MASTER SERVICING AGREEMENT
Dated as of ( )
among
(___________________) Home Equity Loan Trust 199_, Issuer
and
(IndyMac, Inc.), Seller and Master Servicer
and
( ), Trustee
Relating to the Mortgage Loans
Pledged as Collateral for the Issuer's
Asset Backed Notes and Asset Backed Certificates,
Series 199_,
in the Aggregate Initial
Principal Amount of $( )
TABLE OF CONTENTS
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Page
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PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Collection Account . . . . . . . . . . . . . . . . . . . . . . . . . 6
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . 8
Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . 9
Distribution Date . . . . . . . . . . . . . . . . . . . . . . . . . 10
Eligible Account . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Excess Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 11
FDIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FHLMC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FIRREA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fitch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FNMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Loan-to-Value Ratio . . . . . . . . . . . . . . . . . . . . . . . . 17
Master Servicing Fee . . . . . . . . . . . . . . . . . . . . . . . . 18
Xxxxx'x . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Mortgage File . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . . . . 20
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . 20
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 20
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Payment Account . . . . . . . . . . . . . . . . . . . . . . . . . .
Payment Account Deposit Date . . . . . . . . . . . . . . . . . . . .
Permitted Investments . . . . . . . . . . . . . . . . . . . . . . . 22
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Prepayment Period . . . . . . . . . . . . . . . . . . . . . . . . . 24
Principal Prepayment . . . . . . . . . . . . . . . . . . . . . . . . 25
Principal Prepayment in Full . . . . . . . . . . . . . . . . . . . . 25
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Qualified Insurer . . . . . . . . . . . . . . . . . . . . . . . . . 25
Realized Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Relief Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Relief Act Reductions . . . . . . . . . . . . . . . . . . . . . . . 27
REO Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Request for Release . . . . . . . . . . . . . . . . . . . . . . . . 27
Required Insurance Policy . . . . . . . . . . . . . . . . . . . . . 27
Servicing Advances . . . . . . . . . . . . . . . . . . . . . . . . . 29
Servicing Officer . . . . . . . . . . . . . . . . . . . . . . . . . 30
Substitute Mortgage Loan . . . . . . . . . . . . . . . . . . . . . . 30
Substitution Adjustment Amount . . . . . . . . . . . . . . . . . . . 30
Trustee Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Trustee Fee Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2. Conveyance of Mortgage Loans; Representations and Warranties . . . . 31
(a) Conveyance of Mortgage Loans; Retention of Obligation to
Fund Advances Under Credit Line Agreements. . . . . . . . . . . 31
(b) Acceptance by Trustee; Retransfer of Mortgage Loans . . . . . . 36
(c) Documents, Records and Funds in Possession of Master Servicer
to be Held for Trustee . . . . . . . . . . . . . . . . . . . . 38
(d) Representations, Warranties and Covenants of the Seller and
the Master Servicer. . . . . . . . . . . . . . . . . . . . . . 40
(e) Covenants of the Master Servicer. . . . . . . . . . . . . . . . 42
(f) Covenants of the Depositor . . . . . . . . . . . . . . . . . . 43
3. Administration and Servicing of Mortgage Loans . . . . . . . . . . 44
(a) Master Servicer to Service Mortgage Loans . . . . . . . . . . . 44
(b) Subservicing; Enforcement of the Obligations of Servicers . . . 47
(c) Successor Servicers . . . . . . . . . . . . . . . . . . . . . . 48
(d) Liability of the Master Servicer . . . . . . . . . . . . . . . 48
(e) No Contractual Relationship Between Servicers and the Trustee . 49
(f) Rights of the Depositor and the Trustee in Respect of the Master
Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
(g) Trustee to Act as Master Servicer . . . . . . . . . . . . . . . 49
(h) Collection of Mortgage Loan Payments; Collection Accounts;
Payment Account . . . . . . . . . . . . . . . . . . . . . . . . 50
(i) Collection of Taxes, Assessments and Similar Items; Escrow
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
(j) Access to Certain Documentation and Information Regarding the
Mortgage Loans . . . . . . . . . . . . . . . . . . . . . . . . 54
(k) Permitted Withdrawals from the Note Account . . . . . . . . . . 54
(l) Maintenance of Hazard Insurance; Maintenance of Primary
Insurance Policies . . . . . . . . . . . . . . . . . . . . . . 56
(m) Enforcement of Due-On-Sale Clauses; Assumption Agreements . . . 58
(n) Realization Upon Defaulted Mortgage Loans; Repurchase of Certain
Mortgage Loans . . . . . . . . . . . . . . . . . . . . . . . . 60
(o) Access to Certain Documentation . . . . . . . . . . . . . . . . 63
(p) Annual Statement as to Compliance . . . . . . . . . . . . . . . 64
(q) Annual Independent Public Accountants' Servicing Statement;
Financial Statements. . . . . . . . . . . . . . . . . . . . . . 64
(r) Errors and Omissions Insurance; Fidelity Bonds. . . . . . . . . 65
(s) Master Servicer Monthly Data. . . . . . . . . . . . . . . . . . 65
4. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
5. Servicing Compensation . . . . . . . . . . . . . . . . . . . . . . . 66
6. The Master Servicer. . . . . . . . . . . . . . . . . . . . . . . . . 66
(a) Respective Liabilities of the Depositor and the Master
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(b) Merger or Consolidation of the Depositor or the Master
Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
(c) Limitation on Liability of the Depositor, the Seller, Master
Servicer and Others. . . . . . . . . . . . . . . . . . . . . . 67
(d) Limitation on Resignation of the Master Servicer. . . . . . . . 68
7. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(a) Events of Default . . . . . . . . . . . . . . . . . . . . . . . 68
(b) Trustee to Act; Appointment of Successor. . . . . . . . . . . . 71
(c) Notification to Securityholders . . . . . . . . . . . . . . . . 72
8. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
(a) Term of Master Servicing Agreement . . . . . . . . . . . . . . 72
(b) Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 73
(c) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
(d) Inspection and Audit Rights. . . . . . . . . . . . . . . . . . 74
(e) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 74
(f) Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
(g) Severability of Provisions . . . . . . . . . . . . . . . . . . 76
(h) No Joint Venture . . . . . . . . . . . . . . . . . . . . . . . 77
(i) Recordation of Agreement; Counterparts . . . . . . . . . . . . 77
(j) Limitation of Liability of (owner trustee).
(k) Nonpetition Covenants . . . . . . . . . . . . . . . . . . . . . 78
SCHEDULE I: Mortgage Loan Schedule . . . . . . . . . . . . . . . . . S-I-1
SCHEDULE II: Representations and Warranties of
the Master Servicer . . . . . . . . . . . . . . . . . S-II-1
SCHEDULE III: Representations and Warranties as
to the Mortgage Loans . . . . . . . . . . . . . . . . S-III-1
SCHEDULE IV: Representations and Warranties of
the Issuer . . . . . . . . . . . . . . . . . . . . . S-IV-1
EXHIBITS
EXHIBIT A FORM OF INITIAL CERTIFICATION OF TRUSTEE . . . . . . . . . A-1
EXHIBIT B FORM OF FINAL CERTIFICATION OF TRUSTEE . . . . . . . . . . B-1
EXHIBIT C REQUEST FOR RELEASE
(for Trustee) . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D REQUEST FOR RELEASE (Mortgage Loan
Paid in Full, Repurchased and Released) . . . . . . . . . D-1
MASTER SERVICING AGREEMENT
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THIS MASTER SERVICING AGREEMENT is made and entered into as of ( ),
by and among (________________) Home Equity Loan Trust 199_, a statutory
business trust formed under the laws of the State of (Delaware) (the
"Issuer"), (IndyMac, Inc.), a (Delaware) corporation (the "Master Servicer"
or, in its capacity as seller, the "Seller") and ( ), a ( ) corporation (in
its capacity as trustee under the Indenture referred to below, the
"Trustee").
PRELIMINARY STATEMENT
The Issuer was formed for the purpose of issuing asset backed notes
and asset backed certificates secured by mortgage collateral. The Issuer has
entered into a trust indenture, dated as of ( ) (the "Indenture"), between
the Issuer and the Trustee, pursuant to which the Issuer intends to issue its
Home Equity Loan Asset Backed Notes and Home Equity Loan Asset Backed
Certificates, Series 199_, in the aggregate initial principal amount of $( )
(the "Securities"). Pursuant to the Indenture, as security for the
indebtedness represented by such Securities, the Issuer is and will be
pledging to the Trustee, or granting the Trustee a security interest in,
among other things, certain Mortgage Loans and Additional Balances, its
rights under this Agreement, the Payment Account, the Collection Account (and
certain Insurance Policies) (as each such term is defined herein).
The parties desire to enter into this Agreement to provide, among
other things, for the servicing of the Mortgage Loans by the Master Servicer.
The Master Servicer acknowledges that, in order further to secure the
Securities, the Issuer is and will be granting to the Trustee a security
interest in, among other things, its rights under this Agreement, and the
Master Servicer agrees that all covenants and agreements made by the Master
Servicer herein with respect to the Mortgage Loans shall also be for the
benefit and security of the Trustee and Holders of the Securities. For its
services hereunder, the Master Servicer will receive a Master Servicing Fee
(as defined herein) with respect to each Mortgage Loan serviced hereunder.
1. Defined Terms.
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Except as otherwise specified or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of this Agreement, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such terms:
Advance: The payment required to be made by the Master Servicer with
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respect to any Distribution Date pursuant to Section 4, the amount
of any such payment being equal to the aggregate of payments of principal
and interest (net of the Master Servicing Fee and net of any net income in
the case of any REO Property) on the Mortgage Loans that were due on the
related Due Date and not received as of the close of business on the related
Determination Date, less the aggregate amount of any such delinquent
payments that the Master Servicer has determined would constitute
a Nonrecoverable Advance if advanced.
Additional Balance: With respect to any Mortgage Loan, any future Draw
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made by the related Mortgagor pursuant to the related Loan Agreement after
the Cut-off Date in the case of an Initial Loan, or after the Deposit Date in
the case of an Additional Loan; provided, however, that if an Amortization
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Event occurs, then any Draw after such Amortization Event shall not be
acquired by the Issuer and shall not be an Additional Balance.
Additional Loans: All home equity line of credit loans sold by the
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Depositor to the Issuer after the Closing Date pursuant to Section 2 of the
Loan Purchase Agreement.
Administration Agreement: The Administration Agreement dated as of
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___________, 199_ among the Issuer, the Trustee and (______________), as
Administrator, as it may be amended from time to time.
Administrator: (______________), as administrator under the
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Administration Agreement or any successor Administrator appointed pursuant to
the terms of the Administration Agreement.
Agreement: Means this Master Servicing Agreement, as the same may be
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amended or supplemented from time to time.
Asset Balance: With respect to any Mortgage Loan, other than a Liqui
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dated Mortgage Loan, and as of any day, the related Cut-off Date Asset
Balance or Deposit Date Asset Balance, (plus (i) any Additional Balances in
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respect of such Mortgage Loan conveyed to the Issuer,) minus ((ii)) all
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collections credited as principal in respect of any such Mortgage Loan in
accordance with the related Loan Agreement (except for any such collections
that are allocable to the Excluded Amount) and applied in reduction of the
Asset Balance thereof. For purposes of this definition, a Liquidated
Mortgage Loan shall be deemed to have an Asset Balance equal to the Asset
Balance of the related Mortgage Loan immediately prior to the final recovery
of all related Liquidation Proceeds and an Asset Balance of zero thereafter.
Assignment of Mortgage: With respect to any Mortgage, an assignment,
----------------------
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction in which the related Mortgaged Property is
located to reflect the conveyance of the Mortgage, which assignment, notice
of transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties
located in the same jurisdiction.
Bankruptcy Code: Means the United States Bankruptcy Reform Act of 1978,
---------------
as amended.
Basic Documents: The Trust Agreement, the Certificate of Trust, the
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Indenture, the Loan Purchase Agreement, the Insurance Agreement, the
Administration Agreement, the Master Servicing Agreement, the Custodial
Agreement and the other documents and certificates delivered in connection
with any of the above.
Billing Cycle: With respect to any Mortgage Loan and Due Date, the
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calendar month preceding such Due Date.
Business Day: Any day other than (i) a Saturday or a Sunday or (ii) a
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day on which banking institutions in the State of New York, (_______________)
or (_____________) are required or authorized by law to be closed.
Certificateholder: The Person in whose name a Certificate is registered
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in the Certificate Register except that, any Certificate registered in the
name of the Issuer, the Owner Trustee or the Trustee or any Affiliate of any
of them shall be deemed not to be outstanding and the registered holder will
not be considered a Certificateholder or a holder for purposes of giving any
request, demand, authorization, direction, notice, consent or waiver under
the Indenture or the Trust Agreement provided that, in determining whether
the Trustee or the Owner Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Certificates that the Trustee or the Owner Trustee knows to be so owned shall
be so disregarded. Owners of Certificates that have been pledged in good
faith may be regarded as Holders if the pledgee establishes to the
satisfaction of the Trustee or the Owner Trustee, as the case may be, the
pledgee's right so to act with respect to such Certificates and that the
pledgee is not the Issuer, any other obligor upon the Certificates or any
Affiliate of any of the foregoing Persons.
Certificates: The Home Equity Loan Asset Backed Certificates, Series
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199_-_, each evidencing undivided beneficial interests in the Issuer and
executed by the Owner Trustee in substantially the form set forth in Exhibit
A to the Trust Agreement.
(IndyMac): Means (IndyMac, Inc.), a (Delaware) corporation, and its
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successors and assigns.
Class: The Notes or the Certificates, as the case may be.
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Closing Date: ___________, 199_.
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Code: The Internal Revenue Code of 1986, as amended, and the rules and
----
regulations promulgated thereunder.
Collateral: The meaning specified in the Granting Clause of the
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Indenture.
Collateral Value: With respect to any Mortgaged Property, (either (x)
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the value set forth in an appraisal of such Mortgaged Property made to
establish compliance with the underwriting criteria then in effect in
connection with the later of the application for the Mortgage Loan secured by
such Mortgaged Property or any subsequent increase or decrease in the related
Credit Limit or to reduce or eliminate the amount of any primary insurance,
or (y) if the sales price of the Mortgaged Property is considered in accor-
dance with the underwriting criteria applicable to the Mortgage Loan, the
lesser of (i) the appraised value referred to in (x) above and (ii) the sales
price of such Mortgaged Property).
Collection Account: Means the Eligible Account or Accounts established
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and maintained by the Master Servicer in accordance with Section 3(h)(iii).
Collection Period: With respect to any Mortgage Loan and Payment Date
-----------------
other than the first Payment Date, the calendar month preceding any such
Payment Date and with respect to the first Payment Date, the period from
_____________ through (___________).
Combined Loan-to-Value Ratio: With respect to any Mortgage Loan and any
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date, (the percentage equivalent of a fraction, the numerator of which is the
sum of (i) the Credit Limit (as of the date of execution of the related
Credit Line Agreement (or any subsequent date as of which such Credit Limit
may be determined in connection with an increase of the Credit Limit) and
(ii) the outstanding principal balance as of the date of the origination of
such Mortgage Loan (or any subsequent date as of which such outstanding
principal balance may be determined in connection with an increase or
decrease in the Credit Limit or to reduce the amount of primary insurance for
such Mortgage Loan) of any mortgage loan or mortgage loans that are secured
by liens on the Mortgaged Property that are senior or subordinate to the
Mortgage and the denominator of which is the Collateral Value of the related
Mortgaged Property).
Corporate Trust Office: The designated office of the Trustee in the
----------------------
State of ________ at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office
at the date of the execution of this Agreement is located at
__________________________________
(Attn: ____________________________________, facsimile no. ________________,
and which is the address to which notices to and correspondence with the
Trustee should be directed.
Credit Limit: With respect to any Mortgage Loan, the maximum Asset
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Balance permitted under the terms of the related Loan Agreement.
Custodial Agreement: Any Custodial Agreement between the Custodian, the
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Trustee, the Issuer and the Master Servicer relating to the custody of the
Mortgage Loans and the Related Documents.
Custodian: With respect to the Mortgage Loans, (______________), a
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(_______________), and its successors and assigns.
Cut-Off Date: With respect to the Initial Loans ________, 199_.
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DCR: Means Duff & Xxxxxx Credit Rating Company, or any successor
---
thereto. If DCR is designated as a Rating Agency in the Indenture, for
purposes of Section 8(c) the address for notices to DCR shall be Duff &
Xxxxxx Credit Rating Company, 00 X. Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: MBS Monitoring, or such other address as DCR may
hereafter furnish to the Issuer and the Master Servicer.
Deleted Mortgage Loan: Has the meaning ascribed thereto in Section 5.
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(Deposit Date: The applicable date as of which any Additional Loan is
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sold to the Issuer pursuant to the Loan Purchase Agreement.
Deposit Date Asset Balance: With respect to any Additional Loan, the
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Asset Balance thereof as of the Deposit Date.)
Depositor: (IndyMac Depositor), a Delaware corporation, or its
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successor in interest.
Determination Date: As to any Distribution Date, the ____ day of each
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month or if such ____ day is not a Business Day the next preceding Business
Day; provided, however, that if such ____ day or such Business Day, whichever
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is applicable, is less than two Business Days prior to the related
Distribution Date, the Determination Date shall be the first Business Day
which is two Business Days preceding such Distribution Date.
Distribution Date: The ____ day of each calendar month after the
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initial issuance of the Certificates, or if such ____ day is not a Business
Day, the next succeeding Business Day, commencing in____________, 199_.
Draw: With respect to any Mortgage Loan, a borrowing by the Mortgagor
----
under the related Loan Agreement.
Due Date: With respect to the Mortgage Loans, the (__)th day of the
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month.
Eligible Account: Any of (i) an account or accounts maintained with a
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federal or state chartered depository institution or trust company the
short-term unsecured debt obligations of which (or, in the case of a
depository institution or trust company that is the principal subsidiary of a
holding company, the debt obligations of such holding company) have the
highest short-term ratings of each Rating Agency at the time any amounts are
held on deposit therein, or (ii) an account or accounts in a depository
institution or trust company in which such accounts are insured by the FDIC
(to the limits established by the FDIC) and the uninsured deposits in which
accounts are otherwise secured such that, as evidenced by an Opinion of
Counsel delivered to the Trustee and to each Rating Agency, the
Securityholders have a claim with respect to the funds in such account or a
perfected first priority security interest against any collateral (which
shall be limited to Permitted Investments) securing such funds that is
superior to claims of any other depositors or creditors of the depository
institution or trust company in which such account is maintained, or (iii) a
trust account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust company,
acting in its fiduciary capacity or (iv) any other account acceptable to each
Rating Agency. Eligible Accounts may bear interest, and may include, if
otherwise qualified under this definition, accounts maintained with the
Trustee.
Eligible Substitute Mortgage Loan: A Mortgage Loan substituted by the
---------------------------------
Depositor for a Deleted Mortgage Loan which must, on the date of such
substitution, as confirmed in an Officers' Certificate delivered to the
Trustee, (i) have an outstanding principal balance, after deduction of the
principal portion of the monthly payment due in the month of substitution (or
in the case of a substitution of more than one Mortgage Loan for a Deleted
Mortgage Loan, an aggregate outstanding principal balance, after such
deduction), not in excess of the outstanding principal balance of the Deleted
Mortgage Loan (the amount of any shortfall to be deposited by the Seller in
the Collection Account in the month of substitution); (ii) have a Loan Rate
not less than the Loan Rate of the Deleted Mortgage Loan and not more than
__% in excess of the Loan Rate of such Deleted Mortgage Loan; (iii) have a
Loan Rate based on the same index with adjustments to such Loan Rate made on
the same interest rate adjustment date as that of the Deleted Mortgage Loan;
(iv) have a Margin that is not less than the Margin of the Deleted
Mortgage Loan and not more than _____ basis points higher than the
Margin for the Deleted Mortgage Loan; (v) have a mortgage of the same
or higher level of priority as the mortgage relating to the Deleted
Mortgage Loan; (vi) have a remaining term to maturity not more
than ____ months earlier and not more than ____ months later than the
remaining term to maturity of the Deleted Mortgage Loan; (vii) comply with
each representation and warranty as to the Mortgage Loans set forth in the
Loan Purchase Agreement (deemed to be made as of the date of substitution);
(viii) in general, have an original Combined Loan-to-Value Ratio not greater
than that of the Deleted Mortgage Loans; and (ix) satisfy certain other
conditions specified in the Purchase Agreement. To the extent the Principal
Balance of an Eligible Substitute Mortgage Loan is less than the Principal
Balance of the related Deleted Mortgage Loan, the Seller will be required to
make a deposit tot he Collection Account equal to such difference; and (x)
not be __ days or more delinquent.
Escrow Account: Means the Eligible Account or Accounts established and
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maintained pursuant to Section 3(i) hereof.
Excess Proceeds: With respect to any Liquidated Mortgage Loan, the
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amount, if any, by which the sum of any Liquidation Proceeds of such Mortgage
Loan received in the calendar month in which such Mortgage Loan became a
Liquidated Mortgage Loan, net of any amounts previously reimbursed to the
Master Servicer as Nonrecoverable Advance(s) with respect to such Mortgage
Loan pursuant to Section 3(k)(i)(C), exceeds (i) the unpaid principal balance
of such Liquidated Mortgage Loan as of the Due Date in the month in which
such Mortgage Loan became a Liquidated Mortgage Loan plus (ii) accrued
interest at the Mortgage Rate from the Due Date as to which interest was last
paid or advanced (and not reimbursed) to Securityholders up to the Due Date
applicable to the Distribution Date immediately following the calendar month
during which such liquidation occurred.
FDIC: The Federal Deposit Insurance Corporation, or any successor
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thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
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instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
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Act of 1989.
Fitch: Fitch IBCA, Inc., or any successor thereto. If Fitch is
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designated as a Rating Agency in the Preliminary Statement, for purposes of
Section 8(c) the address for notices to Fitch shall be Fitch Investors
Service, L.P., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
_______________________________________, or such other address as Fitch may
hereafter furnish to the Depositor and the Master Servicer.
FNMA: The Federal National Mortgage Association, a federally chartered
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and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act, or any successor thereto.
Gross Margin: With respect to any Mortgage Loan, the percentage set
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forth as the "Gross Margin" for such Mortgage Loan on the Mortgage Loan
Schedule, as adjusted from time to time with respect to any (______________)
Loan in accordance with the terms of this Agreement.
Holder: Any of the Noteholders or Securityholders.
------
Increased Senior Lien Limitation: shall have the meaning set forth in
--------------------------------
Section 3(a).
Indenture: Means the trust indenture, dated as of the date hereof,
---------
between the Issuer and the Trustee, as such Indenture may be amended or
supplemented from time to time in accordance with its terms.
(Insurance Agreement: The insurance and reimbursement agreement dated
-------------------
as of ______________, 199_ among the Master Servicer, the Seller, the
Depositor, the Issuer and the Credit Enhancer, including any amendments and
supplements thereto.)
Insurance Policy: Means, with respect to any Mortgage Loan, any
----------------
insurance policy, including all riders and endorsements thereto in effect,
including any replacement policy or policies for any Insurance Policies.
Insurance Proceeds: Proceeds paid by any insurer pursuant to any
------------------
insurance policy covering a Mortgage Loan which are required to be remitted
to the Master Servicer, or amounts required to be paid by the Master Servicer
pursuant to the last sentence of Section ( ) of the Master
Servicing Agreement, net of any component thereof (i) covering any expenses
incurred by or on behalf of the Master Servicer in connection with obtaining
such proceeds, (ii) that is applied to the restoration or repair of the
related Mortgaged Property, (iii) released to the Mortgagor in accordance
with the Master Servicer's normal servicing procedures or (iv) required to be
paid to any holder of a mortgage senior to such Mortgage Loan.
Interest Period: With respect to any Payment Date other than the first
---------------
Payment Date, the period beginning on the preceding Payment Date and ending
on the day preceding such Payment Date, and in the case of the first
Payment Date, the period beginning on the Closing Date and ending on the
day preceding the first Payment Date.
Issuer: (________________) Home Equity Loan Trust 199_-_, a Delaware
------
business trust, or its successor in interest.
Issuer Request: A written order or request signed in the name of the
--------------
Issuer by any one of its Authorized Officers and delivered to the Trustee.
Lien: Any mortgage, deed of trust, pledge, conveyance, hypothecation,
----
assignment, participation, deposit arrangement, encumbrance, lien (statutory
or other), preference, priority right or interest or other security agreement
or preferential arrangement of any kind or nature whatsoever, including,
without limitation, any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect as any of
the foregoing and the filing of any financing statement under the UCC (other
than any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing;
provided, however, that any assignment pursuant to Section ( ) of the
-------- -------
Master Servicing Agreement shall not be deemed to constitute a Lien.
Lifetime Rate Cap: With respect to each Mortgage Loan with respect to
-----------------
which the related Mortgage Note provides for a lifetime rate cap, the maximum
Loan Rate permitted over the life of such Mortgage Loan under the terms of
such Mortgage Note, as set forth on the Mortgage Loan Schedule and initially
as set forth on Exhibit A to the Master Servicing Agreement.
Liquidated Mortgage Loan: With respect to any Payment Date, any Mort
------------------------
gage Loan in respect of which the Master Servicer has determined, in
accordance with the servicing procedures specified in the Master Servicing
Agreement, as of the end of the related Collection Period that substantially
all Liquidation Proceeds which it reasonably expects to recover with respect
to the disposition of the related REO have been recovered.
Liquidation Expenses: Out-of-pocket expenses (exclusive of overhead)
--------------------
which are incurred by or on behalf of the Master Servicer in connection with
the liquidation of any Mortgage Loan and not recovered under any insurance
policy, such expenses including, without limitation, legal fees and expenses,
any unreimbursed amount expended (including, without limitation, amounts
advanced to correct defaults on any mortgage loan which is senior to such
Mortgage Loan and amounts advanced to keep current or pay off a mortgage loan
that is senior to such Mortgage Loan) respecting the related Mortgage Loan
and any related and unreimbursed expenditures for real estate property taxes
or for property restoration, preservation or insurance against
casualty loss or damage.
Liquidation Loss Amounts: With respect to any Payment Date and any
------------------------
Mortgage Loan that became a Liquidated Mortgage Loan during the related
Collection Period, the unrecovered portion of the related Asset Balance
thereof at the end of such Collection Period, after giving effect to the Net
Liquidation Proceeds applied in reduction of the Asset Balance.
Liquidation Proceeds: Proceeds (including Insurance Proceeds (but not
--------------------
including amounts drawn under the Credit Enhancement Instrument)) received in
connection with the liquidation of any Mortgage Loan or related REO, whether
through trustee's sale, foreclosure sale or otherwise.
Loan Agreement: With respect to any Mortgage Loan, the credit line
--------------
account agreement executed by the related Mortgagor and any amendment or
modification thereof.
Loan Purchase Agreement: The Loan Purchase Agreement, dated as of the
-----------------------
Cut-off Date, between the Seller, as seller, and the Depositor, as purchaser,
with respect to the Mortgage Loans.
Loan Rate: With respect to any Mortgage Loan and any day, the sum of
---------
the Index Rate and the Margin.
Loan-to-Value Ratio: With respect to any Mortgage Loan and as to any
-------------------
date of determination, (i) the principal balance of such Mortgage Loan
divided by (ii) the Collateral Value of the related Mortgaged Property.
Margin: The (spread).
------
Master Servicer: Means (IndyMac, Inc.), a (Delaware) corporation, and
---------------
its successors and assigns, in its capacity as master servicer hereunder.
Master Servicer Advance Date: Means as to any Distribution Date, 12:30
----------------------------
p.m. Pacific time on the Business Day immediately preceding such Distribution
Date.
Master Servicing Fee: As to each Mortgage Loan and any Distribution
--------------------
Date, an amount payable out of each full payment of interest received on such
Mortgage Loan and equal to one-twelfth of the Master Servicing Fee Rate
multiplied by the Stated Principal Balance of such Mortgage Loan as of the
Due Date in the month of such Distribution Date (prior to giving effect to
any Scheduled Payments due on such Mortgage Loan on such Due Date), subject
to reduction as provided in Section 5.
Master Servicing Fee Rate: Means with respect to each Mortgage Loan,
-------------------------
( )% per annum.
Moody's: Xxxxx'x Investors Service, Inc., or any successor thereto.
-------
If Xxxxx'x is designated as a Rating Agency in the Preliminary Statement, for
purposes of Section 8(c) the address for notices to Moody's shall be Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ___________________________________, or such other address as
Moody's may hereafter furnish to the Depositor or the Master Servicer.
Mortgage: The mortgage, deed of trust or other instrument creating a
--------
first or second lien on an estate in fee simple interest in real property
securing a Mortgage Loan.
Mortgage File: The file containing the Related Documents pertaining to
-------------
a particular Mortgage Loan and any additional documents required to be added
to the Mortgage File pursuant to the Loan Purchase Agreement or the Master
Servicing Agreement.
Mortgage Loan Schedule: With respect to any date, the schedule of
----------------------
Mortgage Loans included in the Trust Estate on such date. The initial
schedule of Mortgage Loans as of the Cut-Off Date is the schedule set forth
in Exhibit A of the Master Servicing Agreement, which schedule sets forth as
to each Mortgage Loan (i) the Cut-Off Date Trust Balance, (ii) the Credit
Limit, (iii) the Gross Margin, (iv) the name of the Mortgagor, (v) the
Lifetime Rate Cap, if any, (vi) the loan number, (vii) an indication as to
the applicable Mortgage Loan Group, and (viii) the lien position of the
related Mortgage. The Mortgage Loan Schedule will be amended from time to
time by annex to reflect Additional Loans.
Mortgage: Means the mortgage, deed of trust or other instrument
--------
creating a first lien on an estate in fee simple or leasehold interest in
real property securing a Mortgage Note.
Mortgage File: The mortgage documents listed in Section 2(a)(i) hereof
-------------
pertaining to a particular Mortgage Loan and any additional documents
delivered to the Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage Loans: At any time, collectively, all Initial Loans (and
--------------
Additional Loans, in each case including Additional Balances, if any, that
have been sold to the Depositor under the Loan Purchase Agreement,) in each
case together with the Related Documents, and that remain subject to the
terms thereof. Such schedule shall also set forth the total of the amounts
described under (iv) and (v) above for all of the Mortgage Loans.
Mortgage Note: With respect to a Mortgage Loan, the Loan Agreement
-------------
pursuant to which the related mortgagor agrees to pay the indebtedness
evidenced thereby and secured by the related Mortgage as modified or amended.
Mortgaged Property: The underlying property, including real property
------------------
and improvements thereon, securing a Mortgage Loan.
Mortgagor: The obligor or obligors under a Loan Agreement.
---------
Net Liquidation Proceeds: With respect to any Liquidated Mortgage Loan,
------------------------
Liquidation Proceeds net of Liquidation Expenses.
Net Loan Rate: With respect to any Mortgage Loan and any day, the
-------------
related Loan Rate less the related Servicing Fee Rate.
Nonrecoverable Advance: Any portion of an Advance previously made or
----------------------
proposed to be made by the Master Servicer that, in the good faith judgment
of the Master Servicer, will not be ultimately recoverable by the Master
Servicer from the related Mortgagor, related Liquidation Proceeds or
otherwise.
Notes: The Notes designated as the "Notes" in the Indenture.
-----
Noteholder or Holder: Means the Person in whose name a Note is
---------- ------
registered in the Note Register (as defined in the Indenture).
Officer's Certificate: A certificate (i) signed by the Chairman of the
---------------------
Board, the Vice Chairman of the Board, the President, a Managing Director, a
Vice President (however denominated), an Assistant Vice President, the
Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant
Secretaries of the Depositor or the Master Servicer, or (ii), if provided for
in this Agreement, signed by a Servicing Officer, as the case may be, and
delivered to the Depositor and the Trustee, as the case may be, as required
by this Agreement.
Opinion of Counsel: A written opinion of counsel, who may be counsel
------------------
for the Depositor or the Master Servicer, including, in-house counsel,
reasonably acceptable to the Trustee; provided, however, that with respect
-------- -------
to the interpretation or application of the REMIC Provisions, such counsel
must (i) in fact be independent of the Depositor and the Master Servicer,
(ii) not have any direct financial interest in the Depositor or the Master
Servicer or in any affiliate of either, and (iii) not be connected with
the-Depositor or the Master Servicer as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Outstanding: With respect to the Certificates as of any date of
-----------
determination, all Certificates theretofore executed and authenticated under
this Agreement except:
(i) Certificates theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(ii) Certificates in exchange for which or in lieu of which other
Certificates have been executed and delivered by the Trustee
pursuant to this Agreement.
Owner Trust Estate: The corpus of the Issuer created by the Trust
------------------
Agreement which consists of the Mortgage Loans, such assets as shall from
time to time be deposited in the Collection Account and/or the Payment
Account allocable to the Mortgage Loans in accordance with the Trust
Agreement, property that secured a Mortgage Loan and that has become REO,
certain hazard insurance policies maintained by the Mortgagors or by or on
behalf of the Master Servicer in respect of the Mortgage Loans, (the Credit
Enhancement Instrument,) an assignment of the Depositor's rights under the
Loan Purchase Agreement and the obligation of the Depositor to purchase
Additional Balances under the Loan Purchase Agreement and all proceeds of
each of the foregoing.
Owner Trustee: (______________), and its successors and assigns or any
-------------
successor owner trustee appointed pursuant to the terms of the Trust
Agreement.
Paying Agent: Any paying agent or co-paying agent appointed pursuant
------------
to Section 3.03 of the Indenture, which initially shall be (______________).
Payment Account: The account established by the Trustee pursuant to
---------------
Section 8.02 of the Indenture and Section ( ) of the Master Servicing
Agreement. The Payment Account shall be an Eligible Account.
Payment Account: The separate Eligible Account created and maintained
---------------
by the Trustee pursuant to Section 3(h) in the name of the Trustee for the
benefit of the Securityholders and designated "_________________________ in
trust for registered holders of Home Equity Loan Trust Asset Backed
Certificates, Series 199_-_." Funds in the Payment Account shall be held in
trust for the Securityholders for the uses and purposes set forth in this
Agreement.
Payment Account Deposit Date: As to any Distribution Date, 12:30 p.m.
----------------------------
Pacific time on the Business Day immediately preceding such Distribution
Date.
Payment Date: The (___) day of each month, or if such day is not a
------------
Business Day, then the next Business Day.
Percentage Interest: With respect to any Note, the percentage obtained
-------------------
by dividing the Security Balance of such Note by the aggregate of the
Security Balances of all Notes of the same Class. With respect to any
Certificate, the percentage obtained by dividing the denomination specified
on such Certificate by the Initial Principal Balance of the Certificates.
Permitted Investments: At any time, any one or more of the following
---------------------
obligations and securities: (i) obligations of the United States or any
agency thereof, provided such obligations are backed by the full faith and
credit of the United States; (ii) general obligations of or obligations
guaranteed by any state of the United States or the District of Columbia
receiving the highest long-term debt rating of each Rating Agency rating the
related Series of Securities, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the Securities by
each such Rating Agency; (iii) commercial or finance company paper
(including, without limitation, commercial paper issued by (IndyMac, Inc.) or
any of its affiliates) which is then receiving the highest commercial or
finance company paper rating of each such Rating Agency, or such lower rating
as will not result in the downgrading or withdrawal of the ratings then
assigned to the Securities by each such Rating Agency; (iv) certificates of
deposit, demand or time deposits, or bankers' acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or long term unsecured debt obligations of such
depository institution or trust company (or in the case of the principal
depository institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of such holding company, but only if
Xxxxx'x Investors Service, Inc. ("Xxxxx'x") is not a Rating Agency) are then
rated one of the two highest long-term and the highest short-term ratings of
each such Rating Agency for such securities, or such lower ratings as will
not result in the downgrading or withdrawal of the rating then assigned to
the Securities by any such Rating Agency; (iv) demand or time deposits or
certificates of deposit issued by any bank or trust company or savings
institution to the extent that such deposits are fully insured by the FDIC;
(v) guaranteed reinvestment agreements issued by any bank, insurance company
or other corporation containing, at the time of the issuance of such
agreements, such terms and conditions as will not result in the downgrading
or withdrawal of the rating then assigned to the Securities by any such
Rating Agency; (vi) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into with a
depository institution or trust company (acting as principal) described in
clause (iv) above; (vii) securities (other than stripped bonds,
stripped coupons or instruments sold at a purchase price in excess of 115% of
the face amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any state
thereof which, at the time of such investment, have one of the two highest
ratings of each Rating Agency (except if the Rating Agency is Moody's, such
rating shall be the highest commercial paper rating of Moody's for any such
securities), or such lower rating as will not result in the downgrading or
withdrawal of the rating then assigned to the Securities by any such Rating
Agency, as evidenced by a signed writing delivered by each such Rating
Agency; and (viii) such other investments having a specified stated maturity
and bearing interest or sold at a discount acceptable to each Rating Agency
as will not result in the downgrading or withdrawal of the rating then
assigned to the Securities of such Series by any such Rating Agency, as
evidenced by a signed writing delivered by each such Rating Agency; provided
--------
that no such instrument shall be a Permitted Investment if such instrument
evidences the right to receive interest only payments with respect to the
obligations underlying such instrument.
Person: Any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
(Policy: The irrevocable and unconditional limited financial guaranty
------
insurance policy number (__________), dated as of the Closing Date, issued by
the Credit Enhancer to the Trustee for the benefit of the Noteholders and to
the Certificate Paying Agent as agent for the Issuer for the benefit of the
Securityholders.)
Pool Balance: With respect to any date, the aggregate of the Asset
------------
Balances of all Mortgage Loans as of such date.
Prepayment Period: As to any Distribution Date, the period from the
-----------------
__th day of the calendar month preceding the month of such Distribution Date
(or, in the case of the first Distribution Date, from the Cut-off Date)
through the __th of the month of such Distribution Date.
Principal Balance: With respect to any Payment Date, the Initial Prin
-----------------
cipal Balance thereof, reduced by all distributions of principal thereon
prior to such Payment Date.
Principal Prepayment: Any payment of principal by a Mortgagor on a
--------------------
Mortgage Loan that is received in advance of its scheduled Due Date and is
not accompanied by an amount representing scheduled interest due on any date
or dates in any month or months subsequent to the month of prepayment.
Partial Principal Prepayments shall be applied by the Master Servicer
in accordance with the terms of the related Mortgage Note.
Principal Prepayment in Full: Any Principal Prepayment made by a
----------------------------
Mortgagor of the entire principal balance of a Mortgage Loan.
Prospectus Supplement: Means the Prospectus Supplement dated ( )
---------------------
relating to the Notes.
Purchase Price: With respect to any Mortgage Loan required to be
--------------
purchased by the Seller pursuant to Section 2(a)(ii) or 2(d)(iv) hereof or
purchased at the option of the Master Servicer pursuant to Section 3(n), (an
amount equal to the sum of (i) 100% of the unpaid principal balance of the
Mortgage Loan on the date of such purchase and (ii) unpaid interest thereon
accrued through the Due Date occurring in the calendar month following the
month in which such purchase occurs, computed at the applicable Loan Rate;
provided that if at the time of purchase the Seller is the Master Servicer
--------
or the purchase is otherwise by the Master Servicer, (x) the amount described
in clause (ii) shall be computed at the Net Loan Rate and (y) the Purchase
Price shall be reduced by any unreimbursed Advances with respect to such
Mortgage Loan.)
Qualified Insurer: A mortgage guaranty insurance company duly qualified
-----------------
as such under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with the
insurance policy issued by such insurer, duly authorized and licensed in such
states to transact a mortgage guaranty insurance business in such states and
to write the insurance provided by the insurance policy issued by it,
approved as a FNMA-approved mortgage insurer and having a claims paying
ability rating of at least "__" or equivalent rating by a nationally
recognized statistical rating organization. Any replacement insurer with
respect to a Mortgage Loan must have at least as high a claims paying ability
rating as the insurer it replaces had on the Closing Date.
Rating Agency: Any nationally recognized statistical rating
-------------
organization, or its successor, that rated the Securities at the request of
the Depositor at the time of the initial issuance of the Securities.
Initially, (________) or (__________). If such organization or a successor
is no longer in existence, "Rating Agency" shall be such nationally
recognized statistical rating organization, or other comparable Person,
designated by the Depositor, notice of which designation shall be given to
the Trustee. References herein to the highest short term unsecured rating
category of a Rating Agency shall mean (___) or better in the case of
(__________)and (___) or better in the case of (_____) and in the case of any
other Rating Agency shall mean such equivalent ratings. References herein to
the highest long-term rating category of a Rating Agency shall
mean "(___)" in the case of (__________) and (_____) in the
case of (________) and in the case of any other Rating
Agency, such equivalent rating.
Realized Loss: With respect to each Liquidated Mortgage Loan, an amount
-------------
(not less than zero or more than the Stated Principal Balance of the Mortgage
Loan) as of the date of such liquidation, equal to (i) the Stated Principal
Balance of the Liquidated Mortgage Loan as of the date of such liquidation,
plus (ii) interest at the Adjusted Net Mortgage Rate from the Due Date as to
which interest was last paid or advanced (and not reimbursed) to
Securityholders up to the Due Date in the month in which Liquidation Proceeds
are required to be distributed on the Stated Principal Balance of such
Liquidated Mortgage Loan from time to time, minus (iii) the Liquidation
Proceeds, if any, received during the month in which such liquidation
occurred, to the extent applied as recoveries of interest at the Adjusted Net
Mortgage Rate and to principal of the Liquidated Mortgage Loan. With respect
to each Mortgage Loan which has become the subject of a Deficient Valuation,
if the principal amount due under the related Mortgage Note has been reduced,
the difference between the principal balance of the Mortgage Loan outstanding
immediately prior to such Deficient Valuation and the principal balance of
the Mortgage Loan as reduced by the Deficient Valuation. With respect to
each Mortgage Loan which has become the subject of a Debt Service Reduction
and any Distribution Date, the amount, if any, by which the principal portion
of the related Scheduled Payment has been reduced.
Relief Act: The Soldiers' and Sailors' Civil Relief Act of 1940, as
----------
amended.
Relief Act Reductions: With respect to any Distribution Date and any
---------------------
Mortgage Loan as to which there has been a reduction in the amount of
interest collectible thereon for the most recently ended calendar month as a
result of the application of the Relief Act, the amount, if any, by which (i)
interest collectible on such Mortgage Loan for the most recently ended
calendar month is less than (ii) interest accrued thereon for such month
pursuant to the Mortgage Note.
REO Property: A Mortgaged Property acquired by the Issuer through
------------
foreclosure or deed-in-lieu of foreclosure in connection with a defaulted
Mortgage Loan.
Repurchase Price: With respect to any Mortgage Loan required to be
----------------
repurchased on any date pursuant to the Loan Purchase Agreement or purchased
by the Master Servicer pursuant to the Master Servicing Agreement, an amount
equal to the sum of (i) 100% of the Asset Balance thereof (without reduction
for any amounts charged off) and (ii) unpaid accrued interest at the Loan
Rate on the outstanding principal balance thereof from the Due Date to which
interest was last paid by the Mortgagor to the first day of the month
following the month of purchase. No portion of any Repurchase Price
shall be included in the Excluded Amount for any Payment Date.
Request for Release: The Request for Release submitted by the Master
-------------------
Servicer to the Trustee, substantially in the form of Exhibits C and D, as
appropriate.
Required Insurance Policy: With respect to any Mortgage Loan, any
-------------------------
insurance policy that is required to be maintained from time to time under
this Agreement.
SAIF: Means the Savings Association Insurance Fund, or any successor
----
thereto.
S&P: Means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx
---
Inc. If S&P is designated as a Rating Agency in the Indenture, for purposes
of Section 8(c) the address for notices to S&P shall be Standard & Poor's
Ratings Group, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Mortgage Surveillance Monitoring, or such other address as S&P may hereafter
furnish to the Issuer and the Master Servicer.
Securities Act: The Securities Act of 1933, as amended, and the rules
--------------
and regulations promulgated thereunder.
Security: Any of the Certificates or Notes.
--------
Securityholder or Holder: Any Noteholder or any Certificateholder.
-------------- ------
Seller: (IndyMac,Inc.), and its successors and assigns.
------
Servicer Advance: Means the meaning ascribed to such term in Section
----------------
3(h)(iv).
Servicing Account: Means the separate Eligible Account or Accounts
-----------------
created and maintained pursuant to Section 3(h)(ii).
Servicing Advances: All customary, reasonable and necessary "out of
------------------
pocket" costs and expenses incurred in the performance by the Master Servicer
of its servicing obligations, including, but not limited to, the cost of (i)
the preservation, restoration and protection of a Mortgaged Property, (ii)
any expenses reimbursable to the Master Servicer pursuant to Section 3(n) and
any enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of any REO Property and (iv) compliance with the
obligations under Section 3(l).
Servicing Default: Means a servicing default as described under Section
-----------------
7(a) of this Agreement.
Servicing Fee: Means, as to each Mortgage Loan and any Distribution
-------------
Date, an amount equal to one month's interest at the applicable Servicing Fee
Rate on the Stated Principal Balance of such Mortgage Loan.
Servicing Fee Rate: Means, with respect to any Mortgage Loan, the per
------------------
annum rate set forth in the Mortgage Loan Schedule for such Mortgage Loan.
Servicing Officer: Any officer of the Master Servicer involved in, or
-----------------
responsible for, the administration and servicing of the Mortgage Loans whose
name and facsimile signature appear on a list of servicing officers furnished
to the Trustee by the Master Servicer on the Closing Date pursuant to this
Agreement, as such list may from time to time be amended.
Subservicer: Any Person with whom the Master Servicer has entered into
-----------
a Subservicing Agreement as a Subservicer by the Master Servicer pursuant to
Section 3(b).
Subservicing Agreement: The written contract between the Master
----------------------
Servicer and any Subservicer relating to servicing and administration of
certain Mortgage Loans as provided in Section ( ) of the Master
Servicing Agreement.
Subservicing Fee: With respect to any Mortgage Loan and any Collection
----------------
Period, the fee retained monthly by the Subservicer (or, in the case of a
nonsubserviced Mortgage Loan, by the Master Servicer) equal to the product of
(i) the Subservicing Fee Rate divided by 12 and (ii) the aggregate Asset
Balance of the Mortgage Loans as of the first day of such Collection Period.
Substitute Mortgage Loan: A Mortgage Loan substituted by the Seller for
------------------------
a Deleted Mortgage Loan which must, on the date of such substitution, as
confirmed in a Request for Release, substantially in the form of Exhibit C,
(i) have a Stated Principal Balance, after deduction of the principal portion
of the Scheduled Payment due in the month of substitution, not in excess of,
and not more than 10% less than the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) be accruing interest at a rate no lower than and not more
than 1% per annum higher than, that of the Deleted Mortgage Loan; (iii) have
a Loan-to-Value Ratio no higher than that of the Deleted Mortgage Loan; (iv)
have a remaining term to maturity no greater than (and not more than one year
less than that of) the Deleted Mortgage Loan; and (v) comply with each
representation and warranty set forth in Section 2(d) hereof.
Substitution Adjustment Amount: The meaning ascribed to such term
------------------------------
pursuant to Section 2(d)(iv).
Trust Agreement: Means the Trust Agreement, dated as of ( ), between
---------------
the Depositor and the Owner Trustee, as such Trust Agreement may be amended
or supplemented from time to time.
Trustee: Shall mean (______________), and its successors and assigns
-------
or any successor trustee appointed pursuant to the terms of the Indenture.
Trustees: Shall mean the Trustee and the Owner Trustee.
--------
Trust Estate: Shall have the meaning ascribed to such term in the
------------
Indenture.
UCC: The Uniform Commercial Code, as amended from time to time, as in
---
effect in any specified jurisdiction.
Withdrawal Date: Means the ____ day of each month, or if such day is
---------------
not a Business Day, the next preceding Business Day.
2. Conveyance of Mortgage Loans; Representations and Warranties.
------------------------------------------------------------
(a) Conveyance of Mortgage Loans; Retention of Obligation to Fund
-------------------------------------------------------------
Advances Under Credit Line Agreements.
-------------------------------------
The Depositor, concurrently with the execution and delivery of this
Agreement, does hereby transfer, assign, set over and otherwise convey to the
Trust without recourse (subject to Sections 2(b)and 2(d) all of its right,
title and interest in and to (i) each Mortgage Loan, including its Asset
Balance (including all Additional Balances) and all collections in respect
thereof (received) (due) on or after the Cut-off Date ((excluding payments in
respect of accrued interest (due) (received) prior to the Cut-off Date (or
due in the month of ____________))); (ii) property that secured a Mortgage
Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii)
the Depositor's rights under the Loan Purchase Agreement; (iv) (the
Depositor's rights under the hazard insurance policies,) (v) the Collection
Account (excluding net earnings thereon); (vi) the Policy, (vii) the Payment
Account and (viii) all other assets included or to be included in the Trust
for the benefit of Securityholders; provided, however, neither the Trustee
-------- -------
nor the Trust assumes the obligation under any Credit Line Agreement that
provides for the funding of future advances to the Mortgagor thereunder, and
neither the Trust nor the Trustee shall be obligated or permitted to fund any
such future advances. Additional Balances shall be part of the related Asset
Balance and are hereby transferred to the Trust on the Closing Date pursuant
to this Section 2(a), and therefore part of the Trust property. In addition,
on or prior to the Closing Date, the Depositor shall cause the Credit
Enhancer to deliver the Policy to the Trustee for the benefit of
the Securityholders. The foregoing transfer, assignment, set-over and
conveyance to the Trust shall be made to the Trustee, on behalf of the Trust,
and each reference in this Agreement to such transfer, assignment, set-over
and conveyance shall be construed accordingly.
The Depositor agrees to take or cause to be taken such actions and
execute such documents (including without limitation the filing of all
necessary continuation statements for the UCC-1 financing statements filed in
the State of __________ (which shall have been filed within 90 days of the
Closing Date) describing the Cut-off Date Asset Balances and Additional
Balances and naming the Depositor as debtor and the Trustee as secured party
and any amendments to UCC-1 financing statements required to reflect a change
in the name or corporate structure of the Depositor or the filing of any
additional UCC-1 financing statements due to the change in the principal
office of the Depositor (within 90 days of any event necessitating such
filing) as are necessary to perfect and protect the Securityholders' and
Credit Enhancer's interests in each Cut-off Date Asset Balance and Additional
Balances and the proceeds thereof (other than maintaining possession by the
Trustee of the Mortgage Loans and the Mortgage Files, which possession will,
subject to the terms hereof, be maintained by the Master Servicer as
custodian and bailee of the Trustee).
In connection with such transfer and assignment by the Depositor, the
Master Servicer acknowledges that it is holding as custodian and bailee for
the Trustee the following documents or instruments (the "Related Documents")
with respect to each Mortgage Loan:
(A) the original Mortgage Note endorsed in blank;
(B) an original Assignment of Mortgage (in blank) in recordable
form;
((C) the original recorded Mortgage or, if, in connection with
any Mortgage Loan, the original recorded Mortgage with evidence of
recording thereon cannot be delivered on or prior to the Closing Date
because of a delay caused by the public recording office where such
original Mortgage has been delivered for recordation or because such
original Mortgage has been lost, the Seller, at the direction of the
Depositor, shall deliver or cause to be delivered to the Custodian, as
agent for the Trustee, a true and correct copy of such Mortgage,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Depositor stating that such
original Mortgage has been dispatched to the appropriate public
recording official or (ii) in the case of an original Mortgage that has
been lost, a certificate by the appropriate county recording
office where such Mortgage is recorded;)
(D) if applicable, the original intervening assignments, if any
("Intervening Assignments"), with evidence of recording thereon, showing
a complete chain of title to the Mortgage from the originator to the
Depositor or, if any such original Intervening Assignment has not been
returned from the applicable recording office or has been lost, a true
and correct copy thereof, together with (i) in the case of a delay
caused by the public recording office, an Officer's Certificate of the
Seller stating that such original Intervening Assignment has been
dispatched to the appropriate public recording official for recordation
or (ii) in the case of an original Intervening Assignment that has been
lost, a certificate by the appropriate county recording office where
such Mortgage is recorded;
(E) either (1) for each Mortgage Loan with a Credit Limit in
excess of $_________, a title policy or (2) for all other Mortgage
Loans, either a title policy, a title search or guaranty of title with
respect to the related Mortgaged Property;
(F) the original of any guaranty executed in connection with the
Mortgage Note;
(G) the original of each assumption, modification, consolidation
or substitution agreement, if any, relating to the Mortgage Loan; and
(H) any security agreement, chattel mortgage or equivalent
instrument executed in connection with the Mortgage;
provided, however, that as to any Mortgage Loan, if (a) as evidenced by an
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Opinion of Counsel delivered to and in form and substance satisfactory to the
Trustee and the Credit Enhancer, (x) an optical image or other representation
of the related documents specified in clauses (i) through (viii) above are
enforceable in the relevant jurisdictions to the same extent as the original
of such document and (y) such optical image or other representation does not
impair the ability of an owner of such Mortgage Loan to transfer its interest
in such Mortgage Loan, and (b) the retention of such documents in such format
will not result in a reduction in the then current rating of the Notes or
Certificates, without regard to the Policy, such optical image or other
representation may be held by the Master Servicer, as custodian for the
Trustee or assignee in lieu of the physical documents specified above.
The Seller hereby confirms to the Trustee that it has caused the
portions of its electronic ledgers relating to the Mortgage Loans to be
clearly and unambiguously marked, and has made the appropriate entries in its
general accounting records, to indicate that such Mortgage Loans have been
transferred to the Trust at the direction of the Depositor. The Master
Servicer hereby confirms to the Trustee that it has clearly and unambiguously
made appropriate entries in its general accounting records indicating that
such Mortgage Loans constitute part of the Trust and are serviced by it on
behalf of the Trust in accordance with the terms hereof.
The parties hereto intend that the transaction set forth herein be a
sale by the Depositor to the Trust of all the Depositor's right, title and
interest in and to the Mortgage Loans and other property described above. In
the event the transaction set forth herein is deemed not to be a sale, the
Depositor hereby grants to the Trust a security interest in all of the
Depositor's right, title and interest in, to and under the Mortgage Loans
whether now existing or hereafter created, all monies due or to become due on
the Mortgage Loans and all proceeds of any thereof; and this Agreement shall
constitute a security agreement under applicable law.
Except as hereinafter provided, the Master Servicer shall be entitled to
maintain possession of all of the foregoing documents and instruments and
shall not be required to deliver any of them to the Trustee or the Owner
Trustee. In the event, however, that possession of any of such documents or
instruments is required by any Person (including any such Trustee) acting as
successor servicer pursuant to Section 6(d) or 7(b) in order to carry out the
duties of Master Servicer hereunder, then such successor shall be entitled to
request delivery, at the expense of the Master Servicer, of such documents or
instruments by the Master Servicer and to retain such documents or
instruments for servicing purposes; provided that the Trustee or such
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servicers shall maintain such documents at such offices as may be required by
any regulatory body having jurisdiction over such Mortgage Loans.
The Master Servicer's right to maintain possession of the documents
enumerated above shall continue so long as the long term unsecured debt of
(IndyMac,Inc.) is assigned ratings of at least "____" by __________________
and "____" by _______________. At such time as the condition specified in
the preceding sentence is not satisfied, as promptly as practicable but in no
event more than __ days in the case of clause (i) below and __ days in the
case of clause (ii) below following the occurrence of such event (a "Delivery
Event"), the Master Servicer shall, at its expense, (i) either (x) record an
assignment of Mortgage in favor of the Trustee (which may be a blanket
assignment if permitted by applicable law) in the appropriate real property
or other records or (y) deliver to the Trustee the assignment of
such Mortgage in favor of the Trustee in form for recordation, together
with an Opinion of Counsel addressed to the Trustee and the Credit Enhancer
to the effect that recording is not required to protect the Trustee's right,
title and interest in and to the related Mortgage Loan or, in case
a court should recharacterize the sale of the Mortgage Loans as a financing,
to perfect a first priority security interest in favor of the Trustee in
the related Mortgage Loan, which Opinion of Counsel also shall be
reasonably acceptable to each of the Rating Agencies (as evidenced
in writing) and the Credit Enhancer, and (ii) unless an Opinion
of Counsel, reasonably acceptable to the Trustee, the Rating Agencies (as
evidenced in writing) and the Credit Enhancer, is delivered to the Trustee
and the Credit Enhancer to the effect that delivery of the Mortgage Files is
not necessary to protect the Trustee's right, title and interest in the
related Mortgage Loans; provided that the lack of delivery will not result
--------
in a reduction in the then current rating of the "Notes or Certificates",
without regard to the Policy, deliver the related Mortgage Files to
the Trustee or to a custodian located in the State of (California)
appointed by the Trustee and acceptable to the Rating Agencies and
the Credit Enhancer to be held by the Custodian on behalf of the
Trustees in trust, upon the terms herein set forth, for the use and benefit
of all present and future Securityholders and the Custodian on behalf of the
Trustee shall retain possession thereof except to the extent the Master
Servicer requires any Mortgage Files for normal servicing as contemplated by
Section _____. The Trustee is hereby appointed as the attorney-in-fact of
the Master Servicer with the power to prepare, execute and record Assignments
of Mortgages in the event that the Master Servicer fails to do so on a timely
basis as provided in this paragraph.
Within 90 days following delivery, if any, of the Mortgage Files to the
Trustee pursuant to the preceding paragraph, the Trustee shall review each
such Mortgage File to ascertain that all required documents set forth in this
Section 2(a) have been executed and received, and that such documents relate
to the Mortgage Loans identified on the Mortgage Loan Schedule and in so
doing the Trustee may rely on the purported due execution and genuineness of
any signature thereon. If within such 90-day period the Trustee finds any
document constituting a part of a Mortgage File not to have been executed or
received or to be unrelated to the Mortgage Loans identified in said Mortgage
Loan Schedule or, if in the course of its review, the Trustee determines that
such Mortgage File is otherwise defective in any material respect, the
Trustee shall promptly upon the conclusion of its review notify the Issuer
and the Credit Enhancer, and the Seller shall have a period of 90 days after
such notice within which to correct or cure any such defect; provided that
--------
the Seller shall not be obligated to correct or cure any such defect if such
defect constitutes fraud in the origination of the related Mortgage Loan
and the Seller did not, at the time of origination or on the Closing Date,
have actual knowledge of such fraud.
The Trustee shall have no responsibility for reviewing any Mortgage File
except as expressly provided in this Section 2(a). In reviewing any Mortgage
File pursuant to this Section, the Trustee shall have no responsibility for
determining whether any document is valid and binding, whether the text of
any assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction, whether any Person executing any document is
authorized to do so or whether any signature thereon is genuine, but shall
only be required to determine whether a document has been executed, that it
appears to be what it purports to be, and, where applicable, that it purports
to be recorded.
(b) Acceptance by Trustee; Retransfer of Mortgage Loans.
---------------------------------------------------
The Trustee hereby acknowledges its receipt of the Policy and the
Mortgage Loans, and declares that the Trustee holds and will hold such
instrument, and to the extent that any documents are delivered to it pursuant
to Section 2(a), will hold such documents, and all amounts received by it
thereunder and hereunder, in trust, upon the terms herein set forth, for the
use and benefit of all present and future Securityholders and the Credit
Enhancer. If the time to cure any defect in respect of any Mortgage Loan of
which the Trustee has notified the Issuer and the Depositor following the
review pursuant to Section 2(a) has expired or if at any time any loss is
suffered by the Trustee on behalf of the Securityholders or the Credit
Enhancer, in respect of any Mortgage Loan as a result of (i) a defect in any
document constituting a part of its Mortgage File or (ii) an Assignment of
Mortgage to the Trustee not having been recorded as required by Section
2(a),then on the next succeeding Business Day upon satisfaction of the
applicable conditions described herein, all right, title and interest of the
Trust in and to such Mortgage Loan shall be deemed to be retransferred, reas-
signed and otherwise reconveyed, without recourse, representation or
warranty, to the Depositor on such Business Day and the Asset Balance of such
Mortgage Loan shall be deducted from the Pool Balance; provided, however,
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that interest accrued on the Asset Balance of such Mortgage Loan to (the end
of the related Collection Period) (the Due Date occurring in the calendar
month immediately following the calendar month in which such repurchase
occurs) shall be the property of the Trust; provided, further, that the
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Seller shall not be obligated to make such retransfer and repurchase if such
defect or omission constitutes fraud in the origination of the related
Mortgage Loan and the Sponsor did not, at the time of such origination
or on the Closing Date, have actual knowledge of such fraud. Upon
receipt of any Eligible Substitute Mortgage Loan or then as promptly as
practicable following such deemed transfer, the Trustee shall execute such
documents and instruments of transfer presented by the Seller, in each
case without recourse, representation or warranty, and take such
other actions as shall reasonably be requested by the Seller to effect such
transfer by the Trust of such Defective Mortgage Loan pursuant to this
Section.
The Master Servicer, promptly following the transfer of a Defective
Mortgage Loan from or to the Trust pursuant to this Section, shall amend the
Mortgage Loan Schedule and make appropriate entries in its general account
records to reflect such transfer. The Master Servicer shall, following such
retransfer, appropriately xxxx its records to indicate that it is no longer
servicing such Mortgage Loan on behalf of the Trust. The Seller, promptly
following such transfer, shall appropriately xxxx its electronic ledger and
make appropriate entries in its general account records to reflect such
transfer.
As to any Eligible Substitute Mortgage Loan or Loans, the Seller shall,
if a Delivery Event has occurred, deliver to the Trustee with respect to such
Eligible Substitute Mortgage Loan or Loans such documents and agreements as
are required to be held by the Trustee in accordance with Section 2(a). For
any Collection Period during which the Seller substitutes one or more
Eligible Substitute Mortgage Loans, the Master Servicer shall determine the
Substitution Adjustment Deposit Amount which amount shall be deposited by the
Seller in the Collection Account at the time of substitution. All amounts
received in respect of the Eligible Substitute Mortgage Loan or Loans during
the Collection Period in which the circumstances giving rise to such
substitution occur shall not be a part of the Issuer and shall not be
deposited by the Master Servicer in the Collection Account. All amounts
received by the Master Servicer during the Collection Period in which the
circumstances giving rise to such substitution occur in respect of any Defec-
tive Mortgage Loan so removed by the Issuer shall be deposited by the Master
Servicer in the Collection Account. Upon such substitution, the Eligible
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Eligible Substitute Mortgage Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set forth in
Section 2(d). The procedures applied by the Seller in selecting each
Eligible Substitute Mortgage Loan shall not be materially adverse to the
interests of the Trustees, the Securityholders and the Credit Enhancer.
(c) Documents, Records and Funds in Possession of Master Servicer
-------------------------------------------------------------
to be Held for Trustee.
----------------------
(i) Notwithstanding any other provisions of this Agreement, the
Master Servicer shall transmit to the Trustee as required by this Agreement
all documents and instruments in respect of a Mortgage Loan coming into the
possession of the Master Servicer from time to time and shall account fully
to the Trustees for any funds received by the Master Servicer or which
otherwise are collected by the Master Servicer as Liquidation Proceeds or
Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and
funds collected or held by, or under the control of, the Master Servicer in
respect of any Mortgage Loans, whether from the collection of principal and
interest payments or from Liquidation Proceeds, including but not limited to,
any funds on deposit in the Collection Account, shall be held by the Master
Servicer for and on behalf of the Trustees and shall be and remain the sole
and exclusive property of the Trustees, subject to the applicable provisions
of this Agreement. The Master Servicer also agrees that it shall not create,
incur or subject any Mortgage File or any funds that are deposited in the
Collection Account, Payment Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee for the benefit of
the Securityholders, to any claim, lien, security interest, judgment, levy,
writ of attachment or other encumbrance, or assert by legal action or
otherwise any claim or right of setoff against any Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that
the Master Servicer shall be entitled to set off against and deduct from any
such funds any amounts that are properly due and payable to the Master
Servicer under this Agreement.
(ii) The Master Servicer hereby acknowledges that concurrently with
the execution of this Agreement, the Trustee has acquired and holds a
security interest in the Trustee Mortgage Files and in all Mortgage Loans
represented by such Mortgage Files and in all funds now or hereafter held by,
or under the control of, the Master Servicer that are collected by the Master
Servicer in connection with the Mortgage Loans, whether as Scheduled
Payments, as Principal Prepayments, or as Liquidation Proceeds or Insurance
Proceeds, and in all proceeds of the foregoing and proceeds of proceeds (but
excluding any Master Servicing Fees, Servicing Fees, Trustee Fees and any
other amounts or reimbursements to which the Master Servicer is entitled
under this Agreement). The Master Servicer agrees that so long as the
Mortgage Loans are assigned to the Trustee, all Master Servicer Mortgage
Files and Trustee Mortgage Files (and any documents or instruments
constituting a part of such files), and such funds which come into the
possession or custody of, or which are subject to the control of, the Master
Servicer shall be held by the Master Servicer for and on behalf of the
Trustee as the Trustee's agent and bailee for purposes of perfecting
the Trustee's security interest therein, as provided by Section 9-305
of the Uniform Commercial Code of the state in which such property
is located, or by other laws, as specified in Section _____ of the
Indenture. The Master Servicer hereby accepts such agency and
acknowledges that the Trustee, as secured party, will be deemed to
have possession at all times of all Mortgage Files
and any other documents or instruments constituting a part of such files,
such funds and other items for purposes of Section 9-305 of the Uniform
Commercial Code of the state in which such property is held by the Master
Servicer.
(d) Representations, Warranties and Covenants of the Seller and
-----------------------------------------------------------
the Master Servicer.
-------------------
(i) (IndyMac, Inc.), in its capacities as Seller and Master Servicer,
hereby makes the representations and warranties set forth in Schedule II
hereto, and by this reference incorporated herein, to the Depositor and the
Trustee, as of the Closing Date, or if so specified therein, as of the Cut-
off Date.
(ii) The Seller, in its capacity as Seller, hereby makes the
representations and warranties set forth in Schedule III hereto, and by this
reference incorporated herein, to the Depositor and the Trustee, as of the
Closing Date, or if so specified therein, as of the Cut-off Date.
(iii) Upon discovery by any of the parties hereto of a breach of a
representation or warranty made pursuant to Section 2(d)(ii) that materially
and adversely affects the interests of the Securityholders in the related
Mortgage Loan, the party discovering such breach shall give prompt notice
thereof to the other parties. The Seller hereby covenants that within 90
days of the earlier of its discovery or its receipt of written notice from
any party of a breach of any representation or warranty made pursuant to
Section 2(d)(ii) which materially and adversely affects the interests of the
Securityholders in any Mortgage Loan, it shall cure such breach in all
material respects, and if such breach is not so cured, shall, (i) if such 90-
day period expires prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Issuer and
---------------------
substitute in its place a Substitute Mortgage Loan, in the manner and subject
to the conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the
manner set forth below; provided, however, that any such substitution
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pursuant to (i) above shall not be effected prior to the delivery to the
Trustees of the Opinion of Counsel required by (Section ____ {delivery of
opinion}) hereof, if any, and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the Trustee of a
Request for Release substantially in the form of Exhibit D and the Mortgage
File for any such Substitute Mortgage Loan; provided, further, that, anything
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to the contrary herein notwithstanding, Seller shall have no obligation to
cure any such breach or to repurchase or substitute for such affected
Mortgage Loan if the substance of such breach constitutes fraud in the
origination of such affected Mortgage Loan and the Seller, at the time of
such origination and on the Closing Date, did not have actual knowledge of
such fraud. The Seller shall promptly reimburse the Master Servicer and the
Trustee for any expenses reasonably incurred by the Master Servicer or any
Trustee in respect of enforcing the remedies for such breach.
With respect to any Substitute Mortgage Loan or Loans, the Seller shall
deliver to the Trustee for the benefit of the Securityholders the Mortgage
Note, the Mortgage, the related assignment of the Mortgage, and such other
documents and agreements as are required by Section 2(a), with the Mortgage
Note endorsed and the Mortgage assigned as required by Section 2(a). No
substitution is permitted to be made in any calendar month after the
Determination Date for such month. Scheduled Payments due with respect to
Substitute Mortgage Loans in the month of substitution shall not be part of
the Issuer and will be retained by the Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Securityholders will include the monthly payment due on any Deleted Mortgage
Loan for such month and thereafter the Seller shall be entitled to retain all
amounts received in respect of such Deleted Mortgage Loan. The Master
Servicer shall amend the Mortgage Loan Schedule for the benefit of the
Securityholders to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Substitute Mortgage Loan or Loans and the Master Servicer
shall deliver the amended Mortgage Loan Schedule to the Trustees. Upon such
substitution, the Substitute Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Seller shall be deemed to
have made with respect to such Substitute Mortgage Loan or Loans, as of the
date of substitution, the representations and warranties made pursuant to
Section 2(d)(ii) with respect to such Mortgage Loan. Upon any such
substitution and the deposit to the Collection Account of the amount required
to be deposited therein in connection with such substitution as described in
the following paragraph, the Trustee shall release the Mortgage File held for
the benefit of the Securityholders relating to such Deleted Mortgage Loan to
the Seller and shall execute and deliver at the Seller's direction such
instruments of transfer or assignment prepared by the Seller, in each case
without recourse, as shall be necessary to vest title in the Seller, or its
designee, the Trustee's interest in any Deleted Mortgage Loan substituted for
pursuant to this Section 2(d).
For any month in which the Seller substitutes one or more Substitute
Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer
will determine the amount (if any) by which the aggregate
principal balance of all such Substitute Mortgage Loans as of the date of
substitution is less than the aggregate Stated Principal Balance of all such
Deleted Mortgage Loans (after application of the scheduled principal portion
of the monthly payments due in the month of substitution). The amount of
such shortage (the "Substitution Adjustment Amount") plus an amount equal to
------------------------------
the aggregate of any unreimbursed Advances with respect to such Deleted
Mortgage Loans shall be deposited in the Collection Account by the Seller on
or before the Payment Account Deposit Date for the Distribution Date in the
month succeeding the calendar month during which the related Mortgage Loan
became required to be purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage Loan, the
Purchase Price therefor shall be deposited in the Collection Account pursuant
to Section 3(h) on or before the Payment Account Deposit Date for the
Distribution Date in the month following the month during which the Seller
became obligated hereunder to repurchase or replace such Mortgage Loan and
upon such deposit of the Purchase Price, the delivery of the Opinion of
Counsel required by Section 2(d) and receipt of a Request for Release in the
form of Exhibit D hereto, the Trustee shall release the related Mortgage File
held for the benefit of the Securityholders to such Person, and the Trustee
shall execute and deliver at such Person's direction such instruments of
transfer or assignment prepared by such Person, in each case without
recourse, as shall be necessary to transfer title from the Trustee. It is
understood and agreed that the obligation under this Agreement of any Person
to so cure, repurchase or replace any Mortgage Loan as to which such a breach
has occurred and is continuing shall constitute the sole remedy against such
Persons respecting any breach available to Securityholders, the Depositor or
the Trustees on their behalf.
The representations and warranties made pursuant to this Section 2(d)
shall survive delivery of the respective Mortgage Files to the Trustee for
the benefit of the Securityholders.
(e) Covenants of the Master Servicer.
--------------------------------
The Master Servicer hereby covenants to the Depositor and the Trustees
as follows:
(i) the Master Servicer shall comply in the performance of
its obligations under this Agreement with all reasonable rules and
requirements of the insurer under each Required Insurance Policy; and
(ii) no written information, certificate of an officer,
statement furnished in writing or written report delivered to the
Depositor, any affiliate of the Depositor or any Trustee and prepared
by the Master Servicer pursuant to this Agreement will contain any
untrue statement of a material fact or omit to state a material
fact necessary to make such information, certificate, statement or
report not misleading.
(f) Covenants of the Depositor.
--------------------------
The Depositor hereby covenants that, except for the transfer under
the Indenture, the Depositor will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur, assume or suffer to exist
any Lien on any Mortgage Loan, whether now existing or hereafter
created, or any interest therein; the Depositor will notify the Trustee
of the existence of any Lien on any Mortgage Loan immediately upon
discovery thereof; and the Depositor will defend the right, title and
interest of the Trust in, to and under the Mortgage Loans, whether now
existing or hereafter created, against all claims of third parties
claiming through or under the Depositor; provided, however, that nothing
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in this Section 2(e) shall prevent or be deemed to prohibit the
Depositor from suffering to exist upon any of the Mortgage Loans any
Liens for municipal or other local taxes and other governmental charges
if such taxes or governmental charges shall not at the time be due
and payable or if the Depositor shall currently be contesting the
validity thereof in good faith by appropriate proceedings and shall
have set aside on its books adequate reserves with respect thereto.
3. Administration and Servicing of Mortgage Loans.
----------------------------------------------
The parties agree that, subject to the provisions of Section 7 hereof,
the Master Servicer shall service the Mortgage Loans in the manner and on the
terms and conditions set forth below:
(a) Master Servicer to Service Mortgage Loans.
-----------------------------------------
(i) The Master Servicer shall service and administer the Mortgage
Loans in a manner consistent with the terms of this Agreement and with
general industry practice and shall have full power and authority,
acting alone or through a subservicer, to do any and all things in
connection with such servicing and administration which it may deem
necessary or desirable, it being understood, however, that the Master
Servicer shall at all times remain responsible to the Trustees, the
Securityholders and the Credit Enhancer for the performance of its
duties and obligations hereunder in accordance with the terms hereof.
Any amounts received by any subservicer in respect of a Mortgage Loan
shall be deemed to have been received by the Master Servicer whether or
not actually received by it. Without limiting the
generality of the foregoing, the Master Servicer shall continue, and is
hereby authorized and empowered by the Trustee, to execute and deliver,
on behalf of itself, the Securityholders and the Trustee, or any of
them, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge and all other comparable
instruments, with respect to the Mortgage Loans and with respect to the
Mortgaged Properties. The Trustee shall, upon the written request of a
Servicing Officer, furnish the Master Servicer with any powers of
attorney and other documents necessary or appropriate to enable the
Master Servicer to carry out its servicing and administrative duties
hereunder. The Master Servicer in such capacity may also consent to the
placing of a lien senior to that of any Mortgage on the related
Mortgaged Property, provided that
(x) such Mortgage succeeded to a first lien position after
the related Mortgage Loan was conveyed to the Trust and,
immediately following the placement of such senior lien, such
Mortgage is in a second lien position and the outstanding principal
amount of the mortgage loan secured by such subsequent senior lien
is no greater than the outstanding principal amount of the senior
mortgage loan secured by the Mortgaged Property as of the date the
related Mortgage Loan was originated; or
(y) the Mortgage relating to such Mortgage Loan was in a
second lien position as of the Cut-off Date and the new senior lien
secures a mortgage loan that refinances an existing first mortgage
loan and the outstanding principal amount of the replacement first
mortgage loan immediately following such refinancing is not greater
than the outstanding principal amount of such existing first
mortgage loan at the date of origination of such Mortgage Loan;
provided, further, that such senior lien does not secure a note that provides
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for negative amortization. Notwithstanding the foregoing, the Master
Servicer can consent to the placing of liens senior to that of a Mortgage on
the related Mortgaged Property which have a principal balance in excess of
the principal balance of the senior lien it replaces on Mortgage Loans having
in the aggregate Asset Balances not in excess of ___% of the Cut-off Date
Pool Balance; provided, however, that, with respect to Mortgage Loans which
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as of the Cut-off Date had Combined Loan-to-Value Ratios in excess of ___%,
the aggregate Asset Balance of such Mortgage Loans with respect to which the
senior lien may be so modified shall not exceed _____% of the Cut-off Date
Pool Balance (such ___% and _____% herein referred to as the "Increased
Senior Lien Limitation"). Any such increase to the principal balance of the
senior lien shall not exceed the greater of $_______ and _____% of the
principal balance of the senior lien prior to such increase.
The Master Servicer may also, without prior approval from the Rating
Agencies or the Credit Enhancer, increase the Credit Limits on Mortgage Loans
provided that (i) new appraisals are obtained and the Combined Loan-to-Value
Ratios of the Mortgage Loans after giving effect to such increase are less
than or equal to the Combined Loan-to-Value Ratios or the Mortgage Loans as
of the Cut-off Date and (ii) such increases are consistent with the Master
Servicer's underwriting policies. In addition, the Master Servicer may
increase the Credit Limits on Mortgage Loans having aggregate balances of up
to ____% of the aggregate Cut-off Date Pool Balance, without obtaining new
appraisals provided that (i) the increase in the Credit Limit does not cause
the Combined Loan-to-Value Ratios of the Mortgage Loans to exceed _____% and
(ii) the increase is consistent with the Master Servicer's underwriting
policies.
Furthermore, the Master Servicer may, without prior approval from the
Rating Agencies and the Credit Enhancer solicit Mortgagors for a reduction in
Loan Rates; provided that the Master Servicer can only reduce such Loan
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Rates on up to ____% of the Mortgage Loans by Cut-off Date Pool Balance. Any
such solicitations shall not result in a reduction in the weighted average
Gross Margin of the Mortgage Loans in the pool by more than ____ basis points
taking into account any such prior reductions.
In addition, the Master Servicer may agree to changes in the terms of a
Mortgage Loan at the request of the Mortgagor provided that such changes
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(i) do not materially and adversely affect the interests of Securityholders
or the Credit Enhancer and (ii) are consistent with prudent and customary
business practice as evidenced by a certificate signed by a Servicing Officer
delivered to the Trustee and the Credit Enhancer.
In addition to the foregoing, the Master Servicer may solicit Mortgagors
to change any other terms of the related Mortgage Loans, provided that such
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changes (i) do not materially and adversely affect the interest of
Securityholders or the Credit Enhancer and (ii) are consistent with prudent
and customary business practice as evidenced by a certificate signed by a
Servicing Officer delivered to the Trustee and the Credit Enhancer. Nothing
herein shall limit the right of the Master Servicer to solicit Mortgagors
with respect to new loans (including mortgage loans) that are not Mortgage
Loans.
The relationship of the Master Servicer (and of any successor to the
Master Servicer as servicer under this Agreement) to the Trustee under this
Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
(ii) In the event that the rights, duties and obligations of the
Master Servicer are terminated hereunder, any successor to the Master
Servicer in its sole discretion may, to the extent permitted by
applicable law, terminate the existing subservicer arrangements with any
subservicer or assume the terminated Master Servicer's rights under such
subservicing arrangements which termination or assumption will not
violate the terms of such arrangements.
(b) Subservicing; Enforcement of the Obligations of Servicers.
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(i) The Master Servicer may arrange for the subservicing of any
Mortgage Loan by a Subservicer pursuant to a subservicing agreement;
provided, however, that such subservicing arrangement and the terms of the
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related subservicing agreement must provide for the servicing of such
Mortgage Loans in a manner consistent with the servicing arrangements
contemplated hereunder. Unless the context otherwise requires, references in
this Agreement to actions taken or to be taken by the Master Servicer in
servicing the Mortgage Loans include actions taken or to be taken by a
Subservicer on behalf of the Master Servicer. Notwithstanding the provisions
of any subservicing agreement, any of the provisions of this Agreement
relating to agreements or arrangements between the Master Servicer and a
Subservicer or reference to actions taken through a Subservicer or otherwise,
the Master Servicer shall remain obligated and liable to the Depositor, the
Trustees and the Securityholders for the servicing and administration of the
Mortgage Loans in accordance with the provisions of this Agreement without
diminution of such obligation or liability by virtue of such subservicing
agreements or arrangements or by virtue of indemnification from the
Subservicer and to the same extent and under the same terms and conditions as
if the Master Servicer alone were servicing and administering the Mortgage
Loans. All actions of each Subservicer performed pursuant to the related
subservicing agreement shall be performed as an agent of the Master Servicer
with the same force and effect as if performed directly by the Master
Servicer.
(ii) For purposes of this Agreement, the Master Servicer shall be
deemed to have received any collections, recoveries or payments with respect
to the Mortgage Loans that are received by a Subservicer regardless of
whether such payments are remitted by the Subservicer to the Master Servicer.
(iii) As part of its servicing activities hereunder, the Master
Servicer, for the benefit of the Trustees and the Securityholders, shall use
its best reasonable efforts to enforce the obligations of each
Subservicer under the related Subservicing Agreement, to the extent that
the non-performance of any such obligation would have material and
adverse effect on a Mortgage Loan. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of
Subservicing Agreements and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the
Master Servicer, in its good faith business judgment, would require were it
the owner of the related Mortgage Loans. The Master Servicer shall pay the
costs of such enforcement at its own expense, and shall be reimbursed
therefor only (i) from a general recovery resulting from such enforcement to
the extent, if any, that such recovery exceeds all amounts due in respect of
the related Mortgage Loan or (ii) from a specific recovery of costs, expenses
or attorneys fees against the party against whom such enforcement is
directed.
(c) Successor Servicers.
-------------------
The Master Servicer shall be entitled to terminate any Subservicing
Agreement that may exist in accordance with the terms and conditions of such
Subservicing Agreement and without any limitation by virtue of this
Agreement; provided, however, that in the event of termination of any
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Subservicing Agreement by the Master Servicer or the Subservicer, the Master
Servicer shall either act as servicer of the related Mortgage Loan or enter
into a Subservicing Agreement with a successor Subservicer which will be
bound by the terms of the related Subservicing Agreement. If the Master
Subservicer or any affiliate of the Master Servicer acts as Subservicer, it
will not assume liability for the representations and warranties of the
Subservicer which it replaces. If the Master Subservicer enters into a
Subservicing Agreement with a successor Subservicer, the Master Servicer
shall use reasonable efforts to have the successor Subservicer assume
liability for the representations and warranties made by the terminated
Subservicer in respect of the related Mortgage Loans and, in the event of any
such assumption by the successor Subservicer, the Master Servicer may, in the
exercise of its business judgment, release the terminated Servicer from
liability for such representations and warranties.
(d) Liability of the Master Servicer.
--------------------------------
Notwithstanding any Subservicing Agreement, any of the provisions of
this Agreement relating to agreements or arrangements between the Master
Servicer or a Subservicer or references to actions taken through a
Subservicer or otherwise, the Master Servicer shall remain obligated and
liable to the Trustees and Securityholders for the servicing and
administering of the Pledged Mortgages in accordance with the provisions of
Section 3(a) without diminution of such obligation or liability by virtue of
such Subservicing Agreements or arrangements or by virtue of
indemnification from the Subservicer and to the same extent and under the
same terms and conditions as if the Master Servicer alone were servicing and
administering the Pledged Mortgages. The Master Servicer shall be entitled
to enter into any agreement with a Subservicer for indemnification of the
Master Servicer and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification.
(e) No Contractual Relationship Between Subservicers and the
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Trustees.
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Any Servicing Agreement that may be entered into and any other
transactions or services relating to the Mortgage Loans involving a Servicer
in its capacity as such and not as an originator shall be deemed to be
between the Subservicer and the Master Servicer alone and the Trustees and
Securityholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Subservicer in
its capacity as such except as set forth in Section 3(g).
(f) Rights of the Depositor and the Trustees in Respect of the
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Master Servicer.
---------------
The Depositor may, but is not obligated to, enforce the obligations of
the Master Servicer hereunder and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
hereunder and in connection with any such defaulted obligation to exercise
the related rights of the Master Servicer hereunder; provided that the Master
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Servicer shall not be relieved of any of its obligations hereunder by virtue
of such performance by the Depositor or its designee. Neither the Trustees
nor the Depositor shall have any responsibility or liability for any action
or failure to act by the Master Servicer nor shall the Trustees or the
Depositor be obligated to supervise the performance of the Master Servicer
hereunder or otherwise.
(g) Trustee to Act as Master Servicer.
---------------------------------
In the event that the Master Servicer shall for any reason no longer be
the Master Servicer hereunder (including by reason of an Event of Default),
the Trustee or its successor shall thereupon assume all of the rights and
obligations of the Master Servicer hereunder arising thereafter (except that
the Trustee shall not be (i) liable for losses of the Master Servicer
pursuant to Section 3(l) hereof or any acts or omissions of the predecessor
Master Servicer hereunder), (ii) obligated to make Advances if it is
prohibited from doing so by applicable law, (iii) obligated to effectuate
repurchases or substitutions of Mortgage Loans hereunder including, but not
limited to, repurchases or substitutions of Mortgage Loans pursuant to
Section 2(c)(ii) or 2(d) hereof, (iv) responsible for expenses of the Master
Servicer pursuant to Section 2(d) or (v) deemed to have made any
representations and warranties of the Master Servicer hereunder). Any such
assumption shall be subject to Section 7(b) hereof. If the Master Servicer
shall for any reason no longer be the Master Servicer (including by reason of
any Event of Default), the Trustee or its successor shall succeed to any
rights and obligations of the Master Servicer under each subservicing
agreement.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party all documents
and records relating to each subservicing agreement or substitute
subservicing agreement and the Mortgage Loans then being serviced thereunder
and an accounting of amounts collected or held by it and otherwise use its
best efforts to effect the orderly and efficient transfer of the substitute
subservicing agreement to the assuming party.
(h) Collection of Mortgage Loan Payments; Collection Accounts;
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Payment Account.
---------------
(i) The Master Servicer shall make reasonable efforts in
accordance with the customary and usual standards of practice of prudent
mortgage servicers to collect all payments called for under the terms and
provisions of the Mortgage Loans to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any related
Required Insurance Policy. Consistent with the foregoing, the Master
Servicer may in its discretion (i) waive any late payment charge or any
prepayment charge or penalty interest in connection with the prepayment of a
Mortgage Loan and (ii) extend the due dates for payments due on a Mortgage
Note for a period not greater than 180 days; provided, however, that the
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Master Servicer cannot extend the maturity of any such Mortgage Loan past the
date on which the final payment is due on the latest maturing Mortgage Loan
as of the Cut-off Date. In the event of any such arrangement, the Master
Servicer shall make Advances on the related Mortgage Loan in accordance with
the provisions of Section 4 during the scheduled period in accordance with
the amortization schedule of such Mortgage Loan without modification thereof
by reason of such arrangements. The Master Servicer shall not be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note or otherwise or against any public
or governmental authority with respect to a taking or condemnation) if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
(ii) The Master Servicer shall establish and maintain a Collection
Account into which the Master Servicer shall deposit or cause to be deposited
on a daily basis within one Business Day of receipt, except as otherwise
specifically provided herein, the following payments and collections
remitted by Subservicers or received by it in respect of Mortgage Loans
subsequent to the Cut-off Date (other than in respect of principal
and interest due on the Mortgage Loans on or before the
Cut-off Date) and the following amounts required to be deposited hereunder:
(A) all collections on account of principal on the Mortgage Loans;
(B) all collections on account of interest on the Mortgage Loans,
net of the related Master Servicing Fee;
(C) all Insurance Proceeds and Liquidation Proceeds, other than
proceeds to be applied to the restoration or repair of the Mortgaged
Property or released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures;
(D) any amount required to be deposited by the Master Servicer
pursuant to Section 3(h)(v) in connection with any losses on Permitted
Investments;
(E) any amounts required to be deposited by the Master Servicer
pursuant to Section 3(l)(ii), 3(l)(iv), and in respect of net monthly
rental income from REO Property pursuant to Section 3(n) hereof;
(F) all Substitution Adjustment Amounts;
(G) all Advances made by the Master Servicer pursuant to Section
4; and
(H) any other amounts required to be deposited hereunder.
The foregoing requirements for remittance by the Master Servicer shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of prepayment penalties,
late payment charges or assumption fees, if collected, need not be remitted
by the Master Servicer. In the event that the Master Servicer shall remit
any amount not required to be remitted, it may at any time withdraw or direct
the institution maintaining the Collection Account to withdraw such amount
from the Collection Account, any provision herein to the contrary
notwithstanding. Such withdrawal or direction may be accomplished by
delivering written notice thereof to the Trustee or such other institution
maintaining the Collection Account which describes the amounts deposited in
error in the Collection Account. The Master Servicer shall maintain adequate
records with respect to all withdrawals made pursuant to this Section. All
funds deposited in the Collection Account shall be held in trust for
the Securityholders until withdrawn in accordance with Section 3(k).
(iii) The Trustee shall establish and maintain, on behalf of
the Securityholders, the Payment Account. The Trustee shall, promptly upon
receipt, deposit in the Payment Account and retain therein the following:
(A) the aggregate amount remitted by the Master Servicer to the
Trustee pursuant to Section 3(k)(i)(I);
(B) any amount deposited by the Master Servicer pursuant to
Section 3(h)(iv) in connection with any losses on Permitted Investments;
and
(C) any other amounts deposited hereunder which are required to be
deposited in the Payment Account.
In the event that the Master Servicer shall remit any amount not
required to be remitted, it may at any time direct the Trustee to withdraw
such amount from the Payment Account, any provision herein to the contrary
notwithstanding. Such direction may be accomplished by delivering an
Officer's Certificate to the Trustee which describes the amounts deposited in
error in the Payment Account. All funds deposited in the Payment Account
shall be held by the Trustee in trust for the Securityholders until disbursed
in accordance with this Agreement or withdrawn in accordance with Section
3(k). In no event shall the Trustee incur liability for withdrawals from the
Payment Account at the direction of the Master Servicer.
(iv) Each institution at which the Collection Account or the
Payment Account is maintained shall invest the funds therein as directed in
writing by the Master Servicer in Permitted Investments, which shall mature
not later than (i) in the case of the Collection Account, the second Business
Day next preceding the related Payment Account Deposit Date (except that if
such Permitted Investment is an obligation of the institution that maintains
such account, then such Permitted Investment shall mature not later than the
Business Day next preceding such Payment Account Deposit Date) and (ii) in
the case of the Payment Account, the Business Day next preceding the
Distribution Date (except that if such Permitted Investment is an obligation
of the institution that maintains such fund or account, then such Permitted
Investment shall mature not later than such Distribution Date) and, in each
case, shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the
benefit of the Securityholders. All income and gain net of any losses
realized from any such investment of funds on deposit in the Collection
Account or the Payment Account shall be for the benefit of the Master
Servicer as servicing compensation and shall be remitted to it monthly
as provided herein. The amount of any realized losses in the Collection
Account or the Payment Account incurred in any such account in respect
of any such investments shall promptly be deposited by the Master
Servicer in the Collection Account or paid to the Trustee for deposit
into the Payment Account, as applicable. The Trustee in its fiduciary
capacity shall not be liable for the amount of any loss incurred in
respect of any investment or lack of investment of funds held in
the Collection Account or the Payment Account and made in accordance with
this Section 3(h).
(v) The Master Servicer shall give notice to the Trustee, the
Seller, each Rating Agency and the Depositor of any proposed change of the
location of the Collection Account prior to any change thereof. The Trustee
shall give notice to the Master Servicer, the Seller, each Rating Agency and
the Depositor of any proposed change of the location of the Payment Account
prior to any change thereof.
(i) Collection of Taxes, Assessments and Similar Items; Escrow
----------------------------------------------------------
Accounts.
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(i) To the extent required by the related Mortgage Note and not
violative of current law, the Master Servicer shall establish and maintain
one or more accounts (each, an "Escrow Account") and deposit and retain
therein all collections from the Mortgagors (or advances by the Master
Servicer) for the payment of taxes, assessments, hazard insurance premiums or
comparable items for the account of the Mortgagors. Nothing herein shall
require the Master Servicer to compel a Mortgagor to establish an Escrow
Account in violation of applicable law.
(ii) Withdrawals of amounts so collected from the Escrow Accounts
may be made only to effect timely payment of taxes, assessments, hazard
insurance premiums, condominium or PUD association dues, or comparable items,
to reimburse the Master Servicer out of related collections for any payments
made pursuant to Sections 3(a) hereof (with respect to taxes and assessments
and insurance premiums) and 3(l) hereof (with respect to hazard insurance),
to refund to any Mortgagors any sums determined to be overages, to pay
interest, if required by law or the terms of the related Mortgage or Mortgage
Note, to Mortgagors on balances in the Escrow Account or to clear and
terminate the Escrow Account at the termination of this Agreement in
accordance with Section 8(a) hereof. The Escrow Accounts shall not be a part
of the Issuer.
(iii) The Master Servicer shall advance any payments referred
to in Section 3(i)(i) that are not timely paid by the Mortgagors on the date
when the tax, premium or other cost for which such payment is intended is
due, but the Master Servicer shall be required so to advance only to the
extent that such advances, in the good faith judgment of the Master
Servicer, will be recoverable by the Master Servicer out of Insurance
Proceeds, Liquidation Proceeds or otherwise.
(j) Access to Certain Documentation and Information Regarding the
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Mortgage Loans.
--------------
The Master Servicer shall afford the Depositor and the Trustee
reasonable access to all records and documentation regarding the Mortgage
Loans and all accounts, insurance information and other matters relating to
this Agreement, such access being afforded without charge, but only upon
reasonable request and during normal business hours at the office designated
by the Master Servicer.
Upon reasonable advance notice in writing, the Master Servicer will
provide to each Securityholder which is a savings and loan association, bank
or insurance company certain reports and reasonable access to information and
documentation regarding the Mortgage Loans sufficient to permit such
Securityholder to comply with applicable regulations of the OTS or other
regulatory authorities with respect to investment in the Certificates;
provided that the Master Servicer shall be entitled to be reimbursed by each
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such Securityholder for actual expenses incurred by the Master Servicer in
providing such reports and access.
(k) Permitted Withdrawals from the Note Account.
-------------------------------------------
(i) The Master Servicer may from time to time make withdrawals
from the Collection Account for the following purposes:
(A) to pay to the Master Servicer (to the extent not previously
retained by the Master Servicer) the servicing compensation to which it
is entitled pursuant to Section 5, and to pay to the Master Servicer, as
additional servicing compensation, earnings on or investment income with
respect to funds in or credited to the Collection Account;
(B) to reimburse the Master Servicer for unreimbursed Advances
made by it, such right of reimbursement pursuant to this subclause (ii)
being limited to amounts received on the Mortgage Loan(s) in respect of
which any such Advance was made;
(C) to reimburse the Master Servicer for any Nonrecoverable
Advance previously made;
(D) to reimburse the Master Servicer for Insured Expenses from the
related Insurance Proceeds;
(E) to reimburse the Master Servicer for (a) unreimbursed
Servicing Advances, the Master Servicer's right to reimbursement
pursuant to this clause (a) with respect to any Mortgage Loan being
limited to amounts received on such Mortgage Loan(s) which represent
late recoveries of the payments for which such advances were made
pursuant to Section 3(a) or Section 3(i) and (b) for unpaid Master
Servicing Fees as provided in Section 3(n) hereof;
(F) to pay to the purchaser, with respect to each Mortgage Loan or
property acquired in respect thereof that has been purchased pursuant to
Section 2(c)(ii), 2(d) or 3(n), all amounts received thereon after the
date of such purchase;
(G) to reimburse the Seller, the Master Servicer or the Depositor
for expenses incurred by any of them and reimbursable pursuant to
Section 6(c) hereof;
(H) to withdraw any amount deposited in the Collection Account and
not required to be deposited therein;
(I) on or prior to the Payment Account Deposit Date, to withdraw
an amount equal to the related Available Funds and the Trustees Fees for
such Distribution Date and remit such amount to the Trustee for deposit
in the Payment Account; and
(J) to clear and terminate the Collection Account upon termination
of this Agreement pursuant to Section 8 (a) hereof.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the Collection Account pursuant to such subclauses (i), (ii),
(iv), (v) and (vi). Prior to making any withdrawal from the Collection
Account pursuant to subclause (iii), the Master Servicer shall deliver to the
Trustee an Officer's Certificate of a Servicing Officer indicating the amount
of any previous Advance determined by the Master Servicer to be a
Nonrecoverable Advance and identifying the related Mortgage Loans(s), and
their respective portions of such Nonrecoverable Advance.
(ii) The Trustee shall withdraw funds from the Payment Account for
distributions to Securityholders in the manner specified in this Agreement
(and to withhold from the amounts so withdrawn, the amount of any taxes that
it is authorized to withhold pursuant to the last paragraph of (Section
8.11/trustee)). In addition, the Trustee may from time to time make
withdrawals from the Payment Account for the following purposes:
(A) to pay to itself the Trustee Fee for the related Distribution
Date;
(B) to pay to the Master Servicer as additional servicing
compensation earnings on or investment income with respect to funds in
the Payment Account;
(C) to withdraw and return to the Master Servicer any amount
deposited in the Payment Account and not required to be deposited
therein; and
(D) to clear and terminate the Payment Account upon termination of
the Agreement pursuant to 8(a) hereof.
(l) Maintenance of Hazard Insurance; Maintenance of Primary
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Insurance Policies.
------------------
(i) The Master Servicer shall cause to be maintained, for each
Mortgage Loan, hazard insurance with extended coverage in an amount that is
at least equal to the lesser of (i) the maximum insurable value of the
improvements securing such Mortgage Loan or (ii) the greater of (y) the
outstanding principal balance of the Mortgage Loan and (z) an amount such
that the proceeds of such policy shall be sufficient to prevent the Mortgagor
and/or the mortgagee from becoming a co-insurer. Each such policy of
standard hazard insurance shall contain, or have an accompanying endorsement
that contains, a standard mortgagee clause. Any amounts collected by the
Master Servicer under any such policies (other than the amounts to be applied
to the restoration or repair of the related Mortgaged Property or amounts
released to the Mortgagor in accordance with the Master Servicer's normal
servicing procedures) shall be deposited in the Collection Account. Any cost
incurred by the Master Servicer in maintaining any such insurance shall not,
for the purpose of calculating monthly distributions to the Securityholders
or remittances to the Trustee for their benefit, be added to the principal
balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan so permit. Such costs shall be recoverable by the Master Servicer out
of late payments by the related Mortgagor or out of Liquidation Proceeds to
the extent permitted by Section 3(k) hereof. It is understood and agreed
that no earthquake or other additional insurance is to be required of any
Mortgagor or maintained on property acquired in respect of a Mortgage other
than pursuant to such applicable laws and regulations as shall at any time be
in force and as shall require such additional insurance. If the Mortgaged
Property is located at the time of origination of the Mortgage Loan in a
federally designated special flood hazard area and such area is participating
in the national flood insurance program, the Master Servicer shall cause
flood insurance to be maintained with respect to such Mortgage Loan. Such
flood insurance shall be in an amount equal to the least of (i) the
original principal balance of the related Mortgage Loan, (ii)
the replacement value of the improvements which are part of such
Mortgaged Property, and (iii) the maximum amount of such insurance available
for the related Mortgaged Property under the national flood insurance program.
(ii) In the event that the Master Servicer shall obtain and
maintain a blanket policy insuring against hazard losses on all of the
Mortgage Loans, it shall conclusively be deemed to have satisfied its
obligations as set forth in the first sentence of this Section, it being
understood and agreed that such policy may contain a deductible clause on
terms substantially equivalent to those commercially available and maintained
by comparable servicers. If such policy contains a deductible clause, the
Master Servicer shall, in the event that there shall not have been maintained
on the related Mortgaged Property a policy complying with the first sentence
of this Section, and there shall have been a loss that would have been
covered by such policy, deposit in the Collection Account the amount not
otherwise payable under the blanket policy because of such deductible clause.
In connection with its activities as Master Servicer of the Mortgage Loans,
the Master Servicer agrees to present, on behalf of itself, the Depositor,
and the Trustee for the benefit of the Securityholders, claims under any such
blanket policy.
(iii) The Master Servicer shall not take any action which would
result in non-coverage under any applicable Primary Insurance Policy of any
loss which, but for the actions of the Master Servicer, would have been
covered thereunder. The Master Servicer shall not cancel or refuse to renew
any such Primary Insurance Policy that is in effect at the date of the
initial issuance of the Notes and the Certificates and is required to be kept
in force hereunder unless the replacement Primary Insurance Policy for such
canceled or non-renewed policy is maintained with a Qualified Insurer. The
Master Servicer shall not be required to maintain any Primary Insurance
Policy with respect to any Mortgage Loan with a Loan-to-Value Ratio less than
or equal to 80% as of any date of determination or, based on a new appraisal,
the principal balance of such Mortgage Loan represents 80% or less of the new
appraised value. The Master Servicer agrees to effect the timely payment of
the premiums on each Primary Insurance Policy, and such costs not otherwise
recoverable shall be recoverable by the Master Servicer from the related
liquidation proceeds.
(iv) In connection with its activities as Master Servicer of the
Mortgage Loans, the Master Servicer agrees to present on behalf of itself,
the Trustee and Securityholders, claims to the insurer under any Primary
Insurance Policies and, in this regard, to take such reasonable action as
shall be necessary to permit recovery under any Primary
Insurance Policies respecting defaulted Mortgage Loans. Any amounts
collected by the Master Servicer under any Primary Insurance
Policies shall be deposited in the Collection Account.
(m) Enforcement of Due-On-Sale Clauses; Assumption Agreements.
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(i) Except as otherwise provided in this Section, when any
property subject to a Mortgage has been conveyed by the Mortgagor, the Master
Servicer shall to the extent that it has knowledge of such conveyance,
enforce any due-on-sale clause contained in any Mortgage Note or Mortgage, to
the extent permitted under applicable law and governmental regulations, but
only to the extent that such enforcement will not adversely affect or
jeopardize coverage under any Required Insurance Policy. Notwithstanding the
foregoing, the Master Servicer is not required to exercise such rights with
respect to a Mortgage Loan if the Person to whom the related Mortgaged
Property has been conveyed or is proposed to be conveyed satisfies the terms
and conditions contained in the Mortgage Note and Mortgage related thereto
and the consent of the mortgagee under such Mortgage Note or Mortgage is not
otherwise so required under such Mortgage Note or Mortgage as a condition to
such transfer. In the event that the Master Servicer is prohibited by law
from enforcing any such due-on-sale clause, or if coverage under any Required
Insurance Policy would be adversely affected, or if nonenforcement is
otherwise permitted hereunder, the Master Servicer is authorized, subject to
Section 3(m)(ii), to take or enter into an assumption and modification
agreement from or with the person to whom such property has been or is about
to be conveyed, pursuant to which such person becomes liable under the
Mortgage Note and, unless prohibited by applicable state law, the Mortgagor
remains liable thereon, provided that the Mortgage Loan shall continue to be
covered (if-so covered before the Master Servicer enters such agreement) by
the applicable Required Insurance Policies. The Master Servicer, subject to
Section 3(m)(ii), is also authorized with the prior approval of the insurers
under any Required Insurance Policies to enter into a substitution of
liability agreement with such Person, pursuant to which the original
Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, the Master Servicer shall not be deemed to be in default under
this Section by reason of any transfer or assumption which the Master
Servicer reasonably believes it is restricted by law from preventing, for any
reason whatsoever.
(ii) Subject to the Master Servicer's duty to enforce any
due-on-sale clause to the extent set forth in Section 3(m)(i) hereof, in any
case in which a Mortgaged Property has been conveyed to a Person by a
Mortgagor, and such Person is to enter into an assumption agreement or
modification agreement or supplement to the Mortgage Note or Mortgage
that requires the signature of the Trustee, or if an instrument of
release signed by the Trustee is required releasing the Mortgagor from
liability on the Mortgage Loan, the Master Servicer shall prepare and
deliver or cause to be prepared and delivered to the Trustee for signature
and shall direct, in writing, the Trustee to execute the assumption
agreement with the Person to whom the Mortgaged Property is to be conveyed
and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged
Property to such Person. In connection with any such assumption, no material
term of the Mortgage Note may be changed. In addition, the substitute
Mortgagor and the Mortgaged Property must be acceptable to the Master
Servicer in accordance with its underwriting standards as then in effect.
Together with each such substitution, assumption or other agreement or
instrument delivered to the Trustee for execution by it, the Master Servicer
shall deliver an Officer's Certificate signed by a Servicing Officer stating
that the requirements of this subsection have been met in connection
therewith. The Master Servicer shall notify the Trustee that any such
substitution or assumption agreement has been completed by forwarding to the
Trustee the original of such substitution or assumption agreement, which in
the case of the original shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the
same extent as all other documents and instruments constituting a part
thereof. Any fee collected by the Master Servicer for entering into an
assumption or substitution of liability agreement will be retained by the
Master Servicer as additional servicing compensation.
(n) Realization Upon Defaulted Mortgage Loans; Repurchase of
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Certain Mortgage Loans.
----------------------
The Master Servicer shall use reasonable efforts to foreclose upon or
otherwise comparably convert the ownership of properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments.
In connection with such foreclosure or other conversion, the Master Servicer
shall follow such practices and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities and meet the requirements of the insurer under any Required
Insurance Policy; provided, however, that the Master Servicer shall not be
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required to expend its own funds in connection with any foreclosure or
towards the restoration of any property unless it shall determine (i) that
such restoration and/or foreclosure will increase the proceeds of liquidation
of the Mortgage Loan after reimbursement to itself of such expenses and
(ii) that such expenses will be recoverable to it through Liquidation
Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Collection Account). The Master Servicer shall be
responsible for all other costs and expenses incurred by it in any such
proceedings; provided, however, that it shall be entitled to reimbursement
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thereof from the liquidation proceeds with respect to the related Mortgaged
Property, as provided in the definition of Liquidation Proceeds. If the
Master Servicer has knowledge that a Mortgaged Property which the Master
Servicer is contemplating acquiring in foreclosure or by deed in lieu of
foreclosure is located within a one mile radius of any site listed in the
Expenditure Plan for the Hazardous Substance Clean Up Bond Act of 1984 or
other site with environmental or hazardous waste risks known to the Master
Servicer, the Master Servicer will, prior to acquiring the Mortgaged
Property, consider such risks and only take action in accordance with its
established environmental review procedures.
With respect to any REO Property, the deed or certificate of sale shall
be taken in the name of the Trustee for the benefit of the Securityholders,
or its nominee, on behalf of the Securityholders. The Trustee's name shall
be placed on the title to such REO Property solely as the Trustee under the
Indenture and not in its individual capacity. The Master Servicer shall
ensure that the title to such REO Property references the Indenture and the
Trustee's capacity thereunder. Pursuant to its efforts to sell such REO
Property, the Master Servicer shall either itself or through an agent
selected by the Master Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of
the interests of the Securityholders, rent the same, or any part thereof, as
the Master Servicer deems to be in the best interest of the Securityholders
for the period prior to the sale of such REO Property. The Master Servicer
shall prepare for and deliver to the Trustee a statement with respect to each
REO Property that has been rented showing the aggregate rental income
received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions.
The net monthly rental income, if any, from such REO Property shall be
deposited in the Collection Account no later than the close of business on
each Determination Date. (The Master Servicer shall perform the tax
reporting and withholding required by Sections 1445 and 6050J of the Code
with respect to foreclosures and abandonments, the tax reporting required by
Section 6050H of the Code with respect to the receipt of mortgage interest
from individuals and any tax reporting required by Section 6050P of the Code
with respect to the cancellation of indebtedness by certain financial
entities, by preparing such tax and information returns as may be required,
in the form required, and delivering the same to the Trustee for filing.)
In the event that the Issuer acquires any Mortgaged Property as
aforesaid or otherwise in connection with a default or imminent default on a
Mortgage Loan, the Master Servicer shall dispose of such Mortgaged Property
prior to two years after its acquisition by the Issuer unless the Trustee
shall have been supplied with an Opinion of Counsel to the effect that the
holding by the Issuer of such Mortgaged Property subsequent to such two-year
period will not result in the imposition of taxes on "prohibited
transactions" of the REMIC defined in Section 860F of the Code or cause the
REMIC to fail to qualify as a REMIC at any time that any Notes or
Certificates are outstanding, in which case the Issuer may continue to hold
such Mortgaged Property (subject to any conditions contained in such Opinion
of Counsel). Notwithstanding any other provision of this Agreement, no
Mortgaged Property acquired by the Issuer shall be rented (or allowed to
continue to be rented) or otherwise used for the production of income by or
on behalf of the Issuer in such a manner or pursuant to any terms that would
(i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or (ii)
subject the REMIC to the imposition of any federal, state or local income
taxes on the income earned from such Mortgaged Property under Section 860G(c)
of the Code or otherwise, unless the Master Servicer has agreed to indemnify
and hold harmless the Issuer with respect to the imposition of any such
taxes.
The decision of the Master Servicer to foreclose on a defaulted Mortgage
Loan shall be subject to a determination by the Master Servicer that the
proceeds of such foreclosure would exceed the costs and expenses of bringing
such a proceeding. The income earned from the management of any REO
Properties, net of reimbursement to the Master Servicer for expenses incurred
(including any property or other taxes) in connection with such management
and net of unreimbursed Master Servicing Fees, Advances and Servicing
Advances, shall be applied to the payment of principal of and interest on the
related defaulted Mortgage Loans (with interest accruing as though such
Mortgage Loans were still current) and all such income shall be deemed, for
all purposes in this Agreement, to be payments on account of principal and
interest on the related Mortgage Notes and shall be deposited into the
Collection Account. To the extent the net income received during any
calendar month is in excess of the amount attributable to amortizing
principal and accrued interest at the related Mortgage Rate on the related
Mortgage Loan for such calendar month, such excess shall be considered to be
a partial prepayment of principal of the related Mortgage Loan.
The proceeds from any liquidation of a Mortgage Loan, as well as any
income from an REO Property, will be applied in the following order of
priority: first, to reimburse the Master Servicer for any related
unreimbursed Servicing Advances and Master Servicing Fees; second, to
reimburse the Master Servicer for any unreimbursed Advances; third, to
reimburse the Collection Account for any Nonrecoverable Advances (or portions
thereof) that were previously withdrawn by the Master Servicer pursuant to
Section 3(k)(i)(C) that related to such Mortgage Loan; fourth, to accrued and
unpaid interest (to the extent no Advance has been made for such amount or
any such Advance has been reimbursed) on the Mortgage Loan or related REO
Property, at the Adjusted Net Mortgage Rate to the Due Date occurring in the
month in which such amounts are required to be distributed; and fifth, as a
recovery of principal of the Mortgage Loan. Excess Proceeds, if any, from
the liquidation of a Liquidated Mortgage Loan will be retained by the Master
Servicer as additional servicing compensation pursuant to Section 5.
The Master Servicer, in its sole discretion, shall have the right to
purchase for its own account from the Issuer any Mortgage Loan which is 91
days or more delinquent at a price equal to the Purchase Price. The Purchase
Price for any Mortgage Loan purchased hereunder shall be deposited in the
Collection Account and the Trustee, upon receipt of a certificate from the
Master Servicer in the form of Exhibit D hereto, shall release or cause to be
released to the purchaser of such Mortgage Loan the related Mortgage File and
shall execute and deliver such instruments of transfer or assignment prepared
by the purchaser of such Mortgage Loan, in each case without recourse, as
shall be necessary to vest in the purchaser of such Mortgage Loan any
Mortgage Loan released pursuant hereto and the purchaser of such Mortgage
Loan shall succeed to all the Trustee's right, title and interest in and to
such Mortgage Loan and all security and documents related thereto. Such
assignment shall be an assignment outright and not for security. The
purchaser of such Mortgage Loan shall thereupon own such Mortgage Loan, and
all security and documents, free of any further obligation to the Trustee or
the Securityholders with respect thereto.
(o) Access to Certain Documentation.
-------------------------------
The Master Servicer shall provide to the OTS and the FDIC and to
comparable regulatory authorities supervising Holders of subordinated Notes
or Certificates and the examiners and supervisory agents of the OTS, the FDIC
and such other authorities, access to the documentation regarding the
Mortgage Loans required by applicable regulations of the OTS and the FDIC.
Such access shall be afforded without charge, but only upon reasonable and
prior written request and during normal business hours at the offices
designated by the Master Servicer. Nothing in this Section shall limit the
obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of the
Master Servicer to provide access as provided in this Section as a result of
such obligation shall not constitute a breach of this Section.
(p) Annual Statement as to Compliance.
---------------------------------
The Master Servicer shall deliver to the Depositor and the Trustees on
or before 120 days after the end of the Master Servicer's fiscal year,
commencing with its 199_ fiscal year, an Officer's Certificate stating, as to
the signer thereof, that (i) a review of the activities of the Master
Servicer during the preceding calendar year and of the performance of the
Master Servicer under this Agreement has been made under such officer's
supervision and (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof. The Trustee shall forward a
copy of each such statement to each Rating Agency.
(q) Annual Independent Public Accountants' Servicing Statement;
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Financial Statements.
--------------------
On or before 120 days after the end of the Master Servicer's fiscal
year, commencing with its 199_ fiscal year, the Master Servicer at its
expense shall cause a nationally or regionally recognized firm of independent
public accountants (who may also render other services to the Master
Servicer, the Seller or any affiliate thereof) which is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Trustees and the Depositor to the effect that-such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
under this Agreement or of mortgage loans under pooling and servicing
agreements substantially similar to this Agreement (such statement to have
attached thereto a schedule setting forth the pooling and servicing
agreements covered thereby) and that, on the basis of such examination,
conducted substantially in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or the Audit Program for Mortgages serviced for
FNMA and FHLMC, such servicing has been conducted in compliance with such
pooling and servicing agreements except for such significant exceptions or
errors in records that, in the opinion of such firm, the Uniform Single
Attestation Program for Mortgage Bankers or the Audit Program for Mortgages
serviced for FNMA and FHLMC requires it to report. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Subservicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Audit Program
for Mortgage Bankers or the Audit Program for Mortgages serviced for FNMA and
FHLMC (rendered within one year of such statement)
of independent public accountants with respect to the related Subservicer.
Copies of such statement shall be provided by the Trustee to any
Securityholder upon request at the Master Servicer's expense, provided such
statement is delivered by the Master Servicer to the Trustee.
(r) Errors and Omissions Insurance; Fidelity Bonds.
----------------------------------------------
The Master Servicer shall for so long as it acts as master servicer
under this Agreement, obtain and maintain in force (a) a policy or policies
of insurance covering errors and omissions in the performance of its
obligations as Master Servicer hereunder and (b) a fidelity bond in respect
of its officers, employees and agents. Each such policy or policies and bond
shall, together, comply with the requirements from time to time of FNMA or
FHLMC for persons performing servicing for mortgage loans purchased by FNMA
or FHLMC. In the event that any such policy or bond ceases to be in effect,
the Master Servicer shall obtain a comparable replacement policy or bond from
an insurer or issuer, meeting the requirements set forth above as of the date
of such replacement.
(s) Master Servicer Monthly Data.
----------------------------
On or before noon California time on the Determination Date, the Master
Servicer shall provide by modem to the Trustee with respect to the Mortgage
Loans, an electronic data file (accompanied by a hardcopy report) in a format
which is mutually agreed upon by the Master Servicer and the Trustee. The
Trustee shall be under no duty to recalculate, verify or recompute the
information provided to it by the Master Servicer hereunder.
4. Advances.
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The Master Servicer shall determine on or before each Master Servicer
Advance Date whether it is required to make an Advance pursuant to the
definition thereof. If the Master Servicer determines it is required to make
an Advance, it shall, on or before the Master Servicer Advance Date, deposit
into the Collection Account an amount equal to the Advance. The Master
Servicer shall be entitled to be reimbursed from the Collection Account for
all Advances of its own funds made pursuant to this Section as provided in
Section 3(k). The obligation to make Advances with respect to any Mortgage
Loan shall continue if such Mortgage Loan has been foreclosed or otherwise
terminated and the related Mortgaged Property has not been liquidated.
5. Servicing Compensation.
----------------------
As compensation for its activities hereunder, the Master Servicer shall
be entitled to retain or withdraw from the Collection Account an amount equal
to the Master Servicing Fee for each Mortgage Loan, provided that the
aggregate Master Servicing Fee with respect to any Distribution Date shall
be reduced (i) by an amount equal to the aggregate of the Prepayment
Interest Shortfalls, if any, with respect to such Distribution Date,
but not below an amount equal to one-half of the aggregate Master Servicing
Fee for such Distribution Date before reduction thereof in respect of
such Prepayment Interest Shortfalls, and (ii) with respect to the first
Distribution Date, an amount equal to any amount to be deposited into
the Payment Account by the Depositor pursuant to Section 2(a)(i) and
not so deposited.
Additional servicing compensation in the form of Excess Proceeds,
Prepayment Interest Excess, prepayment penalties, assumption fees, late
payment charges and all income and gain net of any losses realized from
Permitted Investments shall be retained by the Master Servicer to the extent
not required to be deposited in the Collection Account pursuant to Section
3(h) hereof. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its master servicing activities hereunder
(including payment of any premiums for hazard insurance and any Primary
Insurance Policy and maintenance of the other forms of insurance coverage
required by this Agreement) and shall not be entitled to reimbursement
therefor except as specifically provided in this Agreement.
6. The Master Servicer.
-------------------
(a) Respective Liabilities of the Depositor and the
________________________________________________________
Master Servicer.
_______________
The Master Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by it
herein.
(b) Merger or Consolidation of the Depositor or the Master
------------------------------------------------------
Servicer.
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The Depositor and the Master Servicer will each keep in full effect its
existence, rights and franchises as a corporation under the laws of the
United States or under the laws of one of the states thereof and will each
obtain and preserve its qualification to do business as a foreign corporation
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Agreement, or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
Any Person into which the Depositor or the Master Servicer may be merged
or consolidated, or any Person resulting from any merger or consolidation to
which the Depositor or the Master Servicer shall be a party, or any person
succeeding to the business of the Depositor or the Master Servicer, shall be
the successor of the Depositor or the Master Servicer, as the case
may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that the successor or surviving
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Person to the Master Servicer shall be qualified to sell mortgage loans to,
and to service mortgage loans on behalf of, FNMA or FHLMC.
(c) Limitation on Liability of the Depositor, the Seller, Master
------------------------------------------------------------
Servicer and Others.
-------------------
None of the Depositor, the Seller, the Master Servicer or any of the
directors, officers, employees or agents of the Depositor, the Seller or the
Master Servicer shall be under any liability to the Securityholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment; provided, however,
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that this provision shall not protect the Depositor, the Seller, the Master
Servicer or any such Person against any breach of representations or
warranties made by it herein or protect the Depositor, the Seller, the Master
Servicer or any such Person from any liability which would otherwise be
imposed by reasons of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Depositor, the Seller, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Seller or the
Master Servicer may rely in good faith on any document of any kind prima
-----
facie properly executed and submitted by any Person respecting any matters
-----
arising hereunder. The Depositor, the Seller, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Seller or the
Master Servicer shall be indemnified by the Issuer and held harmless against
any loss, liability or expense incurred in connection with any audit,
controversy or judicial proceeding relating to a governmental taxing
authority or any legal action relating to this Agreement, the Notes or the
Certificates, other than any loss, liability or expense related to any
specific Mortgage Loan or Mortgage Loans (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) and
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason
of reckless disregard of obligations and duties hereunder. None of the
Depositor, the Seller or the Master Servicer shall be under any obligation to
appear in, prosecute or defend any legal action that is not incidental to its
respective duties hereunder and which in its opinion may involve it in any
expense or liability; provided, however, that any of the Depositor, the
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Seller or the Master Servicer may in its discretion undertake any such action
that it may deem necessary or desirable in respect of this Agreement and the
rights and duties of the parties hereto and interests of the Trustees and the
Securityholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Issuer, and the Depositor, the Seller and
the Master Servicer shall be entitled to be reimbursed therefor
out of the Collection Account.
(d) Limitation on Resignation of the Master Servicer.
------------------------------------------------
The Master Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) upon appointment of a successor servicer and
receipt by the Trustee of a letter from each Rating Agency that such a
resignation and appointment will not result in a downgrading of the rating of
any of the Certificates, or (b) upon determination that its duties hereunder
are no longer permissible under applicable law. Any such determination under
clause (b) permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a successor
master servicer shall have assumed the Master Servicer's responsibilities,
duties, liabilities and obligations hereunder.
7. Default.
-------
(a) Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the following
events:
(i) any failure by the Master Servicer to deposit in the
Collection Account or remit to the Trustee any payment (other than
a payment required to be made under Section 4 hereof) required to
be made with respect to any Class of Certificates under the terms
of this Agreement, which failure shall continue unremedied for five
days after the date upon which written notice of such failure shall
have been given to the Master Servicer by the Trustee or the
Depositor or to the Master Servicer, the Depositor and the Trustee
by the Holders of Notes or Certificates of such Class evidencing
not less than 25% of the total distributions allocated to such
Class; or
(ii) any failure by the Master Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer contained in this
Agreement, which failure shall continue unremedied for a period of
thirty days after the date on which written notice of such failure
shall have been given to the Master Servicer by the Trustee or the
Depositor, or to the Master Servicer, the Depositor and the Trustee
by the Holders of Notes or Certificates of any Class evidencing not
less than 25% of the total distributions allocated to such Class; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment
of a receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceeding,
or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 consecutive days; or
(iv) the Master Servicer shall consent to the appointment of
a receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or all or substantially all of the
property of the Master Servicer; or
(v) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of, or commence a voluntary case under,
any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
((vi) so long as the Master Servicer is the Seller, any
failure by the Seller to observe or perform in any material respect
any other of the covenants or agreements on the part of the Seller
contained in this Agreement, which failure shall continue
unremedied for a period of 60 days after the date on which written
notice of such failure shall have been given to the Seller by the
Trustee or the Depositor, or to the Seller and the Trustee by the
Holders of Notes or Certificates of any Class evidencing not less
than 25% of the total distributions allocated to such Class; or)
(vii) any failure of the Master Servicer to make any Advance
in the manner and at the time required to be made pursuant to
Section 4 which continues unremedied for a period of one Business
Day after the date of such failure.
If an Event of Default described in clauses (i) to (vi) of this Section
shall occur, then, and in each and every such case, so long as such Event of
Default shall not have been remedied, the Trustee may, or at the direction of
the Holders of Notes or Certificates of any Class evidencing not less than
25% of the total distributions allocated to such Class, the Trustee shall
by notice in writing to the Master Servicer (with a copy to
each Rating Agency), terminate all of the rights and obligations of
the Master Servicer under this Agreement and in and to the Mortgage
Loans and the proceeds thereof, other than its rights as a Securityholder.
If an Event of Default described in clause (vii) hereof shall occur,
the Trustee shall, by notice in writing to the Master
Servicer and the Depositor, terminate all of the rights and obligations of
the Master Servicer under this Agreement and in and to the Mortgage Loans and
the proceeds thereof, other than its rights as a Securityholder. On and
after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer hereunder, whether with respect to
the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee.
(The Trustee shall thereupon make any Advance described in clause (vii)
hereof subject to Section 3(g) hereof.) The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and endorsement or assignment of the Mortgage Loans and related
documents, or otherwise. Unless expressly provided in such written notice,
no such termination shall affect any obligation of the Master Servicer to pay
amounts owed pursuant to Article VIII. The Master Servicer agrees to
cooperate with the Trustee in effecting the termination of the Master
Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer to the Trustee of all cash amounts which shall at
the time be credited to the Collection Account, or thereafter be received
with respect to the Mortgage Loans.
Notwithstanding any termination of the activities of the Master Servicer
hereunder, the Master Servicer shall be entitled to receive, out of any late
collection of a Scheduled Payment on a Mortgage Loan which was due prior to
the notice terminating such Master Servicer's rights and obligations as
Master Servicer hereunder and received after such notice, that portion
thereof to which such Master Servicer would have been entitled pursuant to
Sections 3(k)(i)(A) through (H),and any other amounts payable to such Master
Servicer hereunder the entitlement to which arose prior to the termination of
its activities hereunder.
(b) Trustee to Act; Appointment of Successor.
----------------------------------------
On and after the time the Master Servicer receives a notice of
termination pursuant to Section 7(a) hereof, the Trustee shall, subject to
and to the extent provided in Section 3(g), be the successor to the Master
Servicer in its capacity as master servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Master Servicer by the terms and provisions hereof and applicable law
including the obligation to make Advances pursuant to Section 4. As
compensation therefor, the Trustee shall be entitled to all funds relating to
the Mortgage Loans that the Master Servicer would have been entitled to
charge to the Collection Account or Payment Account if the Master Servicer
had continued to act hereunder. Notwithstanding the foregoing, if the
Trustee has become the successor to the Master Servicer in accordance with
Section 7(a) hereof, the Trustee may, if it shall be unwilling to so act, or
shall, if it is prohibited by applicable law from making Advances pursuant to
Section 4 hereof or if it is otherwise unable to so act, appoint, or petition
a court of competent jurisdiction to appoint, any established mortgage loan
servicing institution the appointment of which does not adversely affect the
then current rating of the Securities by each Rating Agency as the successor
to the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder.
Any successor to the Master Servicer shall be an institution which is a FNMA
and FHLMC approved seller/servicer in good standing, which has a net worth of
at least $10,000,000, and which is willing to service the Mortgage Loans and
executes and delivers to the Depositor and the Trustees an agreement
accepting such delegation and assignment, which contains an assumption by
such Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Master Servicer (other than liabilities of the Master
Servicer under Section 6(c) hereof incurred prior to termination of the
Master Servicer under Section 7(a)), with like effect as if originally named
as a party to this Agreement; and provided further that each Rating Agency
acknowledges that its rating of the Securities in effect immediately prior to
such assignment and delegation will not be qualified or reduced as a result
of such assignment and delegation. Pending appointment of a successor to the
Master Servicer hereunder, the Trustee, unless the Trustee is prohibited by
law from so acting, shall, subject to Section 3(g) hereof, act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor
shall agree; provided, however, that no such compensation shall be in
-------- -------
excess of the Master Servicing Fee permitted the Master Servicer hereunder.
The Trustee and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession.
Neither the Trustee nor any other successor master servicer shall be deemed
to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof or any
failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of
the Master Servicer to deliver or provide, or any delay in
delivering or providing, any cash, information, documents or records to it.
Any successor to the Master Servicer as master servicer shall give
notice to the Mortgagors of such change of servicer and shall, during the
term of its service as master servicer maintain in force the policy or
policies that the Master Servicer is required to maintain pursuant to 3(r).
(c) Notification to Securityholders.
-------------------------------
(i) Upon any termination of or appointment of a successor to the
Master Servicer, the Trustee shall give prompt written notice thereof to
Securityholders and to each Rating Agency.
(ii) Within 60 days after the occurrence of any Event of Default,
the Trustee shall transmit by mail to all Securityholders notice of each such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived.
8. Miscellaneous.
-------------
(a) Term of Master Servicing Agreement.
----------------------------------
The obligations to be performed by the Master Servicer under this
Agreement shall commence on and as of the date on which the Issuer issues the
Securities and shall terminate as to each Mortgage Loan upon (i) the payment
in full of all principal and interest due under such Mortgage Loan or other
liquidation of such Mortgage Loan as contemplated by this Agreement, (ii) the
termination of the Master Servicer's rights and powers under this Agreement
by the Trustee as provided in Section 7(a) of this Agreement, or (iii) the
release by the Trustee of its security interest in any Mortgage Loan.
(b) Assignment.
----------
Notwithstanding anything to the contrary contained herein, except as
provided in Section 6(b), this Agreement may not be assigned by the Master
Servicer without the prior written consent of the Trustee and Depositor.
(c) Notices.
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(i) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which
it has actual knowledge:
1. Any material change or amendment to this Agreement;
2. The occurrence of any Event of Default that has not been cured;
3. The resignation or termination of the Master Servicer or the
Trustee and the appointment of any successor;
4. The repurchase or substitution of Mortgage Loans pursuant to
Section 2(d); and
5. The final payment to Securityholders.
In addition, the Trustee shall promptly furnish to each Rating Agency
copies of the following:
1. Each report to Securityholders described in the Indenture;
2. Each annual statement as to compliance described in Section
3(p);
3. Each annual independent public accountants' servicing report
described in Section 3(q); and
4. Any notice of a purchase of a Mortgage Loan pursuant to Section
2(c)(ii), 2(d) or 3(n).
(ii) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered to (a) in
the case of the Depositor, (IndyMac Depositor), 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: _______________, (b) in the case of
the Master Servicer, _____________________________________________,
Attention: _________________ or such other address as may be hereafter
furnished to the Depositor and the Trustees by the Master Servicer in
writing, (c) in the case of the Trustees,
_______________________________________________________, Attention:
__________________________________________________, or such other address as
the Trustee may hereafter furnish to the Depositor or Master Servicer and (d)
in the case of the Rating Agencies, the address specified therefor in the
definition corresponding to the name of such Rating Agency. Notices to
Securityholders shall be deemed given when mailed, first class postage
prepaid, to their respective addresses appearing in the Certificate Register.
(d) Inspection and Audit Rights.
---------------------------
The Master Servicer agrees that, on reasonable prior notice, it will
permit and will cause each Subservicer to permit any representative of the
Depositor or the Trustee during the Master Servicer's normal business hours,
to examine all the books of account, records, reports and other papers of the
Master Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent
certified public accountants selected by the Depositor or the
Trustee and to discuss its affairs, finances and accounts relating to
the Mortgage Loans with its officers, employees and independent public
accountants (and by this provision the Master Servicer hereby authorizes
said accountants to discuss with such representative such affairs, finances
and accounts), all at such reasonable times and as often as may be reasonably
requested. Any out-of-pocket expense incident to the exercise by the
Depositor or the Trustee of any right under this Section 8(d)
shall be borne by the party requesting such inspection; all other such
expenses shall be borne by the Master Servicer or the related Subservicer.
(e) Governing Law.
-------------
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HERETO AND THE SECURITY HOLDERS SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
(f) Amendment.
---------
This Agreement may be amended from time to time by the Issuer(, the
Depositor,) the Master Servicer and the Trustee without the consent of any of
the Securityholders to (i) cure any ambiguity or mistake, (ii) correct any
provision herein or to supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) add to the duties of the
Issuer(, the Depositor) or the Master Servicer, (iv) add any other provisions
with respect to matters or questions arising hereunder or (v) modify, alter,
amend, add to or rescind any of the terms or provisions contained in this
Agreement; provided that any action pursuant to clauses (iv) or (v)
--------
above shall not, as evidenced by an Opinion of Counsel (which Opinion of
Counsel shall not be an expense of the Trustee or the Issuer), adversely
affect in any material respect the interests of any Securityholder; provided
--------
further that any such action shall not be deemed to adversely affect in any
-------
material respect the interests of the Securityholders (and no such Opinion of
Counsel shall be required) if the Person requesting the amendment obtains a
letter from each Rating Agency stating that the amendment would not result in
the downgrading or withdrawal of the respective ratings then assigned to the
Securities; it being understood and agreed that any such letter in and of
itself will not represent a determination as to the materiality of any such
amendment and will represent a determination only as to the credit issues
affecting any such rating. The Trustee, the Issuer, the Depositor and the
Master Servicer also may at any time and from time to time amend this
Agreement without the consent of the Securityholders to modify,
eliminate or add to any of its provisions to such extent as shall
be necessary or helpful to (i) maintain the qualification of
the Issuer as a REMIC under the Code, (ii) avoid or minimize the risk of the
imposition of any tax on the REMIC pursuant to the Code that would be a claim
at any time prior to the final redemption of the Securities or (iii) comply
with any other requirements of the Code; provided that the Trustee has been
--------
provided an Opinion of Counsel, which opinion shall be an expense of the
party requesting such opinion but in any case shall not be an expense of the
Trustee or the Issuer, to the effect that such action is necessary or helpful
to (i) maintain such qualification, (ii) to avoid or minimize the risk of the
imposition of such a tax or (iii) comply with any such requirements of the
Code, as the case may be.
This Agreement may also be amended from time to time by the Depositor,
the Master Servicer and the Trustee with the consent of the Holders of a
Majority in Interest of each Class of Notes or Certificates affected thereby
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Notes or Certificates; provided that no
--------
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, payments required to be distributed on any Note or Certificate
without the consent of the Holder of such Note or Certificate, (ii) adversely
affect in any material respect the interests of the Holders of any Class of
Notes or Certificates in a manner other than as described in (i), without the
consent of the Holders of Notes or Certificates of such Class evidencing, as
to such Class, Percentage Interests aggregating 66% or (iii) reduce the
aforesaid percentages of Notes or Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of all such Notes or Certificates then outstanding.
(Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall have
first received an Opinion of Counsel, which opinion shall not be an expense
of the Trustee or the Issuer, to the effect that such amendment will not
cause the imposition of any tax on the REMIC or the Securityholders or cause
the Issuer to fail to qualify as a REMIC at any time that any Certificates
are outstanding.)
Promptly after the execution of any amendment to this Agreement
requiring the consent of Securityholders, the Trustee shall furnish written
notification of the substance or a copy of such amendment to each
Securityholder and each Rating Agency.
It shall not be necessary for the consent of Securityholders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Securityholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
Nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel (which Opinion shall not be
an expense of the Trustee or the Issuer, satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and that
all requirements for amending this Agreement have been complied with; and
(ii) either (A) the amendment does not adversely affect in any material
respect the interests of any Securityholder or (B) the conclusion set forth
in the immediately preceding clause (A) is not required to be reached
pursuant to this Section 8(f).
(g) Severability of Provisions.
--------------------------
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
(h) No Joint Venture.
----------------
The Master Servicer and the Issuer are not partners or joint venturers
with each other and nothing herein shall be construed to make them such
partners or joint venturers or impose any liability as such of either of
them.
(i) Recordation of Agreement; Counterparts.
--------------------------------------
This Agreement is subject to recordation in all appropriate public
offices for real property records in all the counties or other comparable
jurisdictions in which any or all of the properties subject to the Mortgages
are situated, and in any other appropriate public recording office or
elsewhere, such recordation to be effected by the Master Servicer at its
expense, but only upon direction by the Trustee accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially
affects the interests of the Securityholders.
For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and such counterparts shall constitute but
one and the same instrument.
(j) Limitation of Liability of (owner trustee).
------------------------------------------
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by (owner trustee), not individually
or personally but solely as owner trustee of (________________) Home Equity
Loan Trust 199_ under the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by
(owner trustee) but is made and intended for the purpose for binding only the
Issuer, (c) nothing herein contained shall be construed as creating any
liability on (owner trustee), other than any liability arising out of its
gross negligence, bad faith or willful misconduct, and (d) under no
circumstances shall (owner trustee) be personally liable for the payment of
any indebtedness or expenses of the Issuer or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Agreement or the other Operative
Documents.
(k) Nonpetition Covenants.
---------------------
Notwithstanding any prior termination of this Agreement, the Master
Servicer shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Issuer or the Depositor,
acquiesce, petition or otherwise invoke or cause the Issuer or the Depositor
(or any assignee) to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Issuer or the
Depositor under any federal or state bankruptcy, insolvency or similar law,
or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or the Depositor or any
substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Issuer or the Depositor.
IN WITNESS WHEREOF, each party has caused this Master Servicing
Agreement to be executed by its duly authorized officer or officers as of the
day and year first above written.
(________________) Home Equity Loan Trust 199_,
as Issuer
By: (owner trustee)
not in its
individual capacity
but solely as
Owner Trustee
By:
--------------------------------
Its:
-------------------------------
(INDYMAC, INC.)
as Seller and Master Servicer
By:
--------------------------------
Its:
-------------------------------
( )
as Trustee
By:
--------------------------------
Its:
-------------------------------
SCHEDULE I
Mortgage Loan Schedule
SCHEDULE II
(________________) Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Representations and Warranties of the Master Servicer
-----------------------------------------------------
____________________________ ("Seller-Master Servicer") hereby makes the
representations and warranties set forth in this Schedule II to the Issuer,
the Depositor and the Trustees, as of the Closing Date, or if so specified
herein, as of the Cut-off Date. Capitalized terms used but not otherwise
defined in this Schedule II shall have the meanings ascribed thereto in the
Indenture (the "Indenture") relating to the above-referenced Series, among
Seller-Master Servicer, as seller and master servicer, (IndyMac Depositor),
as depositor, and _____________________, as trustee.
(i) The Master Servicer is a (Delaware) corporation, validly
existing and in good standing under the laws of the State of (Delaware),
and has the corporate power to own its assets and to transact the
business in which it is currently engaged. The Master Servicer is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the business
transacted by it or any properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a
material adverse effect on the business, properties, assets, or condi-
tion (financial or other) of the Master Servicer;
(ii) The Master Servicer has the power and authority to make,
execute, deliver and perform this Agreement and all of the transactions
contemplated under the Agreement, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will constitute
the legal, valid and binding obligation of the Master Servicer enforce-
able in accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies;
(iii) The Master Servicer is not required to obtain the consent of
any other party or any consent, license, approval or authorization from,
or registration or declaration with, any governmental authority, bureau
or agency in connection with the execution, delivery, performance,
validity or enforceability of this Agreement, except for such consent,
license, approval or authorization, or registration or declaration, as
shall have been obtained or filed, as the case may be, prior to the
Closing Date;
(iv) The execution, delivery and performance of this Agreement by
the Master Servicer will not violate any provision of any existing law
or regulation or any order or decree of any court applicable to the
Master Servicer or any provision of the Certificate of Incorporation or
Bylaws of the Master Servicer, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Master
Servicer is a party or by which the Master Servicer may be bound; and
(v) No litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to the
knowledge of the Master Servicer threatened, against the Master Servicer
or any of its properties or with respect to this Agreement or the
Certificates which in the opinion of the Master Servicer has a reasonable
likelihood of resulting in a material adverse effect on the transactions
contemplated by this Agreement.
SCHEDULE III
(________________) Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Representations and Warranties as to the Mortgage Loans
-------------------------------------------------------
____________________________ ("Seller") hereby makes the
representations and warranties set forth in this Schedule III to the
Depositor and the Trustee, as of the Closing Date, or if so specified herein,
as of the Cut-off Date. Capitalized terms used but not otherwise defined in
this Schedule III shall have the meanings ascribed thereto in the Indenture
(the "Indenture") relating to the above-referenced Series, among Seller, as
seller and master servicer, (IndyMac Depositor), as depositor, and
________________________, as trustee.
(i) As of the Closing Date, this Agreement constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement
of creditors' rights generally and by the availability of equitable
remedies;
(ii) As of the Closing Date with respect to the Mortgage Loans and
as of the applicable Transfer Date with respect to any Eligible
Substitute Mortgage Loan, either (A) the Purchase Agreement constitutes
a valid transfer and assignment to the Depositor of all right, title and
interest of the Seller in and to the Cut-off Date Asset Balances with
respect to the applicable Mortgage Loans, all monies due or to become
due with respect thereto (excluding payments in respect of accrued
interest (due) prior to the Cut-off Date (or due in the month of
_________), and all proceeds of such Cut-off Date Asset Balances with
respect to the Mortgage Loans and such funds as are from time to time
deposited in the Collection Account (excluding any investment earnings
thereon) and all other property specified in the definition of "Asset"
as being part of the corpus of the Trust conveyed to the Trust by the
Seller, and upon payment for the Additional Balances, will constitute a
valid transfer and assignment to the Trustee of all right, title and
interest of the Seller in and to the Additional Balances, all monies due
or to become due with respect thereto, and all proceeds of such
Additional Balances and all other property specified in the definition
of "Asset" relating to the Additional Balances or (B) the Purchase
Agreement or this Agreement, as appropriate, constitutes a grant of a
security interest (as defined in the UCC as in effect in California) in
such property to the Trustee on behalf of the Trust. If this Agreement
constitutes the grant of a security interest to the Trust in such
property, and if the Trustee obtains and maintains possession of the
Mortgage File for each Mortgage Loan, the Trust shall have a first
priority perfected security interest in such property, subject to the
effect of Section 9-306 of the UCC with respect to collections on the
Mortgage Loans that are deposited in the Collection Account in
accordance with the next to last paragraph of Section _______; provided,
--------
however, that nothing in this clause (ii) shall be construed to obligate the
-------
Master Servicer to deliver any Mortgage Files other than as set forth in
Section 2(a) hereof;
((iii) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan and as of the date any Additional Balance is created, the
information set forth in the Mortgage Loan Schedule for such Mortgage
Loans is true and correct in all material respects;)
(iv) The applicable Cut-off Date Asset Balance has not been
assigned or pledged, and the Seller is the sole owner and holder of such
Cut-off Date Asset Balance free and clear of any and all liens, claims,
encumbrances, participation interests, equities, pledges, charges or
security interests of any nature, and has full right and authority,
under all governmental and regulatory bodies having jurisdiction over
the ownership of the applicable Mortgage Loan, to sell, assign or
transfer the same pursuant to the Purchase Agreement;
(v) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, the related Mortgage Note and the Mortgage with respect
to each Mortgage Loan have not been assigned or pledged, and the Seller
(immediately prior to the sale of the Mortgage Loans to the Depositor,
the Sponsor was) (is) the sole owner and holder of the Mortgage Loan
free and clear of any and all liens, claims, encumbrances, participation
interests, equities, pledges, charges or security interests of any
nature, and has full right and authority, under all governmental and
regulatory bodies having jurisdiction over the ownership of the appli-
cable Mortgage Loans, to sell and assign the same pursuant to the
Purchase Agreement;
(vi) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, the related Mortgage is a valid and subsisting first or
second lien, as set forth on the Mortgage Loan Schedule with respect to
each related Mortgage Loan, on the property therein described, and as of
the Cut-off Date the related Mortgaged Property is free and clear of all
encumbrances and liens having priority over the first or second lien, as
applicable, of such Mortgage except for liens for (i) real estate taxes
and special assessments not yet delinquent and liens or interests
arising under or as a result of any Federal, state or local law,
regulation or ordinance relating to hazardous wastes or hazardous
substances and, if the related Mortgaged Property is a unit in a
condominium project or planned unit development, any lien for common
charges permitted by statute or homeowner association fees; (ii) any
first mortgage loan secured by such Mortgaged Property and specified on
the Mortgage Loan Schedule; (iii) 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 in the area wherein the related Mortgaged Property
is located or specifically reflected in the appraisal made in connection
with the origination of the related Mortgage Loan; and (iv) 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 such Mortgage;
(vii) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, there is no valid offset, defense or counterclaim of any
obligor under any Credit Line Agreement or Mortgage;
(viii) To the best knowledge of the Seller, as of the Closing Date
with respect to the Mortgage Loans and the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, there is no delinquent
recording or other tax or fee or assessment lien against any related
Mortgaged Property;
(ix) As of the Closing Date with respect to the Mortgage Loans and
the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, there is no proceeding pending or, to the best knowledge
of the Seller, threatened for the total or partial condemnation of the
related Mortgaged Property, and no such property has been materially
damaged by water, fire, earthquake, windstorm, flood, tornado or similar
casualty (excluding casualty from the presence of hazardous wastes or
hazardous substances, as to which the Seller makes no representations)
so as to affect adversely the value of the related Mortgaged Property
as security for such Mortgage Loan;
(x) To the best knowledge of the Seller, as of the Closing Date
with respect to the Mortgage Loans and the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, there are no
mechanics' or similar liens or claims which have been filed for work,
labor or material affecting the related Mortgaged Property which are, or
may be, liens prior or equal to the lien of the related Mortgage, except
liens which are fully insured against by the title insurance policy
referred to in clause (xiv);
(xi) No Minimum Monthly Payment is more than 89 days delinquent
(measured on a contractual basis); and with respect to the Mortgage
Loans no more than _____% (by Cut-off Date Pool Balance) were 30-59 days
delinquent (measured on a contractual basis) and no more than _____% (by
Cut-off Date Pool Balance) were 60-89 days delinquent (measured on a
contractual basis);
(xii) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, for each Mortgage Loan, the related Mortgage File
contains each of the documents and instruments specified to be included
therein;
(xiii) The related Mortgage Note and the related Mortgage at
origination complied in all material respects with applicable state and
federal laws, including, without limitation, usury, truth-in-lending,
real estate settlement procedures, consumer credit protection, equal
credit opportunity or disclosure laws applicable to the Mortgage Loan;
(xiv) Either a lender's title insurance policy or binder was
issued on the date of origination of the Mortgage Loan and each such
policy is valid and remains in full force and effect, or a title search
or guaranty of title customary in the relevant jurisdiction was obtained
with respect to a Mortgage Loan as to which no title insurance policy or
binder was issued;
((xv) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, none of the Mortgaged Properties is a mobile home or a
manufactured housing unit that is not considered or classified as part
of the real estate under the laws of the jurisdiction in which it is
located;)
((xvi) As of the Cut-off Date for the Mortgage Loans no more than
_____% of such Mortgage Loans, by aggregate principal balance, are
secured by Mortgaged Properties located in one United States postal
five-digit zip code;)
((xvii) The Combined Loan-to-Value Ratio for each Mortgage Loan
was not in excess of (___)%;)
(xviii) No selection procedure reasonably believed by the Seller
to be adverse to the interests of the Securityholders (or the Credit
Enhancer) was utilized in selecting the Mortgage Loans;
(xix) The Seller has not transferred the Mortgage Loans to the
Trust with any intent to hinder, delay or defraud any of its creditors;
(xx) The Minimum Monthly Payment with respect to any Mortgage Loan
is not less than the interest accrued at the applicable Loan Rate on the
average daily Asset Balance during the interest period relating to the
date on which such Minimum Monthly Payment is due;
(xxi) Within 90 days of the Closing Date with respect to the
Mortgage Loans and, to the extent not already included in such filing
with respect to the Mortgage Loans, the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, the Seller will file
UCC-1 financing statements with respect to the Mortgage Loans;
(xxii) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, each Credit Line Agreement and each Mortgage Loan is an
enforceable obligation of the related Mortgagor, except as the
enforceability thereof may be limited by the bankruptcy, insolvency or
similar laws affecting creditors' rights generally;
(xxiii) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, the Seller has not received a notice of default of any
senior mortgage loan related to a Mortgaged Property that has not been
cured by a party other than the Master Servicer;
(xxiv) The definition of Prime Rate in each Credit Line Agreement
relating to a Mortgage Loan does not differ materially from the
definition in the form of Credit Line Agreement in _________________;
((xxv) The weighted average remaining term to maturity of the
Mortgage Loans on a contractual basis as of the Cut-
off Date for the Mortgage Loans is approximately ___ months. On each
date that the Loan Rates have been adjusted, interest rate adjustments
on the Mortgage Loans were made in compliance with the related Mortgage
and Mortgage Note and applicable law. Over the term of each Mortgage
Loan, the Loan Rate may not exceed the related Loan Rate Cap, if any.
The Loan Rate Caps range between ____% and ____%. The Margins range
between ____% and ____% and the weighted average Margin is approximately
____% as of the Cut-off Date for the Mortgage Loans. The Loan Rates on
such Mortgage Loans range between ____% and _____% and the weighted
average Loan Rate is approximately _____%.)
(xxvi) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, each Mortgaged Property consists of a single parcel of
real property with a one-to-four unit single family residence erected
thereon, or an individual condominium unit, planned unit development
unit or townhouse;
(xxvii) No more than _____% (by Cut-off Date Pool Balance) of the
Mortgage Loans are secured by real property improved by individual
condominium units, planned development units, townhouses or two-to-four
family residences erected thereon, and at least _____% (by Cut-off Date
Pool Balance) of the Mortgage Loans are secured by real property with a
detached one-family residence erected thereon;
(xxviii) The Credit Limits on the Mortgage Loans range between
$________ and $__________ with an average of $_________. As of the Cut-
off Date for the Mortgage Loans, no Mortgage Loan had a principal
balance in excess of approximately $__________ and the average principal
balance of the Mortgage Loans is equal to approximately $_________; and
(xxix) Approximately ____% and _____% of the Mortgage Loans, by
aggregate principal balance as of the Cut-off Date for the Mortgage
Loans, are first and second liens, respectively.
SCHEDULE IV
(________________) Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Representations and Warranties of the Issuer.
--------------------------------------------
(________________) Home Equity Loan Trust 199_ (the "Issuer") hereby
makes the representations and warranties set forth in this Schedule IV to the
Master Servicer and the Trustee, as of the Closing Date. Capitalized terms
used but not otherwise defined in this Schedule IV shall have the meanings
ascribed thereto in the Master Servicing Agreement (the "Master Servicing
Agreement") relating to the above-referenced Series, among (IndyMac, Inc.),
as Master Servicer, (________________) Home Equity Loan Trust 199_, as
Issuer, and ( ), as Trustee.
(1) The Issuer is a statutory business trust duly organized,
validly existing and in good standing under the laws of the State of
(Delaware), and possesses all requisite authority, power, licenses,
permits and franchises to conduct any and all business contemplated by
the Master Servicing Agreement and to comply with its obligations under
the terms of this Agreement, the performance of which have been duly
authorized by all necessary action.
(2) Neither the execution and delivery of the Master Servicing
Agreement by the Issuer, nor the performance and compliance with the
terms thereof by the Issuer will (A) result in a material breach of any
term or provision of the instruments creating the Issuer or governing
its operations, or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument to which
the Issuer is a party or by which it may be bound, or (C) constitute a
material violation of any statute, order or regulation applicable to the
Issuer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Issuer; and the Issuer is
not in breach or violation of any material indenture or other material
agreement or instrument, or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it which breach or violation
may materially impair the Issuer's ability to perform or meet any of its
obligations under the Master Servicing Agreement.
(3) This Agreement, and all documents and instruments contemplated
hereby, which are executed and delivered by the Issuer, will, assuming
due authorization, execution by and delivery to the other parties hereto
and thereto, constitute valid, legal and binding obligations of the
Issuer, enforceable in accordance with their respective terms, except
that (a) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (b) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(4) No litigation is pending or, to the best of the Issuer's
knowledge, threatened against the Issuer that would materially and
adversely affect the execution, delivery or enforceability of the Master
Servicing Agreement or the ability of the Issuer to perform its
obligations thereunder.
(5) Immediately prior to the transfer and assignment of the
Mortgage Loans to the Trustee, the Issuer had good title to, and was the
sole owner of, each Mortgage Loan free and clear of any liens, charges
or encumbrances or any ownership or participation interests in favor of
any other Person.
EXHIBIT A
FORM OF INITIAL CERTIFICATION OF TRUSTEE
(date)
(Master Servicer)
(Issuer)
_____________________
_____________________
Re: Master Servicing Agreement among (________________) Home
Equity Loan Trust 199_, as Issuer, (IndyMac, Inc.), as
Master Servicer, and ( ), as Trustee, Asset Backed Notes
and Asset Backed Certificates, Series 199_
--------------------------------------
------
Gentlemen:
In accordance with Section 2(b) of the above-captioned Master Servicing
Agreement (the "Master Servicing Agreement"), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan listed in the attached schedule), it
has received:
(i) the original Mortgage Note, endorsed as provided in the following
form: "Pay to the order of ________, without recourse"; and
(ii) a duly executed assignment of the Mortgage (which may be included
in a blanket assignment or assignments).
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face and related to such
Mortgage Loan.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the Master Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan or (iii)
the correctness of any information set forth in the Mortgage Loan Schedule,
other than the information specified in items (i) through (iv) and (vi)
thereof.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing Agreement.
( )
as Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EXHIBIT B
FORM OF FINAL CERTIFICATION OF TRUSTEE
(date)
(Master Servicer)
(Issuer)
_____________________
_____________________
Re: Master Servicing Agreement among (________________) Home
Equity Loan Trust 199_, as
Issuer, (IndyMac, Inc.), as Master Servicer, and ( ), as
Trustee, Asset Backed
Notes and Asset Backed Certificates, Series 199_
------------------------------------------------
Gentlemen:
In accordance with Section 2(b) of the above-captioned Master Servicing
Agreement (the "Master Servicing Agreement"), the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
Document Exception Report) it has received:
(i) The original Mortgage Note, endorsed in the form provided in
Section 2(a) of the Master Servicing Agreement, with all intervening
endorsements showing a complete chain of endorsement from the originator to
the Issuer.
(ii) The original recorded Mortgage.
(iii) A duly executed assignment of the Mortgage in the form provided in
Section 2(a) of the Master Servicing Agreement, or, if the Master Servicer
has certified or the Trustee otherwise knows that the related Mortgage has
not been returned from the applicable recording office, a copy of the
assignment of the Mortgage (excluding information to be provided by the
recording office).
(iv) The original or duplicate original recorded assignment or
assignments of the Mortgage showing a complete chain of assignment from the
originator to the Issuer.
(v) The original or duplicate original lender's title policy and all
riders thereto or, any one of an original title binder, an original
preliminary title report or an original title commitment, or a copy thereof
certified by the title company.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face and related to
such Mortgage Loan, and (b) the information set forth in items (i), (ii),
(iii), (iv), (vi) and (xi) of the definition of the "Mortgage Loan Schedule"
in Section 1 of the Master Servicing Agreement accurately reflects
information set forth in the Trustee Mortgage File.
The Trustee has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in
the Master Servicing Agreement. The Trustee makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan. Notwithstanding anything herein to the contrary, the Trustee
has made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note or (ii) any assignment is in recordable form or sufficient to
effect the assignment of and transfer to the assignee thereof, under the
Mortgage to which the assignment relates.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Master Servicing Agreement.
( ),
as Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EXHIBIT C
REQUEST FOR RELEASE
(for Trustee)
(________________) Home Equity Loan Trust 199_
Asset Backed Notes and Asset Backed Certificates
Series 199_
Loan Information
----------------
Name of Mortgagor:
------------------------------
Servicer
Loan No.:
------------------------------
Trustee
-------
Name:
------------------------------
Address:
------------------------------
------------------------------
Trustee
Mortgage File No.:
------------------------------
The undersigned Master Servicer hereby acknowledges that it has received
from ( ), as Trustee for the Holders of Notes of the above-referenced Series,
the documents referred to below (the "Documents"). All capitalized terms not
otherwise defined in this Request for Release shall have the meanings given
them in the Master Servicing Agreement (the "Master Servicing Agreement")
relating to the above-referenced Series among the Trustee, (IndyMac, Inc.),
as Master Servicer, and (________________) Home Equity Loan Trust 199_, as
Issuer.
( ) Mortgage Note dated , 19 , in the original principal sum
------------ --
of $ , made by . payable to, or endorsed to the
---------- ------------------
order of, the Trustee.
( ) Mortgage recorded on as instrument no.
-----------------
in the County Recorder's Office of the County of ,
State of in book/reel/docket of official
records at page/image . --------------------
----------- ----------------
( ) Deed of Trust recorded on as instrument no.
------------------
in the County Recorder's Office of the County of ,
State of in book/reel/docket of official
_______________
records at page/image . ------------------
------------- ----------------
( ) Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
--
as instrument no. in the County Recorder's Office
-------------- ------------
of the County of , State of in book/reel/docket
---------- ----------------
of official records at page/image .
--
-------------
( ) Other documents, including any amendments, assignments or other
assumptions of the Mortgage Note or Mortgage.
( )
----------------------------------------------
( )
----------------------------------------------
( )
----------------------------------------------
( )
----------------------------------------------
The undersigned Master Servicer hereby acknowledges and agrees as
follows:
(1) The Master Servicer shall hold and retain possession of the
Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Agreement.
(2) The Master Servicer shall not cause or knowingly permit the
Documents to become subject to, or encumbered by,
any claim, liens, security interest, charges, writs of attachment or
other impositions nor shall the Master Servicer assert or seek to assert
any claims or rights of setoff to or against the Documents or any
proceeds thereof.
(3) The Master Servicer shall return each and every Document
previously requested from the Mortgage File to the Trustee when the need
therefor no longer exists, unless the Mortgage Loan relating to the
Documents has been liquidated and the proceeds thereof have been
remitted to the Note Account and except as expressly provided in the
Master Servicing Agreement.
(4) The Documents and any proceeds thereof, including any proceeds
of proceeds, coming into the possession or control of the Master
Servicer shall at all times be earmarked for the account of the Trustee,
and the Master Servicer shall keep the Documents and any proceeds
separate and distinct from all other property in the Master Servicer's
possession, custody or control.
(INDYMAC, INC.)
By
------------------------
Its
------------------------
Date: , 19
----------------- --
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
To: (Trustee) Attn: Mortgage Custody
Services
Re: The Master Servicing Agreement dated ( ) among (IndyMac, Inc.)
("(IndyMac)"), as Master Servicer, (________________) Home Equity Loan Trust
199_, as Issuer, and ( ), as Trustee
Ladies and Gentlemen:
In connection with the administration of the Mortgage Loans held by you as
Trustee for (________________) Home Equity Loan Trust 199_, as Issuer, we
request the release of the Mortgage File for the Mortgage Loan(s) described
below, for the reason indicated.
FT Account#: Pool #:
Mortgagor's Name, Address and Zip Code:
--------------------------------------
Mortgage Loan Number:
--------------------
Reason for Requesting Documents (check one)
-------------------------------
_______1. Mortgage Loan paid in full ((IndyMac) hereby certifies that all
amounts have been received.)
_______2. Mortgage Loan Liquidated ((IndyMac) hereby certifies that all
proceeds of foreclosure, insurance, or other liquidation have been
finally received.)
_______3. Mortgage Loan in Foreclosure.
_______4. Other (explain): ____________________________________
If item 1 or 2 above is checked, and if all or part of the Trustee Mortgage
File was previously released to us, please release to us our previous receipt
on file with you, as well as an additional documents in your possession
relating to the above-specified Mortgage Loan. If item 3 or 4 is checked,
upon return of all of the above documents to you as Trustee, please
acknowledge your receipt by signing in the space indicated below, and
returning this form.
(INDYMAC, INC.) (address)
By:________________________
Name:______________________
Title:____________________
Date:______________________
TRUSTEE CONSENT TO RELEASE AND
ACKNOWLEDGEMENT OF RECEIPT
By:________________________
Name:______________________
Title:____________________
Date:______________________
