Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to: (a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Option); or (b) Whole Loan Transfers to Freddie Mac; or (c) one or more third party purchasers in onx xx xxre Whole Loan Transfers; or (d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie Mac, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably acceptable to the Servicer among the Owner, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx x Xxxle Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-13arx)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner Purchaser agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Closing Date, on one or more dates (each, each a "Reconstitution Date") at the OwnerPurchaser's sole option, the Owner Purchaser may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a "Fannie Mae Transfer"); or
(b) Whole Loan Transfers to Freddie MacMac (the "Freddie Mac Transfer"); or
(cx) one or more third xxxxx party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(d) one or more trusts or other entities to be formed as part of one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the OwnerPurchaser, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx xx xxnnection xxxx x Xxxle Whole Loan Transfer, a Seller's warranties an assignment and servicing assumption agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with With respect to each Reconstitution Whole Loan Transfer and each Securitization Transaction entered into by the OwnerPurchaser, the Servicer agrees (1) to cooperate fully with the Owner Purchaser and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesPurchaser; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitutionthat connection, the Servicer shall: (i) shall provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner Purchaser or any such other participant shall reasonably request, ; (ii) provide to such master servicer or issueradditional reasonable representations, as the case mat bewarranties, and any other participants in such Reconstitutioncovenants, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner Purchaser or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner Purchaser or any such participant in the form of Exhibit G attached hereto. Moreover, mutually agreeable to the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certificationPurchaser. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify the Purchaser, each Affiliate designated by the Purchaser and each Person who controls the Purchaser or such Affiliate and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct on behalf of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and regarding the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."the
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-17xs)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner Purchaser agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Closing Date, on one or more dates (each, each a "“Reconstitution Date"”) at the Owner's Purchaser’s sole option, the Owner Purchaser may effect a sale (each, a "“Reconstitution"”) of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Fxxxxx Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a “Fxxxxx Mxx Transfer”); or
(b) Whole Loan Transfers to Freddie MacFxxxxxx Mac (the “Fxxxxxx Mac Transfer”); or
(c) one or more third party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(d) one or more trusts or other entities to be formed as part of one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the OwnerPurchaser, the Servicer, Fannie Fxxxxx Mae or Freddie Fxxxxxx Mac (as the case may be) and any servicer in xxxxxxtion witx x Xxxle connection with a Whole Loan Transfer, a Seller's warranties an assignment and servicing assumption agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "“Reconstitution Agreements"”). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with With respect to each Reconstitution Whole Loan Transfer and each Securitization Transaction entered into by the OwnerPurchaser, the Servicer agrees (1) to cooperate fully with the Owner Purchaser and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesPurchaser; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitutionthat connection, the Servicer shall: (i) shall provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner Purchaser or any such other participant shall reasonably request, ; (ii) provide to such master servicer or issueradditional reasonable representations, as the case mat bewarranties, and any other participants in such Reconstitutioncovenants, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner Purchaser or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner Purchaser or any such participant mutually agreeable to the Servicer and the Purchaser. The Servicer shall indemnify the Purchaser, each Affiliate designated by the Purchaser and each Person who controls the Purchaser or such Affiliate and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that each of them may sustain in any way related to any information provided by or on behalf of the form of Exhibit G attached heretoServicer regarding the Servicer, the Servicer’s servicing practices or performance, the Mortgage Loans or the Underwriting Guidelines set forth in any offering document prepared in connection with any Reconstitution. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner Purchaser to effect such Reconstitution Agreements. But in no event shall the Servicer be obligated to any greater extent under a Reconstitution Agreement than it is under this Agreement. For purposes of this Section, “Purchaser” shall mean the Person then acting as the Purchaser under this Agreement and any and all Persons who previously were “Purchasers” under this Agreement. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and the Purchase Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicerTransaction, the Servicer agrees that on or before prior to March 15th 1st of each year beginning March 15, 2006year, the Servicer shall deliver to the depositor, the master servicer (if any), Purchaser and the trustee for the securitization trust created in the such Securitization Transaction, and their officers, directors and affiliates, (a) a certification in substantially the form attached annexed hereto as Exhibit I hereto7, executed by the senior officer in charge of servicing at the Servicer Servicer, for use inclusion in connection with any the Annual Report on Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in formed for such certificationSecuritization Transaction. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositorPurchaser, the master servicer (if any)depositor for such Securitization Transaction, and the trustee, trustee for such Securitization Transaction and their respective officers, directors and Affiliates, Affiliates from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, the Servicer’s negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence herein is unavailable or insufficient to hold harmless any the indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party depositor and/or such trustee as a result of the losses, claims, damages or liabilities of such indemnified party depositor and/or such trustee in such proportion as is appropriate to reflect the relative fault of such indemnified partydepositor or such trustee, as the case may be, on the one hand, hand and the Servicer, Servicer on the other, other in connection with a breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, the Servicer’s negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-12)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "“Reconstitution Date"”) at the Owner's ’s sole option, the Owner may effect a sale (each, a "“Reconstitution"”) of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Fxxxxx Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option); or
(b) Whole Loan Transfers to Freddie Fxxxxxx Mac; or
(c) one or more third party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Fxxxxx Mae or Freddie Fxxxxxx Mac, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the Owner, the Servicer, Fannie Fxxxxx Mae or Freddie Fxxxxxx Mac (as the case may be) and any servicer in xxxxxxtion witx x Xxxle connection with a Whole Loan Transfer, a Seller's ’s warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing trust agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "“Reconstitution Agreements"”). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner Owner, the Certificate Insurer and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 20062008, the Servicer shall deliver to the depositor, the master servicer (if any), the Certificate Insurer and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's ’s report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), the certificate insurer and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-9sl)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Specixx Xxxvicing Option); or
(b) Whole Loan Transfers to Freddie Mac; or
(c) one or more third party purchasers in onx purchaserx xx xxre xxe or more Whole Loan Transfers; or
(d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie Mac, any and all pool purchase contracts, andxxx/xx xxrxxxents xxxxxxably agreemexxx xxxsonably acceptable to the Servicer among the Owner, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx xx xxxnection xxxx x Xxxle Whole Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-2ax)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "“Reconstitution Date"”) at the Owner's ’s sole option, the Owner may effect a sale (each, a "“Reconstitution"”) of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae Fxxxxx Mxx under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option); or
(b) Whole Loan Transfers to Freddie Fxxxxxx Mac; or
(c) one or more third party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae Fxxxxx Mxx or Freddie Fxxxxxx Mac, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the Owner, the Servicer, Fannie Fxxxxx Mae or Freddie Fxxxxxx Mac (as the case may be) and any servicer in xxxxxxtion witx x Xxxle connection with a Whole Loan Transfer, a Seller's ’s warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "“Reconstitution Agreements"”). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (ab) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's ’s report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-10sl)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx OptionSxxxxxxnx Xption); or
(b) Whole Loan Transfers to Freddie Mac; or
(c) one or more third party purchasers in onx purchaserx xx xxre xxe or more Whole Loan Transfers; or
(d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie Mac, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably xxxexxxnts xxxxxxxbly acceptable to the Servicer among the Owner, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx cxxxxxxion with x Xxxle Xxxxe Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-9ar)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner Purchaser agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Closing Date, on one or more dates (each, each a "Reconstitution Date") at the OwnerPurchaser's sole option, the Owner Purchaser may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a "Fannie Mae Transfer"); or
x) Freddie Mac (b) Whole Loan Transfers to the "Freddie MacMac Transfer"); or
(cx) one or more third morx xxxxx party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(d) one or more trusts or other entities to be formed as part of one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the OwnerPurchaser, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx x Xxxle servicex xx xonnectiox xxxx a Whole Loan Transfer, a Seller's warranties an assignment and servicing assumption agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with With respect to each Reconstitution Whole Loan Transfer and each Securitization Transaction entered into by the OwnerPurchaser, the Servicer agrees (1) to cooperate fully with the Owner Purchaser and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesPurchaser; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitutionthat connection, the Servicer shall: (i) shall provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner Purchaser or any such other participant shall reasonably request, ; (ii) provide to such master servicer or issueradditional reasonable representations, as the case mat bewarranties, and any other participants in such Reconstitutioncovenants, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner Purchaser or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner Purchaser or any such participant in the form of Exhibit G attached hereto. Moreover, mutually agreeable to the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certificationPurchaser. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify the Purchaser, each Affiliate designated by the Purchaser and each Person who controls the Purchaser or such Affiliate and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct on behalf of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and regarding the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."the
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-2ax)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner Purchaser agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Closing Date, on one or more dates (each, each a "Reconstitution Date") at the OwnerPurchaser's sole option, the Owner Purchaser may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a "Fannie Mae Transfer"); or
(b) Whole Loan Transfers to Freddie MacMac (the "Freddie Mac Transfer"); or
(cx) one or more third mxxx xxxrd party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(d) one or more trusts or other entities to be formed as part of one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the OwnerPurchaser, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx xx xxnxxxtion xxxx x Xxxle Whole Loan Transfer, a Seller's warranties an assignment and servicing assumption agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with With respect to each Reconstitution Whole Loan Transfer and each Securitization Transaction entered into by the OwnerPurchaser, the Servicer agrees (1) to cooperate fully with the Owner Purchaser and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesPurchaser; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitutionthat connection, the Servicer shall: (i) shall provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner Purchaser or any such other participant shall reasonably request, ; (ii) provide to such master servicer or issueradditional reasonable representations, as the case mat bewarranties, and any other participants in such Reconstitutioncovenants, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner Purchaser or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner Purchaser or any such participant in the form of Exhibit G attached hereto. Moreover, mutually agreeable to the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certificationPurchaser. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify the Purchaser, each Affiliate designated by the Purchaser and each Person who controls the Purchaser or such Affiliate and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct on behalf of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and regarding the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."the
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-1xs)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, each a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(ai) Whole Loan Transfers to Fannie Xxxxxx Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a "Xxxxxx Xxx Transfer"); or
(bii) Whole Loan Transfers to Freddie MacXxxxxxx Mac (the "Xxxxxxx Mac Transfer"); or
(ciii) one or more third party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(div) one or more trusts or other entities to be formed as part of one or more Securitization TransactionsTransfers. With respect to each Whole Loan Transfer, Agency Transfer or Securitization Transfer, as the case may be, entered into by the Owner:
(a) The Servicer agrees to execute (i) in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the Owner, the Servicer, Fannie Xxxxxx Mae or Freddie Xxxxxxx Mac (as the case may be) and any servicer servicer, (ii) in xxxxxxtion witx x Xxxle connection with a Whole Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and (iii) in connection with a Securitization TransactionTransfer, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event ; provided that provisions of such Reconstitution Agreements will not contain any substantially greater obligations of, or any substantially lower benefits to, the Servicer than those contained in this Agreement and each of the Servicer and Owner is chosen by given an opportunity to review and reasonably negotiate in good faith the content of such provisions (which shall not be more onerous than those required under this Agreement) including, but not limited to servicing representations and warranties (dated as of the settlement or closing date in connection with such Reconstitution -77- (each, a "Reconstitution Date")) related to the Mortgage Loans for the period of time from the date on which the Servicer began servicing the Mortgage Loans through the Reconstitution Date to the effect that (a) the Servicer has serviced the Mortgage Loans in accordance with this Agreement and has provided accurate "paid through" data with respect to the Mortgage Loans to the Owner, (b) except as reflected in the "paid through" data delivered to the Owner, there is no payment default existing under any Mortgage or any Mortgage Note as of the cut-off date for the Reconstitution, and (c) to the best of the Servicer's knowledge, there is no non-payment default existing under any Mortgage or Mortgage Note, or any event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a non-payment default, breach, violation or event which would permit acceleration as of the closing date for the Reconstitution; and representations and warranties (dated as of the Reconstitution Date); and, provided, further, that each of the Servicer agrees, and the Owner is given an opportunity to service review and reasonably negotiate in good faith the content of any Mortgage Loans such documents not specifically referenced or provided for herein. Servicer shall cooperate in connection with a Reconstitution, with good faith in negotiating any delinquency and cumulative loss termination triggers in the pooling and servicing agreement.
(b) With respect to each Reconstitution Whole Loan Transfer and each Securitization Transfer entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence proceduresprocedures including participating in meetings with rating agencies, bond insurers and such other parties as the Owner shall designate and participating in meetings with prospective purchasers of the Mortgage Loans or interests therein and providing information reasonably requested by such purchasers; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by or other participants in the partiesReconstitution; (3)
(a) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date which shall not be more onerous than those required under this Agreement or (b) make the representations and warranties regarding with respect to the Servicer servicing of the Mortgage Loans set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, or such representations and warranties with respect to the servicing of the Mortgage Loans as may be required by any Rating Agency or prospective purchaser of the related securities or such Mortgage Loans, in connection with such Reconstitution; provided, provided however, that the Servicer may negotiate the terms of any additional such representations and warranties shall not included in be more onerous than those required under this Agreement. In connection with such Reconstitution, the The Servicer shall: (i) shall use its reasonable best efforts to provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, ; (ii) provide subject to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense provisions of the Owner (not to exceed $15,000Section 13.13(b), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached heretoparticipant. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify the Owner, each Affiliate designated by the Owner in connection with a Reconstitution, each Person who controls the Owner or such Affiliate and the Successor Servicer and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach on behalf of the Servicer regarding the Servicer, the Servicer's obligations under this paragraph servicing practices or any material misstatement or omission, negligence, bad faith or willful misconduct of performance provided by the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, offering document prepared in connection with a breach any Reconstitution (the "Servicer Information"). For purposes of the Servicer's obligations previous sentence, "Owner" shall mean the Person then acting as the Owner under this paragraph or Agreement and any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."and all Persons
Appears in 1 contract
Samples: Flow Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-Sl2)
Cooperation of Servicer with a Reconstitution. (a) The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, each a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(ai) Whole Loan Transfers to Fannie Mae Fxxxxx Mxx under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a "Fxxxxx Mxx Transfer"); or
(bii) Whole Loan Transfers to Freddie MacMac (the "Freddie Mac Transfer"); or
(ciii) one or more third party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(div) one or more trusts or other entities to be formed as part of one or more Securitization TransactionsTransfers. With respect to each Whole Loan Transfer, Agency Transfer or Securitization Transfer, as the case may be, entered into by the Owner:
(b) The Servicer agrees to execute (i) in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the Owner, the Servicer, Fannie Mae Fxxxxx Mxx or Freddie Mac (as the case may be) and any servicer servicer, (ii) in xxxxxxtion witx x Xxxle connection with a Whole Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and (iii) in connection with a Securitization TransactionTransfer, a pooling and servicing agreement or sale and servicing other similar agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event ; provided that provisions of such Reconstitution Agreements will not contain any substantially greater obligations of, or any substantially lower benefits to, the Servicer than those contained in this Agreement and each of the Servicer and Owner is chosen by given an opportunity to review and reasonably negotiate in good faith the content of such provisions (which shall not be more onerous than those required under this Agreement) including, but not limited to servicing representations and warranties (dated as of the settlement or closing date in connection with such Reconstitution (each, a "Reconstitution Date")) related to the Mortgage Loans for the period of time from the date on which the Servicer began servicing the Mortgage Loans through the Reconstitution Date to the effect that (a) the Servicer has serviced the Mortgage Loans in accordance with this Agreement and has provided accurate "paid through" data with respect to the Mortgage Loans to the Owner, (b) except as reflected in the "paid through" data delivered to the Owner, there is no payment default existing under any Mortgage or any Mortgage Note as of the cut-off date for the Reconstitution, and (c) to the best of the Servicer's knowledge, there is no non-payment default existing under any Mortgage or Mortgage Note, or any event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a non-payment default, breach, violation or event which would permit acceleration as of the closing date for the Reconstitution; and representations and warranties (dated as of the Reconstitution Date); and, provided, further, that each of the Servicer agrees, and the Owner is given an opportunity to service review and reasonably negotiate in good faith the content of any Mortgage Loans such documents not specifically referenced or provided for herein. Servicer shall cooperate in connection with a Reconstitution, with good faith in negotiating any delinquency and cumulative loss termination triggers in the Reconstitution Agreement.
(c) With respect to each Reconstitution Whole Loan Transfer and each Securitization Transfer entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence proceduresprocedures including participating in meetings with rating agencies, bond insurers and such other parties as the Owner shall designate and participating in meetings with prospective purchasers of the Mortgage Loans or interests therein and providing information reasonably requested by such purchasers; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesOwner; (3)
(a) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date which shall not be more onerous than those required under this Agreement or (b) make the representations and warranties regarding with respect to the Servicer servicing of the Mortgage Loans set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, or such representations and warranties with respect to the servicing of the Mortgage Loans as may be required by any Rating Agency or prospective purchaser of the related securities or such Mortgage Loans, in connection with such Reconstitution; provided, provided however, that the Servicer may negotiate the terms of any additional such representations and warranties shall not included in be more onerous than those required under this Agreement. In connection with such Reconstitution, the The Servicer shall: (i) shall use its reasonable best efforts to provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, request and (ii) provide subject to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense provisions of the Owner (not to exceed $15,000Section 13.13(b), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreoverparticipant.
(d) In connection with any Securitization Transfer, the Servicer agrees to cooperate with all reasonable requests made shall, if requested by the Owner or its designee, deliver to effect the Owner or its designee within 7 Business Days after such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect request information with respect to such Servicer information reasonably requested by the Owner or its designee and the information set forth under Item 1108(b) of Regulation AB (collectively, the "Servicer Information"), which as of the date hereof includes:
(i) a description of the Servicer's form of organization;
(ii) a description of how long the Servicer has been servicing residential mortgage loans; a general discussion of the Servicer's experience in servicing assets of any type as well as a more detailed discussion of the Servicer's experience in, and procedures for the servicing function it will perform under the Servicing Agreement; material information regarding the size, composition and growth of the Servicer's portfolio of mortgage loans of the type similar to the Mortgage Loans, shall continue Loans and information on factors related to the Servicer that may be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect material to any analysis of the servicing of the Mortgage Loans sold in a Securitization Transaction where or the related asset-backed securities, as applicable (including, without limitation, whether any prior securitizations of mortgage loans of the type similar to the Mortgage Loans involving the Servicer is a servicerhave defaulted or experienced an early amortization or other performance triggering event because of servicing, the Servicer agrees that on or before March 15th extent of each year beginning March 15, 2006, outsourcing the Servicer shall deliver to the depositor, the master servicer (utilizes or if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge there has been previous disclosure of servicing at the Servicer for use in connection material noncompliance with any Form 10-K to be filed with the Securities and Exchange Commission Servicing Criteria with respect to other securitizations involving the securitization trust and the annual statement Servicer);
(iii) a description of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree any material changes to the following indemnification provision: "Servicer's policies or procedures in the servicing function it will perform in under the Agreement for mortgage loans of the type similar to the Mortgage Loans during the past three years; and
(iv) information regarding the Servicer's financial condition to the extent that there is a material risk that the effect on one or more aspects of servicing resulting from such financial condition could have a material impact on the performance of the pool of Mortgage Loans or performance of the related asset-backed securities.
(e) The Servicer shall indemnify the Owner, any party acting as depositor in any Securitization Transfer, each Person who controls the Owner or such depositor, and each underwriter and placement agent in any Securitization Transfer, and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct on behalf of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then regarding the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result Information. For purposes of the previous sentence, "Owner" shall mean the Person then acting as the Owner under this Agreement and any and all Persons who previously were "Owners" under this Agreement. The Owner shall indemnify the Servicer and each Person who controls the Servicer and hold each of them harmless from and against any losses, claimsdamages, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified partypenalties, on the one handfines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that each of them may sustain in any way related to any information provided by the Servicer, on the other, Owner in any offering document prepared in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewithReconstitution."
Appears in 1 contract
Samples: Master Servicing and Trust Agreement (GSAA Home Equity Trust 2006-4)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner Purchaser agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Closing Date, on one or more dates (each, each a "Reconstitution Date") at the OwnerPurchaser's sole option, the Owner Purchaser may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (each a "Fannie Mae Transfer"); or
x) Freddie Mac (b) Whole Loan Transfers to the "Freddie MacMac Transfer"); or
(c) xxe or more txxxx xxrty purchasers in one or more third party purchasers in onx xx xxre Whole Loan Transfers; or
(d) one or more trusts or other entities to be formed as part of one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the OwnerPurchaser, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx ix xxxxection wxxx x Xxxle Xhole Loan Transfer, a Seller's warranties an assignment and servicing assumption agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with With respect to each Reconstitution Whole Loan Transfer and each Securitization Transaction entered into by the OwnerPurchaser, the Servicer agrees (1) to cooperate fully with the Owner Purchaser and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesPurchaser; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitutionthat connection, the Servicer shall: (i) shall provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner Purchaser or any such other participant shall reasonably request, ; (ii) provide to such master servicer or issueradditional reasonable representations, as the case mat bewarranties, and any other participants in such Reconstitutioncovenants, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner Purchaser or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner Purchaser or any such participant in the form of Exhibit G attached hereto. Moreover, mutually agreeable to the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certificationPurchaser. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify the Purchaser, each Affiliate designated by the Purchaser and each Person who controls the Purchaser or such Affiliate and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct on behalf of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and regarding the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."the
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-3xs)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Speciax Xxxxicing Option); or
(b) Whole Loan Transfers to Freddie Mac; or
(c) one or more third party purchasers in onx xx xxre xxx or more Whole Loan Transfers; or
(d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie Mac, any and all pool purchase contracts, andaxx/xx xxrxxxents xxxxxxably agreemenxx xxxxonably acceptable to the Servicer among the Owner, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx ix xxxxection wxxx x Xxxle Xhole Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2006-7)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Specxxx Xxrxxxing Option); or
(b) Whole Loan Transfers to Freddie Mac; or
(c) one or more third party purchasers in onx purchaxxxx xx xxre one or more Whole Loan Transfers; or
(d) one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie Mac, any and all pool purchase contracts, andxxx/xx xxrxxxents xxxxxxably xr xxreemxxxx xxasonably acceptable to the Servicer among the Owner, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx xx xxnnection xxxx x Xxxle Whole Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with respect to each Reconstitution entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the parties; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitution, the Servicer shall: (i) provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, (ii) provide to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner to effect such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicer, the Servicer agrees that on or before March 15th of each year beginning March 15, 2006, the Servicer shall deliver to the depositor, the master servicer (if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge of servicing at the Servicer for use in connection with any Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, charges, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified party, on the one hand, and the Servicer, on the other, in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-3xs)
Cooperation of Servicer with a Reconstitution. The Servicer and the Owner Purchaser agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Closing Date, on one or more dates (each, each a "“Reconstitution Date"”) at the Owner's Purchaser’s sole option, the Owner Purchaser may effect a sale (each, a "“Reconstitution"”) of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(a) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Program (Special Xxxxxxixx Servicing Option) (eaxx x “Fannie Mae Transfer”); or
(b) Whole Loan Transfers to Freddie MacMac (the “Freddie Mac Transfer”); or
(c) xxx xr xxre third party purchasers xx xxx or more Whxxx Xxxn Transfers; or
d) one or more third party purchasers in onx xx xxre Whole Loan Transfers; or
(d) trusts or other entities to be formed as part of one or more Securitization Transactions. The Servicer agrees to execute in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the OwnerPurchaser, the Servicer, Fannie Mae or Freddie Mac (as the case may be) and any servicer in xxxxxxtion witx x Xxxle Loan Transferconnection with a Whoxx Xxxn Transfxx, a Seller's warranties xx assignment and servicing assumption agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and in connection with a Securitization Transaction, a pooling and servicing agreement or sale and servicing agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "“Reconstitution Agreements"”). In the event the Servicer is chosen by the Owner, and the Servicer agrees, to service any Mortgage Loans in connection with a Reconstitution, with With respect to each Reconstitution Whole Loan Transfer and each Securitization Transaction entered into by the OwnerPurchaser, the Servicer agrees (1) to cooperate fully with the Owner Purchaser and any prospective purchaser with respect to all reasonable requests and due diligence procedures; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesPurchaser; (3) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date or make the representations and warranties regarding the Servicer set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, in connection with such Reconstitution, provided that the Servicer may negotiate the terms of any additional representations and warranties not included in this Agreement. In connection with such Reconstitutionthat connection, the Servicer shall: (i) shall provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner Purchaser or any such other participant shall reasonably request, ; (ii) provide to such master servicer or issueradditional reasonable representations, as the case mat bewarranties, and any other participants in such Reconstitutioncovenants, at the expense of the Owner (not to exceed $15,000), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner Purchaser or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner Purchaser or any such participant mutually agreeable to the Servicer and the Purchaser. The Servicer shall indemnify the Purchaser, each Affiliate designated by the Purchaser and each Person who controls the Purchaser or such Affiliate and hold each of them harmless from and against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that each of them may sustain in any way related to any information provided by or on behalf of the form of Exhibit G attached heretoServicer regarding the Servicer, the Servicer’s servicing practices or performance, the Mortgage Loans or the Underwriting Guidelines set forth in any offering document prepared in connection with any Reconstitution. Moreover, the Servicer agrees to cooperate with all reasonable requests made by the Owner Purchaser to effect such Reconstitution Agreements. But in no event shall the Servicer be obligated to any greater extent under a Reconstitution Agreement than it is under this Agreement. For purposes of this Section, “Purchaser” shall mean the Person then acting as the Purchaser under this Agreement and any and all Persons who previously were “Purchasers” under this Agreement. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect with respect to the Mortgage Loans, shall continue to be serviced in accordance with the terms of this Agreement and the Purchase Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect to any Mortgage Loans sold in a Securitization Transaction where the Servicer is a servicerTransaction, the Servicer agrees that on or before prior to March 15th 1st of each year beginning March 15, 2006year, the Servicer shall deliver to the depositor, the master servicer (if any), Purchaser and the trustee for the securitization trust created in the such Securitization Transaction, and their officers, directors and affiliates, (a) a certification in substantially the form attached annexed hereto as Exhibit I hereto7, executed by the senior officer in charge of servicing at the Servicer Servicer, for use inclusion in connection with any the Annual Report on Form 10-K to be filed with the Securities and Exchange Commission with respect to the securitization trust and the annual statement of compliance and accountant's report referred to in formed for such certificationSecuritization Transaction. In such event the Servicer shall agree to the following indemnification provision: "The Servicer shall indemnify and hold harmless the depositorPurchaser, the master servicer (if any)depositor for such Securitization Transaction, and the trustee, trustee for such Securitization Transaction and their respective officers, directors and Affiliates, Affiliates from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments and other costs and expenses arising out of or based upon any breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, the Servicer’s negligence, bad faith or willful misconduct of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence herein is unavailable or insufficient to hold harmless any the indemnified party, then the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party depositor and/or such trustee as a result of the losses, claims, damages or liabilities of such indemnified party depositor and/or such trustee in such proportion as is appropriate to reflect the relative fault of such indemnified partydepositor or such trustee, as the case may be, on the one hand, hand and the Servicer, Servicer on the other, other in connection with a breach of the Servicer's ’s obligations under this paragraph or any material misstatement or omission, the Servicer’s negligence, bad faith or willful misconduct of the Servicer in connection therewith."
Appears in 1 contract
Samples: Servicing Agreement (Morgan Stanley Mortgage Loan Trust 2007-5ax)
Cooperation of Servicer with a Reconstitution. (a) The Servicer and the Owner agree that with respect to some or all of the Mortgage Loans, after the related Servicing Transfer Date, on one or more dates (each, each a "Reconstitution Date") at the Owner's sole option, the Owner may effect a sale (each, a "Reconstitution") of some or all of the Mortgage Loans then subject to this Agreement, without recourse, to:
(ai) Whole Loan Transfers to Fannie Mae under its Cash Purchase Program or MBS Prxxxxx ox XBS Program (Special Xxxxxxixx Servicing Option) (each a "Fannie Mae Transfer"); or
(bxx) Whole Loan Transfers to Freddie MacMac (the "Freddie Mac Transfex"); orxx
(cxxx) one or more third party purchasers in onx xx xxre one or more Whole Loan Transfers; or
(div) one or more trusts or other entities to be formed as part of one or more Securitization TransactionsTransfers. With respect to each Whole Loan Transfer, Agency Transfer or Securitization Transfer, as the case may be, entered into by the Owner:
(b) The Servicer agrees to execute (i) in connection with any Whole Loan Transfer to Fannie Mae or Freddie MacAgency Transfer, any and all pool purchase contracts, and/xx xxrxxxents xxxxxxably and/or agreements reasonably acceptable to the Servicer among the Owner, the Servicer, Fannie Mae or Freddie Mac (as the case may becasx xxx bx) and any servicer xxx xxxvicer, (ii) in xxxxxxtion witx x Xxxle connection with a Whole Loan Transfer, a Seller's warranties and servicing agreement or a participation and servicing agreement in form and substance reasonably acceptable to the Servicer, and (iii) in connection with a Securitization TransactionTransfer, a pooling and servicing agreement or sale and servicing other similar agreement in form and substance reasonably acceptable to the Servicer (collectively the agreements referred to herein are designated, the "Reconstitution Agreements"). In the event ; provided that provisions of such Reconstitution Agreements will not contain any substantially greater obligations of, or any substantially lower benefits to, the Servicer than those contained in this Agreement and each of the Servicer and Owner is chosen by given an opportunity to review and reasonably negotiate in good faith the content of such provisions (which shall not be more onerous than those required under this Agreement) including, but not limited to servicing representations and warranties (dated as of the settlement or closing date in connection with such Reconstitution (each, a "Reconstitution Date")) related to the Mortgage Loans for the period of time from the date on which the Servicer began servicing the Mortgage Loans through the Reconstitution Date to the effect that (a) the Servicer has serviced the Mortgage Loans in accordance with this Agreement and has provided accurate "paid through" data with respect to the Mortgage Loans to the Owner, (b) except as reflected in the "paid through" data delivered to the Owner, there is no payment default existing under any Mortgage or any Mortgage Note as of the cut-off date for the Reconstitution, and (c) to the best of the Servicer's knowledge, there is no non-payment default existing under any Mortgage or Mortgage Note, or any event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a non-payment default, breach, violation or event which would permit acceleration as of the closing date for the Reconstitution; and representations and warranties (dated as of the Reconstitution Date); and, provided, further, that each of the Servicer agrees, and the Owner is given an opportunity to service review and reasonably negotiate in good faith the content of any Mortgage Loans such documents not specifically referenced or provided for herein. Servicer shall cooperate in connection with a Reconstitution, with good faith in negotiating any delinquency and cumulative loss termination triggers in the Reconstitution Agreement.
(c) With respect to each Reconstitution Whole Loan Transfer and each Securitization Transfer entered into by the Owner, the Servicer agrees (1) to cooperate fully with the Owner and any prospective purchaser with respect to all reasonable requests and due diligence proceduresprocedures including participating in meetings with rating agencies, bond insurers and such other parties as the Owner shall designate and participating in meetings with prospective purchasers of the Mortgage Loans or interests therein and providing information reasonably requested by such purchasers; (2) to execute, deliver and perform all Reconstitution Agreements required by the Owner and as negotiated by the partiesOwner; (3)
(a) to restate as nearly as possible the representations and warranties set forth in this Agreement as of the settlement or closing date in connection with such Reconstitution Date which shall not be more onerous than those required under this Agreement or (b) make the representations and warranties regarding with respect to the Servicer servicing of the Mortgage Loans set forth in the related selling/servicing guide of the master servicer or issuer, as the case may be, or such representations and warranties with respect to the servicing of the Mortgage Loans as may be required by any Rating Agency or prospective purchaser of the related securities or such Mortgage Loans, in connection with such Reconstitution; provided, provided however, that the Servicer may negotiate the terms of any additional such representations and warranties shall not included in be more onerous than those required under this Agreement. In connection with such Reconstitution, the The Servicer shall: (i) shall use its reasonable best efforts to provide to such master servicer or issuer, as the case may be, and any other participants in such Reconstitution, : (i) any and all information and appropriate verification of information which may be reasonably available to the Servicer or its affiliates, whether through letters of its auditors and counsel or otherwise, as the Owner or any such other participant shall reasonably request, request and (ii) provide subject to such master servicer or issuer, as the case mat be, and any other participants in such Reconstitution, at the expense provisions of the Owner (not to exceed $15,000Section 13.13(b), such opinions of counsel, letters from auditors, and certificates of public officials or officers of the Servicer as are reasonably believed necessary by the Owner or any such other participant; and (iii) to execute, deliver and satisfy all conditions set forth in any indemnity agreement as required by the Owner or any such participant in the form of Exhibit G attached hereto. Moreoverparticipant.
(d) In connection with any Securitization Transfer, the Servicer agrees to cooperate with all reasonable requests made shall, if requested by the Owner or its designee, deliver to effect the Owner or its designee within 7 Business Days after such Reconstitution Agreements. All Mortgage Loans not sold or transferred pursuant to a Reconstitution shall remain subject to this Agreement and, if this Agreement shall remain in effect request information with respect to such Servicer information reasonably requested by the Owner or its designee and the information set forth under Item 1108(b) of Regulation AB (collectively, the "Servicer Information"), which as of the date hereof includes:
(i) a description of the Servicer's form of organization;
(ii) a description of how long the Servicer has been servicing residential mortgage loans; a general discussion of the Servicer's experience in servicing assets of any type as well as a more detailed discussion of the Servicer's experience in, and procedures for the servicing function it will perform under the Servicing Agreement; material information regarding the size, composition and growth of the Servicer's portfolio of mortgage loans of the type similar to the Mortgage Loans, shall continue Loans and information on factors related to the Servicer that may be serviced in accordance with the terms of this Agreement and with respect thereto this Agreement shall remain in full force and effect. With respect material to any analysis of the servicing of the Mortgage Loans sold in a Securitization Transaction where or the related asset-backed securities, as applicable (including, without limitation, whether any prior securitizations of mortgage loans of the type similar to the Mortgage Loans involving the Servicer is a servicerhave defaulted or experienced an early amortization or other performance triggering event because of servicing, the Servicer agrees that on or before March 15th extent of each year beginning March 15, 2006, outsourcing the Servicer shall deliver to the depositor, the master servicer (utilizes or if any), and the trustee for the securitization trust created in the Securitization Transaction, and their officers, directors and affiliates, (a) a certification in the form attached as Exhibit I hereto, executed by the senior officer in charge there has been previous disclosure of servicing at the Servicer for use in connection material noncompliance with any Form 10-K to be filed with the Securities and Exchange Commission Servicing Criteria with respect to other securitizations involving the securitization trust and the annual statement Servicer);
(iii) a description of compliance and accountant's report referred to in such certification. In such event the Servicer shall agree any material changes to the following indemnification provision: "Servicer's policies or procedures in the servicing function it will perform in under the Agreement for mortgage loans of the type similar to the Mortgage Loans during the past three years; and
(iv) information regarding the Servicer's financial condition to the extent that there is a material risk that the effect on one or more aspects of servicing resulting from such financial condition could have a material impact on the performance of the pool of Mortgage Loans or performance of the related asset-backed securities.
(e) The Servicer shall indemnify the Owner, any party acting as depositor in any Securitization Transfer, each Person who controls the Owner or such depositor, and each underwriter and placement agent in any Securitization Transfer, and hold each of them harmless the depositor, the master servicer (if any), and the trustee, and their respective officers, directors and Affiliates, from and against any losses, damages, chargespenalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments judgments, and any other costs costs, fees and expenses arising out that each of them may sustain in any way related to any information provided by or based upon any breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct on behalf of the Servicer in connection therewith. If the indemnification provided for in the preceding sentence is unavailable or insufficient to hold harmless any indemnified party, then regarding the Servicer agrees that it shall contribute to the amount paid or payable by such indemnified party as a result Information. For purposes of the previous sentence, "Owner" shall mean the Person then acting as the Owner under this Agreement and any and all Persons who previously were "Owners" under this Agreement. The Owner shall indemnify the Servicer and each Person who controls the Servicer and hold each of them harmless from and against any losses, claimsdamages, damages or liabilities of such indemnified party in such proportion as is appropriate to reflect the relative fault of such indemnified partypenalties, on the one handfines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and any other costs, fees and expenses that each of them may sustain in any way related to any information provided by the Servicer, on the other, Owner in any offering document prepared in connection with a breach of the Servicer's obligations under this paragraph or any material misstatement or omission, negligence, bad faith or willful misconduct of the Servicer in connection therewithReconstitution."
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