to the
Agreement.
(o) Evidence
of electronic notation of the hazard insurance policy, and, if required by
law,
evidence of the flood insurance policy.
(p) Evidence
of payment of taxes and insurance premiums, insurance claim files,
correspondence, current and historical computerized data files, and all other
processing, underwriting and closing papers and records which are customarily
contained in a mortgage loan file and which are required to document the
Mortgage Loan or to service the Mortgage Loan.
(q) Amortization
schedule, if available.
E-1