Exhibit 99.2
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
XXXXXXX XXXXX MORTGAGE BACKED SECURITIES TRUST, SERIES 2007-2,
as Issuing Entity
HSBC BANK USA, NATIONAL ASSOCIATION,
as Indenture Trustee
XXXXX FARGO BANK, N.A.,
as Master Servicer and Securities Administrator
and
TABERNA REALTY HOLDINGS TRUST,
as Seller
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SALE AND SERVICING AGREEMENT
Dated as of June 27, 2007
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Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2
Mortgage Loan Asset-Backed Notes
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.................................................... 1
Section 1.01. Definitions........................................... 1
Section 1.02. Other Definitional Provisions......................... 2
ARTICLE II CONVEYANCE OF MORTGAGE LOANS.................................. 2
Section 2.01. Conveyance of Mortgage Loans to the Issuing Entity.... 2
Section 2.02. Acceptance of Mortgage Loans by the Issuing Entity.... 5
Section 2.03. Assignment of Interest in the Mortgage Loan Purchase
Agreement and Assignment Agreement.................... 7
Section 2.04. Substitution of Mortgage Loans........................ 9
Section 2.05. Representations and Warranties Concerning the
Depositor............................................. 10
Section 2.06. Representations and Warranties Regarding the Master
Servicer.............................................. 11
Section 2.07. Assignment of Agreement............................... 12
Section 2.08. Representations, Warranties and Covenants of the
Seller................................................ 12
ARTICLE III ADMINISTRATION AND SERVICING OF MORTGAGE LOANS............... 13
Section 3.01. Master Servicer....................................... 13
Section 3.02. Monitoring of Servicer................................ 14
Section 3.03. Fidelity Bond......................................... 15
Section 3.04. Power to Act; Procedures.............................. 15
Section 3.05. Due-on-Sale Clauses; Assumption Agreements............ 16
Section 3.06. Release of Mortgage Files............................. 16
Section 3.07. Documents, Records and Funds in Possession of Master
Servicer To Be Held for the Issuing Entity and the
Indenture Trustee..................................... 17
Section 3.08. Standard Hazard Insurance and Flood Insurance
Policies.............................................. 18
Section 3.09. Presentment of Claims and Collection of Proceeds...... 18
Section 3.10. Maintenance of the Primary Mortgage Insurance
Policies.............................................. 19
Section 3.11. Indenture Trustee to Retain Possession of Certain
Insurance Policies and Documents...................... 19
Section 3.12. Realization Upon Defaulted Mortgage Loans............. 20
Section 3.13. Compensation for the Master Servicer.................. 20
Section 3.14. REO Property.......................................... 20
Section 3.15. Annual Statement as to Compliance..................... 21
Section 3.16. Reports on Assessment of Compliance and Attestation... 22
Section 3.17. Periodic Filings...................................... 25
Section 3.18. UCC................................................... 31
Section 3.19. Foreclosure Proceedings, and Optional Purchase of
Delinquent and Defaulted Mortgage Loans............... 32
Section 3.20. Monthly Advances...................................... 32
Section 3.21. Compensating Interest Payments........................ 33
Section 3.22. Compliance with Regulation AB......................... 33
ARTICLE IV ACCOUNTS...................................................... 33
Section 4.01. Collection Accounts................................... 33
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TABLE OF CONTENTS
(continued)
PAGE
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Section 4.02. Master Servicer Collection Account.................... 35
Section 4.03. Permitted Withdrawals and Transfers from the Master
Servicer Collection Account........................... 36
Section 4.04. Payment Account....................................... 37
Section 4.05. Permitted Withdrawals and Transfers from the Payment
Account............................................... 37
ARTICLE V THE MASTER SERVICER............................................ 39
Section 5.01. Liabilities of the Master Servicer.................... 39
Section 5.02. Merger or Consolidation of the Master Servicer........ 39
Section 5.03. Indemnification of the Indenture Trustee, Owner
Trustee, the Master Servicer and the Securities
Administrator......................................... 40
Section 5.04. Limitations on Liability of the Master Servicer and
Others................................................ 40
Section 5.05. Master Servicer Not to Resign......................... 42
Section 5.06. Successor Master Servicer............................. 42
Section 5.07. Sale and Assignment of Master Servicing............... 43
ARTICLE VI DEFAULT....................................................... 43
Section 6.01. Master Servicer Events of Default..................... 43
Section 6.02. Indenture Trustee to Act; Appointment of Successor.... 45
Section 6.03. Notification to Noteholders........................... 46
Section 6.04. Waiver of Defaults.................................... 46
ARTICLE VII MISCELLANEOUS PROVISIONS..................................... 47
Section 7.01. Amendment............................................. 47
Section 7.02. Recordation of Agreement.............................. 48
Section 7.03. Governing Law......................................... 48
Section 7.04. Notices............................................... 48
Section 7.05. Severability of Provisions............................ 49
Section 7.06. Successors and Assigns................................ 49
Section 7.07. Article and Section Headings.......................... 49
Section 7.08. Counterparts.......................................... 49
Section 7.09. Notice to Rating Agencies............................. 49
Section 7.10. Termination........................................... 50
Section 7.11. No Petition........................................... 50
Section 7.12. No Recourse........................................... 50
Section 7.13. Additional Terms Regarding Indenture.................. 50
Section 7.14. Third Party Beneficiary............................... 51
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TABLE OF CONTENTS
(continued)
EXHIBITS PAGE
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Exhibit A - Mortgage Loan Schedule
Exhibit B - Request for Release of Documents
Exhibit C - Servicing Agreement
Exhibit D - Assignment Agreement
Exhibit E - Mortgage Loan Purchase Agreement
Exhibit F - Form of Xxxxxxxx-Xxxxx Certification
Exhibit G - Form of Back-up Xxxxxxxx-Xxxxx Certification
Exhibit H - Additional Disclosure Notification
Exhibit I-1 - Additional Form 10-D Disclosure
Exhibit I-2 - Additional Form 10-K Disclosure
Exhibit I-3 - Form 8-K Disclosure Information
Exhibit J Servicing Criteria to be Addressed in Assessment of Compliance
Exhibit K Form of Item 1123 Certification of Servicer
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SALE AND SERVICING AGREEMENT
Sale and Servicing Agreement dated as of June 27, 2007 (the "Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation, as
depositor (the "Depositor"), Xxxxxxx Xxxxx Mortgage Backed Securities Trust,
Series 2007-2, a Delaware statutory trust, as issuing entity (the "Issuing
Entity"), HSBC Bank USA, National Association, a national banking association,
as indenture trustee (the "Indenture Trustee"), Xxxxx Fargo Bank, N.A. ("Xxxxx
Fargo"), as master servicer (in such capacity, the "Master Servicer") and as
securities administrator (in such capacity, the "Securities Administrator") and
Taberna Realty Holdings Trust, a Maryland real estate investment trust, as
seller (in such capacity, the "Seller").
PRELIMINARY STATEMENT
Prior to the Closing Date, the Sponsor purchased the Mortgage Loans from
Xxxxx Fargo and subsequently assigned all of its rights to the Mortgage Loans,
including the representations and warranties with respect to the Mortgage Loans,
to the Seller. On or prior to the Closing Date, the Depositor acquired the
Mortgage Loans from the Seller pursuant to the Mortgage Loan Purchase Agreement
and the Assignment Agreement, pursuant to which the Seller has made as of the
date hereof the representations and warranties regarding the Mortgage Loans that
were assigned to the Seller by the Sponsor.
On or prior to the Closing Date, pursuant to the Trust Agreement, the
Depositor created Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2,
a Delaware statutory trust, for the purpose of holding the Mortgage Loans and
issuing the Trust Certificates pursuant to the Trust Agreement and the Notes
pursuant to the Indenture. Pursuant to this Agreement, on the Closing Date, the
Depositor will sell the Mortgage Loans and certain other property to the Issuing
Entity and pursuant to the Indenture, the Issuing Entity will pledge all of its
right, title and interest in and to the Mortgage Loans and other property
acquired from the Depositor pursuant to this Agreement to the Indenture Trustee
to secure the Notes issued pursuant to the Indenture. In consideration for the
Mortgage Loans and other property conveyed pursuant to this Agreement, the
Depositor will receive from the Issuing Entity the Certificates evidencing the
entire beneficial ownership interest in the Issuing Entity and the Notes
representing indebtedness of the Issuing Entity.
The Mortgage Loans will have an Outstanding Principal Balance as of the
Cut-off Date, after deducting all Scheduled Principal due on or before the
Cut-off Date, of $645,969,567.67.
In consideration of the mutual agreements herein contained, each of the
Depositor, the Issuing Entity, the Master Servicer, the Securities
Administrator, the Seller and the Indenture Trustee undertakes and agrees to
perform their respective duties hereunder as follows:
ARTICLE I
Definitions
Section 1.01. Definitions.
For all purposes of this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have
the meanings assigned to such terms in the Definitions contained in Appendix A
to the Indenture which is incorporated by reference herein.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such
certificate or other document, to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; Section and Exhibit
references contained in this Agreement are references to Sections and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including without limitation".
(d) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as
well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
ARTICLE II
Conveyance of Mortgage Loans
Section 2.01. Conveyance of Mortgage Loans to the Issuing Entity.
(a) The Depositor, concurrently with the execution and delivery of
this Agreement, sells, transfers and assigns to the Issuing Entity without
recourse all its right, title and interest in and to (i) the Mortgage Loans
and the proceeds thereof and all rights under the Related Documents; (ii)
all funds on deposit from time to time in the Master Servicer Collection
Account, excluding any investment income from such funds; (iii) all funds
on deposit from time to time in the Payment Account and in all proceeds
thereof; (iv) any REO Property; (v) (I) all rights under the Mortgage Loan
Purchase Agreement and Assignment Agreement as assigned to the Issuing
Entity to the extent provided in Section 2.03(a), (II) all rights under the
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Required Insurance Policies and any amounts paid or payable by the insurer
under any Insurance Policy (to the extent the mortgagee has a claim
thereto) and (III) the rights with respect to the Servicing Agreement, as
assigned to the Issuing Entity by the Assignment Agreement; and (vi) any
proceeds of the foregoing. Although it is the intent of the Depositor and
the Issuing Entity that the conveyance of the Depositor's right, title and
interest in and to the Mortgage Loans and other assets in the Trust Estate
to the Issuing Entity pursuant to this Agreement shall constitute a
purchase and sale and not a loan, in the event that such conveyance is
deemed to be a loan, it is the intent of the parties to this Agreement that
the Depositor shall be deemed to have granted to the Issuing Entity a first
priority perfected security interest in all of the Depositor's right, title
and interest in, to and under the Mortgage Loans and other assets in the
Trust Estate, and that this Agreement shall constitute a security agreement
under applicable law.
(b) In connection with such transfer and assignment of the Mortgage
Loans, the Depositor shall deliver to, and deposit with, or cause to be
delivered to and deposited with, the Custodian, on behalf of the Issuing
Entity, the following documents or instruments with respect to each
Mortgage Loan so transferred and assigned (or such related documents as
have been delivered to the Depositor by the Seller pursuant to the Mortgage
Loan Purchase Agreement):
(i) The original Mortgage Note endorsed, "Pay to the order of
___________, without recourse" and signed in the name of the name of last
endorsee, by an authorized officer of the last endorsee. If the Mortgage Loan
was acquired by the last endorsee in a merger or other type of acquisition, the
endorsement must be by "[name of last endorsee], successor [by merger to or in
interest to, as applicable] [name of predecessor]"; and if the Mortgage Loan was
acquired or originated by the last endorsee while doing business under another
name, the endorsement must be by "[name of last endorsee], successor in interest
to [previous name]." The Mortgage Note shall include all intervening
endorsements showing a complete chain of title from the originator to the last
endorsee. A lost note affidavit (including a copy of the original Mortgage Note)
may be delivered in lieu of the original Mortgage Note;
(ii) The original recorded Mortgage, with evidence of recording
thereon, or, if the original Mortgage has not yet been returned from the
recording office, a copy of the original Mortgage certified by the previous
owner to be a true copy of the original of the Mortgage which has been delivered
for recording in the appropriate recording office of the jurisdiction in which
the Mortgaged Property is located;
(iii) The original Assignment of Mortgage, executed in blank by either
the Seller or its Servicer. If the Mortgage Loan was acquired by the last
endorsee in a merger or other type of acquisition, the assignment must be by
"[name of last assignee], successor [by merger to or in interest to, as
applicable] [name of predecessor]"; and if the Mortgage Loan was acquired or
originated by the last endorsee while doing business under another name, the
assignment must be by "[name of last assignee], successor in interest to
[previous name];"
(iv) The original policy of title insurance (or a preliminary title
report if the original title insurance policy has not been received from the
title insurance company);
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(v) Originals of any intervening assignments of the Mortgage, with
evidence of recording thereon or, if the original intervening assignment has not
yet been returned from the recording office, a copy of such assignment certified
by the Seller to be a true copy of the original of the assignment which has been
delivered for recording in the appropriate recording office of the jurisdiction
in which the Mortgaged Property is located;
(vi) With respect to a Mortgage Loan that, according to the Mortgage
Loan Schedule is covered by a primary mortgage insurance policy, the original or
a copy of primary mortgage insurance certificate, if any;
(vii) If indicated on the Mortgage Loan Schedule, originals of all
assumption and modification agreements, if any, with originals or copies of the
underlying instruments being modified;
(viii) [Reserved];
(ix) With respect to each Cooperative Loan:
(A) the original proprietary lease;
(B) the original recognition agreement;
(C) the original security agreement;
(D) the original or copy of the assignment of proprietary lease;
(E) the original cooperative stock certificate and stock power
executed by borrower in blank;
(F) the original UCC-1 Financing Statements; and
(G) the original UCC-3 Financing Statements; and
(x) Power of Attorney, if applicable.
provided, however, that (1) in lieu of the foregoing, the Depositor may deliver
to (or cause to be delivered to) the Custodian, the following documents, under
the circumstances set forth below: (w) in lieu of the original Security
Instrument (including the Mortgage), assignments to the Indenture Trustee or
intervening assignments thereof which have been delivered, are being delivered
or will, upon receipt of recording information relating to such documents
required to be included thereon, be delivered to recording offices for recording
and have not been returned to the Depositor (or its predecessor) in time to
permit their delivery as specified above, the Depositor may deliver (or cause to
be delivered) a true copy thereof with a certification by the Servicer, or its
agent on its behalf, substantially to the effect that such copy is a true and
correct copy of the original; (x) in lieu of the Security Instrument, assignment
in blank or to the Indenture Trustee or intervening assignments thereof, if the
applicable jurisdiction retains the originals of such documents (as evidenced by
a certification from the Depositor to such effect) the Depositor may deliver (or
cause to be delivered) photocopies of such documents containing
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an original certification by the judicial or other governmental authority of the
jurisdiction where such documents were recorded or from the Depositor's agent,
escrow agent or closing attorney; and (y) in lieu of the Mortgage Notes relating
to the Mortgage Loans, the Depositor may deliver (or cause to be delivered) lost
note affidavits; (2) the Depositor shall not be required to deliver intervening
assignments or Mortgage Note endorsements between the Originator and the Seller,
between the Seller and the Depositor, between the Depositor and the Issuing
Entity, and between the Issuing Entity and the Indenture Trustee; and (3) in the
case of the Mortgage Loans which have been prepaid in full after the Cut-off
Date and prior to the Closing Date, the Depositor, in lieu of delivering the
above documents, may deliver to (or cause to be delivered to) the Indenture
Trustee, a certification to such effect and shall deposit all amounts paid in
respect of such Mortgage Loans in the Master Servicer Collection Account on the
Closing Date. The Depositor shall deliver (or cause to be delivered) such
original documents (including any original documents as to which certified
copies had previously been delivered) to the Custodian, promptly after they are
received. No assignment of the Security Instrument described above will be
recorded; provided, however, notwithstanding the foregoing, each assignment
shall be submitted for recording at no expense to the Issuing Entity or the
Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by
the Holders of Notes aggregating at least 25% of the Note Principal Balance of
the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event
of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure
relating to the Seller or the Depositor and (iv) the occurrence of a servicing
transfer as described in Section 6.02 hereof.
Section 2.02. Acceptance of Mortgage Loans by the Issuing Entity.
(a) The Issuing Entity acknowledges the sale, transfer and assignment
of the Trust Estate to it by the Depositor and receipt, subject to further
review by the Custodian on its behalf and to the exceptions which may be
noted by the Custodian on its behalf pursuant to the procedures described
below, of the documents (or certified copies thereof) delivered to the
Custodian, pursuant to Section 2.01, and any amendments, replacements or
supplements thereto and all other assets of the Trust Estate delivered to
it, in trust for the use and benefit of all present and future Holders of
the Notes issued pursuant to the Indenture. On the Closing Date, with
respect to the Mortgage Loans, in accordance with the Custodial Agreement,
the Custodian shall verify with respect to each Mortgage Loan by delivery
to the Depositor, the Seller, the Indenture Trustee and the Issuing Entity
of an Initial Certification, that (a) all documents described in Sections
2.01(b)(i), (ii), (iii), (iv) and (v) hereof and to the extent provided by
Section 2.01(b) and all documents described in Sections 2.01(b)(vi), (vii),
(viii), (ix) and (x) hereof, if applicable, are in its possession, (b) such
documents have been reviewed by it and appear regular on their face and
relate to such Mortgage Loan, (c) based on its examination and only as to
the foregoing documents, the information set forth in the Mortgage Loan
Schedule respecting such Mortgage Loan is correct and (d) each Mortgage
Note has been endorsed and each Assignment of Mortgage has been executed as
provided in Section 2.01 hereof. No later than 90 days after the Closing
Date (or, with respect to any Substitute Mortgage Loan, within five
Business Days after the receipt by the Custodian thereof), the Custodian,
in accordance with the Custodial Agreement, shall review each Mortgage File
delivered to it and shall execute and deliver to the Depositor, the Seller,
the Indenture Trustee and Issuing Entity an Interim Certification. In
conducting such review, the Custodian will ascertain whether all documents
required to be reviewed by it have been executed and
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received, and based on the Mortgage Loan Schedule, whether the Mortgage
Notes relate, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans it has received,
as identified in the Mortgage Loan Schedule. In performing any such review,
the Custodian may conclusively rely on the purported due execution and
genuineness of any such document and on the purported genuineness of any
signature thereon. If the Custodian finds any document constituting part of
the Mortgage File has not been executed or received, or is unrelated,
determined on the basis of the Mortgagor name, original principal balance
and loan number, to the Mortgage Loans identified in Exhibit A, or does not
conform on its face to the review criteria specified in this Section (a
"Material Defect"), the Custodian shall notify the Depositor, the Seller
and the Indenture Trustee of such Material Defect in writing. In accordance
with the Mortgage Loan Purchase Agreement, the Seller shall correct or cure
any such Material Defect within ninety (90) days from the date of notice
from the Custodian of the defect and if the Seller fails to correct or cure
the Material Defect within the relevant period, the Indenture Trustee shall
enforce the Seller's obligation under the Mortgage Loan Purchase Agreement
within ninety (90) days from the Indenture Trustee's notification to
provide a Substitute Mortgage Loan or purchase such Mortgage Loan at the
Repurchase Price; provided, however, that if such Material Defect relates
solely to the inability of the Seller to deliver the original Security
Instrument, or a certified copy because the originals of such documents, or
a certified copy have not been returned by the applicable jurisdiction, the
Seller shall not be required to purchase such Mortgage Loan if the Seller
delivers such original documents or certified copy promptly upon receipt,
but in no event later than 360 days after the Closing Date. The foregoing
repurchase obligation shall not apply in the event that the Seller cannot
deliver such original or copy of any document submitted for recording to
the appropriate recording office in the applicable jurisdiction because
such document has not been returned by such office; provided that the
Seller shall instead deliver a recording receipt of such recording office
or, if such receipt is not available, a certificate confirming that such
documents have been accepted for recording, and delivery to the Custodian
shall be effected by the Seller within thirty days of its receipt of the
original recorded document.
(b) No later than 180 days after the Closing Date, the Custodian, in
accordance with the Custodial Agreement, will review, for the benefit of
the Noteholders, the Mortgage Files delivered to it and will execute and
deliver or cause to be executed and delivered to the Depositor, the Seller,
the Indenture Trustee and the Issuing Entity a Final Certification. In
conducting such review, the Custodian will ascertain whether an original of
each document required to be recorded has been returned from the recording
office with evidence of recording thereon or a certified copy has been
obtained from the recording office. If the Custodian finds a Material
Defect, the Custodian shall promptly notify the Seller and the Indenture
Trustee in writing (provided, however, that with respect to those documents
described in subsections (b)(iv), (v) and (vii) of Section 2.01, the
Custodian's obligations shall extend only to the documents actually
delivered to the Custodian pursuant to such subsections). In accordance
with the Mortgage Loan Purchase Agreement, the Seller shall correct or cure
any such Material Defect within ninety (90) days
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from the date of notice from the Custodian or the Indenture Trustee of the
Material Defect and if the Seller is unable to cure such Material Defect
within such period, and if such Material Defect materially and adversely
affects the interests of the Noteholders in the related Mortgage Loan, the
Indenture Trustee shall enforce the Seller's obligation under the Mortgage
Loan Purchase Agreement within ninety (90) days from the Custodian's or
Indenture Trustee's notification to provide a Substitute Mortgage Loan or
purchase such Mortgage Loan at the Repurchase Price; provided, however,
that if such defect relates solely to the inability of the Seller to
deliver the original Security Instrument, or a certified copy, because the
originals of such documents or a certified copy, have not been returned by
the applicable jurisdiction, the Seller shall not be required to purchase
such Mortgage Loan if the Seller delivers such original documents or
certified copy promptly upon receipt but in no event later than 360 days
after the Closing Date.
(c) In the event that a Mortgage Loan is purchased by the Seller in
accordance with the Mortgage Loan Purchase Agreement as required by
Subsections 2.02(a) or (b) above, the Seller shall remit to the Master
Servicer the Repurchase Price for deposit in the Master Servicer Collection
Account and the Seller shall provide to the Securities Administrator and
the Indenture Trustee written notification detailing the components of the
Repurchase Price. Upon deposit of the Repurchase Price in the Master
Servicer Collection Account, the Indenture Trustee (upon receipt of a
Request for Release in the form of Exhibit B attached hereto with respect
to such Mortgage Loan and certification that the Repurchase Price has been
deposited in the Master Servicer Collection Account), shall cause the
Custodian to release to the Seller the related Mortgage File and the
Indenture Trustee shall execute and deliver all instruments of transfer or
assignment, without recourse, representation or warranty, furnished to it
by or on behalf of the Seller, as are necessary to vest in the Seller (or
its designee) title to and rights under the Mortgage Loan. Such purchase
shall be deemed to have occurred on the date on which the Repurchase Price
in available funds is deposited in the Master Servicer Collection Account.
The Master Servicer shall amend the Mortgage Loan Schedule, which was
previously delivered to it by the Depositor in a form agreed to between the
Depositor, the Indenture Trustee and the Custodian, to reflect such
repurchase and shall promptly deliver to the Rating Agencies, the Indenture
Trustee, the Custodian and the Issuing Entity a copy of such amendment. The
obligation of the Seller to repurchase or substitute for any Mortgage Loan
a Substitute Mortgage Loan as to which such a Material Defect in a
constituent document exists shall be the sole remedy respecting such
Material Defect available to the Issuing Entity, the Noteholders or to the
Indenture Trustee on their behalf. Notwithstanding anything to the contrary
contained herein, the parties hereto acknowledge that the functions of the
Indenture Trustee with respect to the custody, acceptance, inspection and
release of the Mortgage Files, including but not limited to certain
insurance policies and documents contemplated by this Agreement or the
Indenture, and preparation and delivery of the certifications shall be
performed by the Custodian pursuant to the terms and conditions of the
Custodial Agreement.
Section 2.03. Assignment of Interest in the Mortgage Loan Purchase
Agreement and Assignment Agreement.
(a) The Depositor hereby assigns to the Issuing Entity, all of its
right, title and interest in the Mortgage Loan Purchase Agreement and the
Assignment Agreement, including but not limited to the Seller's rights and
obligations pursuant to the Servicing Agreement. The Depositor hereby
acknowledges that such right, title and interest in the Mortgage Loan
Purchase Agreement and Assignment Agreement will be pledged by the Issuing
Entity to the Indenture Trustee pursuant to the Indenture. The obligations
of the Seller to substitute or repurchase, as applicable, a Mortgage Loan
shall be the Depositor's, the Issuing Entity's, the
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Indenture Trustee's and the Noteholders' sole remedy for any breach
thereof. At the request of the Issuing Entity or the Indenture Trustee, the
Depositor shall take such actions as may be necessary to enforce the above
right, title and interest on behalf of the Issuing Entity, the Indenture
Trustee and the Noteholders and shall execute such further documents as the
Issuing Entity or the Indenture Trustee may reasonably require in order to
enable the Indenture Trustee to carry out such enforcement.
(b) If the Depositor, the Seller, the Securities Administrator, the
Issuing Entity or the Indenture Trustee discovers a breach of any of the
representations and warranties set forth in the Mortgage Loan Purchase
Agreement or Assignment Agreement, which breach materially and adversely
affects the value of the interests of the Issuing Entity, the Noteholders
or the Indenture Trustee in the related Mortgage Loan, the party
discovering the breach shall give prompt written notice of the breach to
the other parties. The Seller, within 60 days of its discovery or receipt
of notice that such breach has occurred (whichever occurs earlier), shall
cure the breach in all material respects or, subject to the Mortgage Loan
Purchase Agreement, shall purchase the Mortgage Loan or any property
acquired with respect thereto from the Issuing Entity; provided, however,
that if there is a breach of any representation set forth in the Mortgage
Loan Purchase Agreement or Assignment Agreement, and the Mortgage Loan or
the related property acquired with respect thereto has been sold, then the
Seller shall pay, in lieu of the Repurchase Price, any excess of the
Repurchase Price over the Net Liquidation Proceeds received upon such sale.
If the Net Liquidation Proceeds exceed the Repurchase Price, any excess
shall be paid to the Seller to the extent not required by law to be paid to
the borrower. Any such purchase by the Seller shall be made by providing an
amount equal to the Repurchase Price to the Master Servicer for deposit in
the Master Servicer Collection Account and written notification detailing
the components of such Repurchase Price. The Depositor shall submit to the
Indenture Trustee and the Custodian a Request for Release, and the
Indenture Trustee shall cause the Custodian to release, upon receipt of
certification from the Master Servicer that the Repurchase Price has been
deposited in the Master Servicer Collection Account, to the Seller the
related Mortgage File and the Indenture Trustee shall execute and deliver
all instruments of transfer or assignment furnished to it by or on behalf
of the Seller, without recourse, representation or warranty as are
necessary to vest in the Seller title to and rights under the Mortgage Loan
or any property acquired with respect thereto. Such purchase shall be
deemed to have occurred on the date on which the Repurchase Price in
available funds is deposited in the Master Servicer Collection Account. The
Master Servicer shall amend the Mortgage Loan Schedule to reflect such
repurchase and shall promptly deliver to the Issuing Entity, Indenture
Trustee, the Custodian and the Rating Agencies a copy of such amendment.
Enforcement of the obligation of the Seller to purchase (or substitute a
Substitute Mortgage Loan for) any Mortgage Loan or any property acquired
with respect thereto (or pay the Repurchase Price as set forth in the above
proviso) as to which a breach has occurred and is continuing shall
constitute the sole remedy respecting such breach available to the Issuing
Entity, the Noteholders or the Indenture Trustee on their behalf.
(c) The Depositor hereby represents and warrants to the Issuing Entity
as follows:
(i) As of the Closing Date, no Mortgage Loan provides for interest
other than at either (x) a single fixed rate in effect throughout the term of
the Mortgage Loan or (y) a single
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"variable rate" (within the meaning of Treasury Regulations Section
1.860G-1(a)(3)) in effect throughout the term of the Mortgage Loan;
(ii) As of the Closing Date, each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G of the Code (without regard to
Treasury Regulations Section 1.860G-2(a)(3) or 1.860G-2(f) or any similar rule
that provides that a defective obligation is a qualified mortgage for a
temporary period); and
(iii) It is not intended that any Mortgage Loan is, without
limitation, a "High Cost Loan" as defined by the Home Ownership and Equity
Protection Act of 1994 or any other applicable anti-predatory lending laws.
Section 2.04. Substitution of Mortgage Loans.
Notwithstanding anything to the contrary in this Agreement, in lieu of
purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or
Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date
by which such purchase by the Seller would otherwise be required, tender to the
Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an
authorized officer of the Seller that such Substitute Mortgage Loan conforms to
the requirements set forth in the definition of "Substitute Mortgage Loan" in
this Agreement. The Indenture Trustee shall cause the Custodian to examine the
Mortgage File for any Substitute Mortgage Loan in the manner set forth in
Section 2.02(a) and the Indenture Trustee shall cause the Custodian to notify
the Seller, in writing, within five Business Days after receipt, whether or not
the documents relating to the Substitute Mortgage Loan satisfy the requirements
of Section 2.02. Within two Business Days after such notification, the Seller
shall provide to the Master Servicer for deposit in the Master Servicer
Collection Account the amount, if any, by which the Outstanding Principal
Balance as of the next preceding Due Date of the Mortgage Loan for which
substitution is being made, after giving effect to the Scheduled Principal due
on such date, exceeds the Outstanding Principal Balance as of such date of the
Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such
date, which amount shall be treated for the purposes of this Agreement as if it
were the payment by the Seller of the Repurchase Price for the purchase of a
Mortgage Loan by the Seller. After such notification to the Seller and, if any
such excess exists, upon receipt of certification from the Master Servicer that
such excess has been deposited in the Master Servicer Collection Account, the
Indenture Trustee shall accept such Substitute Mortgage Loan which shall
thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a
substitution, accrued interest on the Substitute Mortgage Loan for the month in
which the substitution occurs and any Principal Prepayments made thereon during
such month shall be the property of the Trust Estate and accrued interest for
such month on the Mortgage Loan for which the substitution is made and any
Principal Prepayments made thereon during such month shall be the property of
the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due
Date in the month of substitution shall be the property of the Seller and the
Scheduled Principal on the Mortgage Loan for which the substitution is made due
on such Due Date shall be the property of the Trust Estate. Upon acceptance of
the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the
Custodian of a Request for Release for such Mortgage Loan), the Indenture
Trustee shall cause the Custodian to release to the Seller the related Mortgage
File related to any Mortgage Loan released pursuant to the Mortgage Loan
Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall
execute and deliver all instruments of transfer or assignment, without recourse,
representation or warranty in form as provided to it as are necessary to vest in
the Seller title to and rights under any Mortgage Loan released pursuant to the
Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as
applicable. The Seller shall deliver to
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(or cause to be delivered to) the Custodian the documents related to the
Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan
Purchase Agreement and Subsections 2.01(b) and 2.02(b) of this Agreement, as
applicable, with the date of acceptance of the Substitute Mortgage Loan deemed
to be the Closing Date for purposes of the time periods set forth in those
Subsections. The representations and warranties made pursuant to the Mortgage
Loan Purchase Agreement and the Assignment Agreement shall be deemed to have
been made by the Seller with respect to each Substitute Mortgage Loan as of the
date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master
Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and
shall provide a copy of such amended Mortgage Loan Schedule to the Issuing
Entity, the Indenture Trustee, the Custodian and the Rating Agencies.
Section 2.05. Representations and Warranties Concerning the Depositor.
The Depositor hereby represents and warrants to the Issuing Entity, the
Indenture Trustee, the Seller, the Master Servicer and the Securities
Administrator as follows:
(i) the Depositor (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and (b) is
qualified and in good standing as a foreign corporation to do business in each
jurisdiction where such qualification is necessary, except where the failure so
to qualify would not reasonably be expected to have a material adverse effect on
the Depositor's business as presently conducted or on the Depositor's ability to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(ii) the Depositor has full corporate power to own its property, to
carry on its business as presently conducted and to enter into and perform its
obligations under this Agreement;
(iii) the execution and delivery by the Depositor of this Agreement
have been duly authorized by all necessary corporate action on the part of the
Depositor; and neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of any law, governmental rule, regulation,
judgment, decree or order binding on the Depositor or its properties or the
articles of incorporation or by-laws of the Depositor, except those conflicts,
breaches or defaults which would not reasonably be expected to have a material
adverse effect on the Depositor's ability to enter into this Agreement and to
consummate the transactions contemplated hereby;
(iv) the execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except those consents, approvals,
notices, registrations or other actions as have already been obtained, given or
made;
(v) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Depositor
enforceable against it in accordance with its terms
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(subject to applicable bankruptcy and insolvency laws and other similar laws
affecting the enforcement of the rights of creditors generally);
(vi) there are no actions, suits or proceedings pending or, to the
knowledge of the Depositor, threatened against the Depositor, before or by any
court, administrative agency, arbitrator or governmental body with respect to
any of the transactions contemplated by this Agreement; or
(vii) with respect to any other matter which in the judgment of the
Depositor will be determined adversely to the Depositor and will if determined
adversely to the Depositor materially and adversely affect the Depositor's
ability to enter into this Agreement or perform its obligations under this
Agreement; and the Depositor is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this Agreement;
and
(viii) immediately prior to the transfer and assignment to the Issuing
Entity, each Mortgage Note and each Mortgage were not subject to an assignment
or pledge, and the Depositor had good and marketable title to and was the sole
owner thereof and had full right to transfer and sell such Mortgage Loan to the
Issuing Entity free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest.
Section 2.06. Representations and Warranties Regarding the Master Servicer.
The Master Servicer represents and warrants to the Issuing Entity, the
Depositor, the Seller and the Indenture Trustee for the benefit of the
Noteholders, as follows:
(i) The Master Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America and has the corporate power to own its assets and to transact
the business in which it is currently engaged. The Master Servicer is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the character of the business transacted by it or
properties owned or leased by it requires such qualification and in which the
failure to so qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or other) of the Master Servicer or
the validity or enforceability of this Agreement;
(ii) The Master Servicer has the power and authority to make, execute,
deliver and perform this Agreement and all of the transactions contemplated
under this Agreement, and has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement. When executed and
delivered, this Agreement will constitute the legal, valid and binding
obligation of the Master Servicer enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(iii) The Master Servicer is not required to obtain the consent of any
other Person or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consent, license,
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approval or authorization, or registration or declaration, as shall have been
obtained or filed, as the case may be;
(iv) The execution and delivery of this Agreement and the performance
of the transactions contemplated hereby by the Master Servicer will not violate
any provision of any existing law or regulation or any order or decree of any
court applicable to the Master Servicer or any provision of the certificate of
incorporation or bylaws of the Master Servicer, or constitute a material breach
of any mortgage, indenture, contract or other agreement to which the Master
Servicer is a party or by which the Master Servicer may be bound; and
(v) No litigation or administrative proceeding of or before any court,
tribunal or governmental body is currently pending (other than litigation with
respect to which pleadings or documents have been filed with a court, but not
served on the Master Servicer), or to the knowledge of the Master Servicer
threatened, against the Master Servicer or any of its properties or with respect
to this Agreement or the Notes or the Certificates which, to the knowledge of
the Master Servicer, has a reasonable likelihood of resulting in a material
adverse effect on the transactions contemplated by this Agreement.
The foregoing representations and warranties shall survive any termination
of the Master Servicer hereunder.
Section 2.07. Assignment of Agreement.
The Seller, the Depositor and the Master Servicer hereby acknowledge and
agree that the Issuing Entity may assign its interest under this Agreement to
the Indenture Trustee, for the benefit of the Noteholders, as may be required to
effect the purposes of the Indenture, without further notice to, or consent of,
the Seller, the Depositor or the Master Servicer, and the Indenture Trustee
shall succeed to such of the rights of the Issuing Entity hereunder as shall be
so assigned. The Issuing Entity shall, pursuant to the Indenture, assign all of
its right, title and interest in and to the Mortgage Loans and its right to
exercise the remedies created by Article II of this Agreement for breaches of
the representations, warranties, agreements and covenants of the Seller
contained in the Mortgage Loan Purchase Agreement and the Assignment Agreement
to the Indenture Trustee, for the benefit of the Noteholders. The Seller agrees
that, upon such assignment to the Indenture Trustee, such representations,
warranties, agreements and covenants will run to and be for the benefit of the
Indenture Trustee and the Indenture Trustee may enforce, without joinder of the
Depositor or the Issuing Entity, the repurchase obligations of the Seller set
forth herein, in the Mortgage Loan Purchase Agreement and in the Assignment
Agreement with respect to breaches of such representations, warranties,
agreements and covenants. Any such assignment to the Indenture Trustee shall not
be deemed to constitute an assignment to the Indenture Trustee of any
obligations or liabilities of the Issuing Entity under this Agreement.
Section 2.08. Representations, Warranties and Covenants of the Seller.
The Seller hereby represents and warrants to the Issuing Entity, the
Depositor, the Indenture Trustee, the Master Servicer and the Securities
Administrator as follows:
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(i) The representations and warranties of the Seller in the Mortgage
Loan Purchase Agreement and Assignment Agreement are true and correct as of the
date hereof as if made on the date hereof.
(ii) The Seller is qualified as of the date hereof and will qualify at
all times that the Notes are Outstanding as a real estate investment trust
within the meaning of Section 856 of the Code and shall promptly notify the
Securities Administrator if at any time while the Notes are Outstanding it no
longer qualifies as a real estate investment trust within the meaning of Section
856 of the Code.
(iii) The Seller will hold all Notes (other than the Offered Notes or
Notes with respect to which a "will be debt" for federal income tax purposes
opinion has been delivered by nationally recognized federal income tax counsel)
either directly or through one or more subsidiaries, each of which is either a
"qualified REIT subsidiary" within the meaning of Section 856(i) of the Code or
a disregarded entity under Treasury Regulations promulgated pursuant to Section
7701 of the Code.
ARTICLE III
Administration and Servicing of Mortgage Loans
Section 3.01. Master Servicer.
The Master Servicer shall supervise, monitor and oversee the obligations of
the Servicer to service and administer the Mortgage Loans in accordance with the
terms of the Servicing Agreement and shall have full power and authority to do
any and all things which it may deem necessary or desirable in connection with
such master servicing and administration. In performing its obligations
hereunder, the Master Servicer shall act in a manner consistent with Accepted
Master Servicing Practices. Furthermore, the Master Servicer shall oversee and
consult with the Servicer as necessary from time-to-time to carry out the Master
Servicer's obligations hereunder, shall receive, review and evaluate all
reports, information and other data provided to the Master Servicer by the
Servicer and shall cause the Servicer to perform and observe the covenants,
obligations and conditions to be performed or observed by the Servicer under the
Servicing Agreement. The Master Servicer shall independently and separately
monitor the Servicer's servicing activities with respect to the Mortgage Loans,
reconcile the results of such monitoring with such information provided in the
previous sentence on a monthly basis and coordinate corrective adjustments to
the Servicer's and Master Servicer's records, and based on such reconciled and
corrected information, the Master Servicer shall provide such information to the
Securities Administrator as shall be necessary in order for it to prepare the
statements specified in Section 7.03 of the Indenture, and prepare any other
information and statements required to be forwarded by the Master Servicer
hereunder. The Master Servicer shall reconcile the results of its Mortgage Loan
monitoring with the actual remittances of the Servicer pursuant to the Servicing
Agreement.
The Indenture Trustee shall furnish the Servicer and the Master Servicer
with any powers of attorney and other documents in form satisfactory to it
necessary or appropriate to enable the Servicer and the Master Servicer to
service and administer the related Mortgage Loans and REO
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Property. The Indenture Trustee shall not be liable for the Servicer's or the
Master Servicer's use or misuse of such powers of attorney.
The Indenture Trustee shall provide access to the records and documentation
in possession of the Indenture Trustee regarding the related Mortgage Loans and
REO Property and the servicing thereof to the Noteholders, the FDIC, and the
supervisory agents and examiners of the FDIC, such access being afforded only
upon reasonable prior written request and during normal business hours at the
office of the Indenture Trustee; provided, however, that, unless otherwise
required by law, the Indenture Trustee shall not be required to provide access
to such records and documentation to the Noteholders if the provision thereof
would violate the legal right to privacy of any Mortgagor. The Indenture Trustee
shall allow representatives of the above entities to photocopy any of the
records and documentation and shall provide equipment for that purpose at a
charge that covers the Indenture Trustee's actual costs.
The Indenture Trustee shall execute and deliver to the Servicer or the
Master Servicer, as applicable based on the requesting party, any court
pleadings, requests for trustee's sale or other documents necessary or
reasonably desirable to (i) effect the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) take any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.02. Monitoring of Servicer.
(a) The Master Servicer shall be responsible for reporting to the
Issuing Entity, the Indenture Trustee, the Seller and the Depositor the
compliance by the Servicer with its duties under the Servicing Agreement.
In the review of the Servicer's activities, the Master Servicer may rely
upon an officer's certificate of the Servicer (or similar document signed
by an officer of the Servicer) with regard to the Servicer's compliance
with the terms of the Servicing Agreement. In the event that the Master
Servicer, in its judgment, determines that the Servicer should be
terminated in accordance with the Servicing Agreement, or that a notice
should be sent pursuant to the Servicing Agreement with respect to the
occurrence of an event that, unless cured, would constitute grounds for
such termination, the Master Servicer shall notify the Depositor and the
Indenture Trustee thereof in writing. Pursuant to its receipt of such
written notification from the Master Servicer, the Indenture Trustee shall
issue such notice of termination to the Servicer or take such other action
as it deems appropriate.
(b) The Master Servicer, for the benefit of the Issuing Entity, the
Indenture Trustee and the Noteholders, shall enforce the obligations of the
Servicer under the Servicing Agreement, and shall, in the event that the
Servicer fails to perform its obligations in accordance with the Servicing
Agreement, subject to the preceding paragraph, the Master Servicer shall
notify the Indenture Trustee in writing of such failure. Pursuant to its
receipt of such notification from the Master Servicer, the Indenture
Trustee shall terminate the rights and obligations of the Servicer under
the Servicing Agreement and enter in to a new Servicing Agreement with a
successor Servicer selected by the Indenture Trustee; provided, however, it
is understood and acknowledged by the parties hereto that there will be a
period of transition (not to exceed 90 days) before the actual servicing
functions can be fully transferred to such
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successor Servicer. In either event, such enforcement, including, without
limitation, the legal prosecution of claims, termination of the Servicing
Agreement and the pursuit of other appropriate remedies, shall be in such
form and carried out to such an extent and at such time as the Indenture
Trustee, in its good faith business judgment, would require were it the
owner of the related Mortgage Loans. The Indenture Trustee shall pay the
costs of such enforcement at its own expense, subject to its right to be
reimbursed for such costs from the Master Servicer Collection Account
pursuant to Section 3.02(c) and provided that the Indenture Trustee shall
not be required to prosecute or defend any legal action except to the
extent that the Indenture Trustee shall have received reasonable indemnity
for its costs and expenses in pursuing such action. Nothing herein shall
impose any obligation on the part of the Indenture Trustee to assume or
succeed to the duties or obligations of the Servicer or the Master
Servicer.
(c) In the event that the Servicer is terminated, to the extent that
the costs and expenses of the Indenture Trustee related to any termination
of the Servicer, or the enforcement or prosecution of related claims,
rights or remedies, or the appointment of a successor Servicer (including,
without limitation, (i) all legal costs and expenses and all due diligence
costs and expenses associated with an evaluation of the potential
termination of the Servicer as a result of an event of default by the
Servicer and (ii) all costs and expenses associated with the complete
transfer of servicing, including all servicing files and all servicing data
and the completion, correction or manipulation of such servicing data as
may be required by the successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
Servicer to service the Mortgage Loans in accordance with the Servicing
Agreement) are not fully and timely reimbursed by the Servicer after such
termination, the Indenture Trustee shall be entitled to reimbursement of
such costs and expenses from the Master Servicer Collection Account (which
the Master Servicer hereby agrees to pay to the Indenture Trustee from the
Master Servicer Collection Account upon demand) or, to the extent not paid
from such account, the Indenture Trustee shall be entitled to reimburse
itself for such costs and expenses from the Payment Account.
(d) The Master Servicer shall require the Servicer to comply with the
remittance requirements and other obligations set forth in the Servicing
Agreement.
Section 3.03. Fidelity Bond.
The Master Servicer, at its expense, shall maintain in effect a blanket
fidelity bond and an errors and omissions insurance policy, affording coverage
with respect to all directors, officers, employees and other Persons acting on
such Master Servicer's behalf, and covering errors and omissions in the
performance of the Master Servicer's obligations hereunder. The errors and
omissions insurance policy and the fidelity bond shall be in such form and
amount generally acceptable for entities serving as master servicers or
trustees.
Section 3.04. Power to Act; Procedures.
The Master Servicer shall master service the Mortgage Loans and shall have
full power and authority to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the
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power and authority (i) to execute and deliver, on behalf of the Issuing Entity,
Noteholders and the Indenture Trustee, customary consents or waivers and other
instruments and documents, (ii) to consent to transfers of any Mortgaged
Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to
collect any Insurance Proceeds and Liquidation Proceeds, and (iv) to effectuate
foreclosure or other conversion of the ownership of the Mortgaged Property
securing any Mortgage Loan, in each case, in accordance with the provisions of
this Agreement and the Servicing Agreement, as applicable. The Indenture Trustee
shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any powers of attorney empowering the Master Servicer or the
Servicer to execute and deliver instruments of satisfaction or cancellation, or
of partial or full release or discharge, and to foreclose upon or otherwise
liquidate Mortgaged Property, and to appeal, prosecute or defend in any court
action relating to the Mortgage Loans or the Mortgaged Property, in accordance
with the Servicing Agreement and this Agreement, and the Indenture Trustee shall
execute and deliver such other documents, as the Master Servicer may request, to
enable the Master Servicer to master service and administer the Mortgage Loans
and carry out its duties hereunder, in each case in accordance with Accepted
Master Servicing Practices (and the Indenture Trustee shall have no liability
for use or misuse of any such powers of attorney by the Master Servicer or the
Servicer). If the Master Servicer or the Indenture Trustee has been advised that
it is likely that the laws of the state in which action is to be taken prohibit
such action if taken in the name of the Indenture Trustee or that the Indenture
Trustee would be adversely affected under the "doing business" or tax laws of
such state if such action is taken in its name, the Master Servicer shall join
with the Indenture Trustee in the appointment of a co-trustee pursuant to
Section 6.11 of the Indenture. In the performance of its duties hereunder, the
Master Servicer shall be an independent contractor and shall not, except in
those instances where it is taking action in the name of the Issuing Entity or
the Indenture Trustee, be deemed to be the agent of the Issuing Entity or the
Indenture Trustee.
Section 3.05. Due-on-Sale Clauses; Assumption Agreements.
To the extent provided in the Servicing Agreement, to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicer to enforce such clauses in accordance with the Servicing Agreement.
If applicable law prohibits the enforcement of a due-on-sale clause or such
clause is otherwise not enforced in accordance with the Servicing Agreement,
and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may be
released from liability in accordance with the Servicing Agreement.
Section 3.06. Release of Mortgage Files.
(a) Upon becoming aware of the payment in full of any Mortgage Loan,
or the receipt by the Servicer of a notification that payment in full has
been escrowed in a manner customary for such purposes for payment to
Noteholders on the next Payment Date, the Servicer will, if required under
the Servicing Agreement, or the Master Servicer may promptly furnish to the
Indenture Trustee two copies of a certification substantially in the form
of Exhibit B hereto signed by a Servicing Officer or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer (which certification shall include a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Collection Account
maintained by such Servicer pursuant to the Servicing Agreement have been
so deposited) and shall request that
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the Indenture Trustee deliver or cause the Custodian to deliver to such
Servicer the related Mortgage File. Upon receipt of such certification and
request, the Indenture Trustee shall promptly release or cause the
Custodian to release the related Mortgage File to the Servicer and the
Indenture Trustee shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, the Servicer is authorized,
to give, as agent for the Indenture Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as
the case may be, shall be delivered to the Person or Persons entitled
thereto against receipt therefor of such payment, it being understood and
agreed that no expenses incurred in connection with such instrument of
satisfaction or assignment, as the case may be, shall be chargeable to the
Collection Account.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with the Servicing
Agreement, the Indenture Trustee shall execute such documents as shall be
prepared and furnished to the Indenture Trustee by the Servicer or the
Master Servicer (in form reasonably acceptable to the Indenture Trustee)
and as are necessary to the prosecution of any such proceedings. The
Indenture Trustee shall, upon the request of the Servicer or the Master
Servicer, and delivery to the Indenture Trustee, of two copies of a request
for release signed by a Servicing Officer substantially in the form of
Exhibit B (or in a mutually agreeable electronic format which will, in lieu
of a signature on its face, originate from a Servicing Officer), release or
cause the Custodian to release the related Mortgage File held in its or the
Custodian's possession or control to the Servicer or the Master Servicer,
as applicable. The Servicer or the Master Servicer shall be obligated to
return the Mortgage File to the Indenture Trustee or the Custodian when the
need therefor by the Servicer or the Master Servicer, as it reasonably
determines, no longer exists unless the Mortgage Loan shall be liquidated,
in which case, upon receipt of a certificate of a Servicing Officer similar
to that hereinabove specified, the Mortgage File shall be released by the
Indenture Trustee or the Custodian to the Servicer or the Master Servicer.
Section 3.07. Documents, Records and Funds in Possession of Master Servicer
To Be Held for the Issuing Entity and the Indenture Trustee.
(a) The Master Servicer shall transmit and the Servicer (to the extent
required by the Servicing Agreement) shall transmit to the Indenture
Trustee such documents and instruments coming into the possession of the
Master Servicer or the Servicer from time to time as are required by the
terms hereof, or in the case of the Servicer, the Servicing Agreement, to
be delivered to the Indenture Trustee. Any funds received by the Master
Servicer or by the Servicer in respect of any Mortgage Loan or which
otherwise are collected by the Master Servicer or by the Servicer as
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan
shall be held for the benefit of the Issuing Entity and the Indenture
Trustee subject to the Master Servicer's right to retain or withdraw from
the Master Servicer Collection Account the Master Servicing Compensation
and other amounts provided in this Agreement and the right of the Servicer
to retain its Servicing Fee and other amounts as provided in the Servicing
Agreement. The Master Servicer shall, and (to the extent provided in the
Servicing Agreement) shall cause the Servicer to, provide access to
information and documentation regarding the Mortgage Loans to the Issuing
Entity, the Indenture Trustee, and
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their respective agents and accountants at any time upon reasonable request
and during normal business hours, and to Noteholders that are savings and
loan associations, banks or insurance companies, the Office of Thrift
Supervision, the FDIC and the supervisory agents and examiners of such
Office and Corporation or examiners of any other federal or state banking
or insurance regulatory authority if so required by applicable regulations
of the Office of Thrift Supervision or other regulatory authority, such
access to be afforded without charge but only upon reasonable request in
writing and during normal business hours at the offices of the Master
Servicer designated by it. In fulfilling such a request the Master Servicer
shall not be responsible for determining the sufficiency of such
information.
(b) All Mortgage Files and funds collected or held by, or under the
control of, the Master Servicer, in respect of any Mortgage Loans, whether
from the collection of principal and interest payments or from Liquidation
Proceeds or Insurance Proceeds, shall be held by the Master Servicer for
and on behalf of the Issuing Entity, the Indenture Trustee and the
Noteholders and shall be and remain the sole and exclusive property of the
Issuing Entity, subject to the pledge to the Indenture Trustee; provided,
however, that the Master Servicer and the Servicer shall be entitled to
setoff against, and deduct from, any such funds any amounts that are
properly due and payable to the Master Servicer or the Servicer under this
Agreement or the Servicing Agreement.
Section 3.08. Standard Hazard Insurance and Flood Insurance Policies.
(a) For each Mortgage Loan, the Master Servicer shall enforce any
obligation of the Servicer under the Servicing Agreement to maintain or
cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
Servicing Agreement. It is understood and agreed that such insurance shall
be with insurers meeting the eligibility requirements set forth in the
Servicing Agreement and that no earthquake or other additional insurance is
to be required of any Mortgagor or to be maintained on property acquired in
respect of a defaulted loan, other than pursuant to such applicable laws
and regulations as shall at any time be in force and as shall require such
additional insurance.
(b) Pursuant to Section 4.01 and 4.02, any amounts collected by the
Servicer or the Master Servicer, under any insurance policies (other than
amounts to be applied to the restoration or repair of the property subject
to the related Mortgage or released to the Mortgagor in accordance with the
Servicing Agreement) shall be deposited into the Master Servicer Collection
Account, subject to withdrawal pursuant to Section 4.02 and 4.03. Any cost
incurred by the Master Servicer or the Servicer in maintaining any such
insurance if the Mortgagor defaults in its obligation to do so shall be
added to the amount owing under the Mortgage Loan where the terms of the
Mortgage Loan so permit; provided, however, that the addition of any such
cost shall not be taken into account for purposes of calculating the
distributions to be made to Noteholders and shall be recoverable by the
Master Servicer or the Servicer pursuant to Section 4.02 and 4.03.
Section 3.09. Presentment of Claims and Collection of Proceeds.
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The Master Servicer shall (to the extent provided in the Servicing
Agreement) cause the Servicer to prepare and present on behalf of the Issuing
Entity, the Indenture Trustee and the Noteholders all claims under the Insurance
Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured's claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to the Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in the
Master Servicer Collection Account upon receipt, except that any amounts
realized that are to be applied to the repair or restoration of the related
Mortgaged Property as a condition precedent to the presentation of claims on the
related Mortgage Loan to the insurer under any applicable Insurance Policy need
not be so deposited (or remitted).
Section 3.10. Maintenance of the Primary Mortgage Insurance Policies.
(a) The Master Servicer shall not take, or permit the Servicer (to the
extent such action is prohibited under the Servicing Agreement) to take,
any action that would result in noncoverage under any applicable Primary
Mortgage Insurance Policy of any loss which, but for the actions of the
Master Servicer or the Servicer, would have been covered thereunder. The
Master Servicer shall use its best reasonable efforts to cause the Servicer
(to the extent required under the Servicing Agreement) to keep in force and
effect (to the extent that the Mortgage Loan requires the Mortgagor to
maintain such insurance), primary mortgage insurance applicable to each
Mortgage Loan in accordance with the provisions of this Agreement and the
Servicing Agreement, as applicable. The Master Servicer shall not, and
shall not permit the Servicer (to the extent required under the Servicing
Agreement) to, cancel or refuse to renew any such Primary Mortgage
Insurance Policy that is in effect at the date of the initial issuance of
the Mortgage Note and is required to be kept in force hereunder except in
accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable.
(b) The Master Servicer agrees to cause the Servicer (to the extent
required under the Servicing Agreement) to present, on behalf of the
Issuing Entity, the Indenture Trustee and the Noteholders, claims to the
insurer under any Primary Mortgage Insurance Policies and, in this regard,
to take such reasonable action as shall be necessary to permit recovery
under any Primary Mortgage Insurance Policies respecting defaulted Mortgage
Loans. Pursuant to Section 4.01 and 4.02, any amounts collected by the
Master Servicer or the Servicer under any Primary Mortgage Insurance
Policies shall be deposited in the Master Servicer Collection Account,
subject to withdrawal pursuant to Sections 4.02 and 4.03.
Section 3.11. Indenture Trustee to Retain Possession of Certain Insurance
Policies and Documents.
The Indenture Trustee shall retain or shall cause the Custodian to retain
possession and custody of the originals (to the extent available) of any Primary
Mortgage Insurance Policies, or certificate of insurance if applicable, and any
certificates of renewal as to the foregoing as may be issued from time to time
as contemplated by this Agreement. Until all amounts distributable in respect of
the Notes have been distributed in full and the Indenture has been satisfied and
discharged in accordance with Section 4.10 of the Indenture, the Indenture
Trustee shall also
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retain, or shall cause the Custodian to retain, possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions of this
Agreement. The Master Servicer shall promptly deliver or cause to be delivered
to the Indenture Trustee upon the execution or receipt thereof the originals of
any Primary Mortgage Insurance Policies, any certificates of renewal, and such
other documents or instruments that constitute portions of the Mortgage File
that come into the possession of the Master Servicer from time to time.
Section 3.12. Realization Upon Defaulted Mortgage Loans.
For each Mortgage Loan that comes into and continues in default and as to
which no satisfactory arrangements can be made for collection of delinquent
payments, the Majority Certificateholder shall have the right to direct the
Servicer or give consent to a request by the Servicer to foreclose upon,
repossess or otherwise comparably convert the ownership of Mortgaged Properties
securing such Mortgage Loans, all in accordance with the Servicing Agreement.
The Servicer shall be responsible for all costs and expenses incurred by it in
any such proceedings or sale; provided, however, that such costs and expenses
will be recoverable as servicing advances by the Servicer as contemplated in
Section 4.05. The Master Servicer shall have the right to enforce the Servicer's
obligation to foreclose upon, repossess or otherwise comparably convert the
ownership of Mortgaged Properties securing such Mortgage Loans, all in
accordance with the Servicing Agreement.
In addition, the Servicer may also, in its discretion, as an alternative to
foreclosure, sell defaulted Mortgage Loans at fair market value to third
parties, if the Servicer reasonably believes that such sale would maximize
proceeds to the Noteholders in the aggregate (on a present value basis) with
respect to that Mortgage Loan.
Section 3.13. Compensation for the Master Servicer.
On each Payment Date the Master Servicer will be entitled to all income and
gain realized from any investment of funds in the Master Servicer Collection
Account and the Payment Account, pursuant to Article IV, for the performance of
its activities hereunder (the "Master Servicer Compensation"). Servicing
compensation in the form of assumption fees, if any, late payment charges, as
collected, if any, or otherwise (including any prepayment premium or penalty)
shall be retained by the Servicer and shall not be deposited in the Collection
Account. The Master Servicer shall be required to pay all expenses incurred by
it in connection with its activities hereunder and the fees of the Indenture
Trustee and any Custodian as agreed on by each such party and the Master
Servicer and shall not be entitled to reimbursement therefor except as provided
in this Agreement.
Section 3.14. REO Property.
(a) In the event the Trust Estate acquires ownership of any REO
Property in respect of any related Mortgage Loan, the deed or certificate
of sale shall be issued to the Indenture Trustee, or to its nominee, on
behalf of the Noteholders. The Majority Certificateholder shall have the
right to direct the Servicer or give consent to a request by the Servicer
to sell any REO Property as expeditiously as possible and in accordance
with the provisions of the Servicing Agreement. Pursuant to its efforts to
sell such REO Property, the
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Majority Certificateholder shall direct the Servicer to protect and
conserve such REO Property in the manner and to the extent required by the
Servicing Agreement. The Master Servicer shall have the right to enforce
the Servicer's obligation to sell any REO property in accordance with the
Servicing Agreement.
(b) The Master Servicer shall, to the extent required by the Servicing
Agreement, cause the Servicer to deposit all funds collected and received
in connection with the operation of any REO Property in the Collection
Account.
(c) The Master Servicer and the Servicer, upon the final disposition
of any REO Property, shall be entitled to reimbursement for any related
unreimbursed Monthly Advances and other unreimbursed advances as well as
any unpaid Servicing Fees from Liquidation Proceeds received in connection
with the final disposition of such REO Property; provided, that any such
unreimbursed Monthly Advances as well as any unpaid Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any net rental income or other net amounts derived from such REO Property.
(d) To the extent provided in the Servicing Agreement, the Liquidation
Proceeds from the final disposition of the REO Property, net of any payment
to the Master Servicer and the Servicer as provided above shall be
deposited in the Collection Account on or prior to the Determination Date
in the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the
Master Servicer Collection Account on the next succeeding Servicer
Remittance Date.
Section 3.15. Annual Statement as to Compliance.
Not later than March 1 of each calendar year (other than the calendar year
during which the Closing Date occurs), the Servicer shall deliver (or otherwise
make available) and shall cause any Servicing Function Participant engaged by it
to deliver to the Master Servicer, the Securities Administrator and the
Depositor an Officer's Certificate in the form attached hereto as Exhibit K
stating, as to each signatory thereof, that (i) a review of the activities of
such signatory during the preceding calendar year, or portion thereof, and of
the performance of such signatory under the Servicing Agreement or such other
applicable agreement in the case of a Servicing Function Participant has been
made under such officer's supervision, and (ii) to the best of such officer's
knowledge, based on such review, such signatory has fulfilled all its
obligations under this Agreement, the Servicing Agreement or such other
applicable agreement in all material respects throughout such year or a portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof.
The Master Servicer and the Securities Administrator shall deliver (or
otherwise make available) (and the Master Servicer and Securities Administrator
shall cause any Servicing Function Participant engaged by it to deliver) to the
Depositor and the Securities Administrator on or before March 1 (with a
ten-calendar day cure period) of each year, commencing in March 2008, an
Officer's Certificate stating, as to the signer thereof, that (A) a review of
such party's activities during the preceding calendar year or portion thereof
and of such party's performance under this Agreement, or such other applicable
agreement in the case of a Servicing Function
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Participant, has been made under such officer's supervision and (B) to the best
of such officer's knowledge, based on such review, such party has fulfilled all
its obligations under this Agreement, or such other applicable agreement in the
case of a Servicing Function Participant, in all material respects throughout
such year or portion thereof, or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known to
such officer and the nature and status thereof.
The Master Servicer shall include all annual statements of compliance
received by it from the Servicer with its own annual statement of compliance to
be submitted to the Securities Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under or resigns pursuant to the terms of this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide, an annual
statement of compliance pursuant to this Section 3.15 or to such applicable
agreement, as the case may be, notwithstanding any such termination, assignment
or resignation.
Section 3.16. Reports on Assessment of Compliance and Attestation.
(a) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) the Servicer at its own expense,
shall furnish, and shall cause any Servicing Function Participant engaged by it
to furnish (unless in the case of a Subcontractor, the Servicer has notified the
Depositor and the Master Servicer in writing that such compliance statement is
not required for the Subcontractor) to the Master Servicer, the Securities
Administrator and the Depositor an officer's assessment of its compliance with
the Relevant Servicing Criteria during the preceding calendar year as required
by Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation AB
(the "Assessment of Compliance"), which assessment shall contain (A) a statement
by such party of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such party used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party's assessment of compliance with the Relevant Servicing Criteria as of and
for the fiscal year covered by the Form 10-K required to be filed pursuant to
Section 3.17, including, if there has been any material instance of
noncompliance with the Relevant Servicing Criteria, a discussion of each such
failure and the nature and status thereof, which assessment shall be based on
the activities it performs with respect to asset-backed securities transactions
taken as a whole involving such party that are backed by the same asset type as
the Mortgage Loans, and (D) a statement that a registered public accounting firm
has issued an attestation report on such party's assessment of compliance with
the Relevant Servicing Criteria as of and for such period.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2008, the Master Servicer, the Securities Administrator and the
Custodian each at its own expense, shall furnish or otherwise make available,
and each such party shall cause any Servicing Function Participant engaged by it
to furnish, each at its own expense, to the Securities Administrator and the
Depositor, a report on an assessment of compliance with the Relevant Servicing
Criteria that contains (A) a statement by such party of its responsibility for
assessing compliance with the Relevant Servicing Criteria, (B) a statement that
such party used the
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Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party's assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to be
filed pursuant to Sections 3.17(h), (i), (j) and (k), including, if there has
been any material instance of noncompliance with the Relevant Servicing
Criteria, a discussion of each such failure and the nature and status thereof,
and (D) a statement that a registered public accounting firm has issued an
attestation report on such party's assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
No later than the end of each fiscal year for the Issuing Entity for which
a 10-K is required to be filed, the Master Servicer and the Custodian shall each
forward to the Securities Administrator and the Depositor the name of each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared by
such Servicing Function Participant (provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as the
Master Servicer and the Securities Administrator are the same Person). When the
Master Servicer, and the Securities Administrator (or any Servicing Function
Participant engaged by them) submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment and
attestation pursuant to this Section 3.16 of each Servicing Function Participant
engaged by it.
Promptly after receipt of each report on assessment of compliance, (i) the
Depositor shall review each such report and, if applicable, consult with the
Servicer, the Master Servicer, the Securities Administrator and any Servicing
Function Participant engaged by any such party as to the nature of any material
instance of noncompliance with the Relevant Servicing Criteria by the Servicer
by each such party, and (ii) the Securities Administrator shall confirm that the
assessments individually address the Relevant Servicing Criteria for each party
as set forth on Exhibit J or any similar exhibit set forth in the Servicing
Agreement in respect of the Servicer and notify the Depositor of any exceptions.
The Master Servicer shall include all annual reports on assessment of
compliance received by it from the Servicer with its own assessment of
compliance to be submitted to the Securities Administrator pursuant to this
Section.
In the event the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by any such party is terminated, assigns
its rights and obligations under or resigns pursuant to the terms of this
Agreement, or any other applicable agreement, as the case may be, such party
shall provide, an assessment of compliance pursuant to this Section 3.16,
coupled with an attestation as required in this Section 3.16, or such applicable
agreement notwithstanding any such termination, assignment or resignation.
(b) Not later than March 1 of each calendar year (other than the calendar
year during which the Closing Date occurs) the Servicer at its own expense,
shall cause, and shall cause any Servicing Function Participant engaged by it to
cause (unless in the case of a Subcontractor, the Servicer has notified the
Depositor and the Master Servicer in writing that such report is not required
for the Subcontractor) a nationally or regionally recognized firm of independent
registered public accountants (who may also render other services to the
Servicer, the Master Servicer or any affiliate thereof) which is a member of the
American Institute of Certified Public
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Accountants to furnish a report (the "Accountant's Attestation") to the Master
Servicer, the Securities Administrator and the Depositor to the effect that (i)
it has obtained a representation regarding certain matters from the management
of such party, which includes an assertion that such party has complied with the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued or
adopted by the Public Company Accounting Oversight Board, it is expressing an
opinion as to whether such party's compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party's assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language. Such Accountant's
Attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act.
By March 1 (with a ten-calendar day cure period) of each year, commencing
in March 2008, the Master Servicer, the Securities Administrator and the
Custodian, each at its own expense, shall cause, and each such party shall cause
any Servicing Function Participant engaged by it to cause, each at its own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Trustee, the Securities Administrator, or
such other Servicing Function Participants, as the case may be) and that is a
member of the American Institute of Certified Public Accountants to furnish an
attestation report to the Securities Administrator and the Depositor, to the
effect that (i) it has obtained a representation regarding certain matters from
the management of such party, which includes an assertion that such party has
complied with the Relevant Servicing Criteria, and (ii) on the basis of an
examination conducted by such firm in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting Oversight Board,
it is expressing an opinion as to whether such party's compliance with the
Relevant Servicing Criteria was fairly stated in all material respects, or it
cannot express an overall opinion regarding such party's assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must be
available for general use and not contain restricted use language.
(c) Promptly after receipt of each assessment of compliance and attestation
report, the Securities Administrator shall confirm that each assessment
submitted pursuant to Section 3.16(a) is coupled with an attestation meeting the
requirements of Section 3.16(b) and notify the Depositor of any exceptions.
The Master Servicer shall include each such attestation furnished to it by
the Servicer with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
In the event the Master Servicer, the Securities Administrator, the
Custodian, the Servicer or any Servicing Function Participant engaged by any
such party, is terminated, assigns its rights and duties under, or resigns
pursuant to the terms of, this Agreement, or any applicable Custodial Agreement,
Servicing Agreement or sub-servicing agreement, as the case may be, such party
shall cause a registered public accounting firm to provide an attestation
pursuant to this Section
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3.16, or such other applicable agreement, notwithstanding any such termination,
assignment or resignation.
Section 3.17. Periodic Filings.
(a) Within four (4) Business Days after the occurrence of an event
requiring disclosure on Form 8-K (each such event, a "Reportable Event"),
and if requested by the Depositor, the Securities Administrator shall
prepare and file on behalf of the Issuing Entity a Form 8-K, as required by
the Exchange Act, provided that the Depositor shall file the initial Form
8-K in connection with the issuance of the Notes. Any disclosure or
information related to a Reportable Event or that is otherwise required to
be included on Form 8-K (other than the initial Form 8-K) ("Form 8-K
Disclosure Information") shall be reported by the parties set forth on
Exhibit I-3 to the Depositor and the Securities Administrator and directed
and approved by the Depositor, and the Securities Administrator will have
no duty or liability for any failure hereunder to determine or prepare any
Form 8-K Disclosure Information or any Form 8-K except as set forth in the
next paragraph.
(b) For so long as the Issuing Entity is subject to the reporting
requirements of the Exchange Act, following the occurrence of a Reportable
Event (A) each party listed on Exhibit I-3 hereto shall use commercially
reasonable best efforts to provide immediate notice to the Master Servicer,
the Securities Administrator and the Depositor, by fax and by phone or by
e-mail and by phone, (B) each such party shall be required to provide to
the Securities Administrator and the Depositor, to the extent known, in
XXXXX-compatible format or in such other format as agreed upon by the
Securities Administrator and such party, the form and substance of any Form
8-K Disclosure Information if applicable, together with the form set forth
on Exhibit H (the "Additional Disclosure Notification") by the close of
business New York City time on the 2nd Business Day following the
occurrence of such Reportable Event and (C) the Depositor, shall approve,
as to form and substance, or disapprove, as the case may be, the inclusion
of the Form 8-K Disclosure Information on Form 8-K. The Securities
Administrator has no duty under this Agreement to monitor or enforce the
performance by the parties listed on Exhibit I-3 of their duties under this
paragraph or proactively solicit or procure from such parties any Form 8-K
Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
(c) After preparing the Form 8-K, the Securities Administrator shall,
upon request, forward electronically a copy of the Form 8-K to the
Depositor. Promptly, but no later than the close of business on the third
Business Day after the Reportable Event, the Depositor shall notify the
Securities Administrator in writing (which may be furnished electronically)
of any changes to or approval of such Form 8-K. In the absence of receipt
of any written changes or approval, or if the Depositor does not request a
copy of a Form 8-K, the Securities Administrator shall be entitled to
assume that such Form 8-K is in final form and the Securities Administrator
may proceed with the process for execution and filing of the Form 8-K. A
duly authorized representative of the Master Servicer shall sign each Form
8-K. If a Form 8-K cannot be filed on time or if a previously filed Form
8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 3.18(n).
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(d) Promptly (but no later than one Business Day) after filing with
the Commission, the Securities Administrator will make available on its
internet website a final executed copy of each Form 8-K prepared and filed
by the Securities Administrator. The parties to this Agreement acknowledge
that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.17 related to the timely
preparation, execution and filing of Form 8-K is contingent upon the other
parties hereto strictly observing all applicable deadlines in the
performance of their duties under this Section 3.17. The Depositor
acknowledges that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.17 related to the timely
preparation, execution and filing of Form 8-K is also contingent upon the
Servicer, the Custodian and any Servicing Function Participant strictly
observing deadlines no later than those set forth in this paragraph that
are applicable to the parties to this Agreement in the delivery to the
Securities Administrator of any necessary Form 8-K Disclosure Information
pursuant to the Servicing Agreement, the Custodial Agreement or any other
applicable agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage or
claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 8-K, where such failure results from
the Securities Administrator's inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto or the
Servicer, Custodian or Servicing Function Participant needed to prepare,
arrange for execution or file such Form 8-K.
(e) Within fifteen (15) days after each Distribution Date (subject to
permitted extensions under the Exchange Act), the Securities Administrator
shall, on behalf of the Issuing Entity and in accordance with industry
standards, prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (XXXXX), a Form 10-D with a copy of the
Monthly Statement for such Distribution Date as an exhibit thereto. Any
disclosure in addition to the Monthly Statement that is required to be
included on Form 10-D ("Additional Form 10-D Disclosure") shall be reported
by the parties set forth on Exhibit I-1 to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph, and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form 10-D Disclosure except as set forth in the next paragraph.
(f) As set forth in Exhibit I-1 hereto, for so long as the Issuing
Entity is subject to the reporting requirements of the Exchange Act, within
five (5) calendar days after the related Distribution Date (i) each party
listed on Exhibit I-1 hereto shall be required to provide to the Depositor
and the Securities Administrator, to the extent known, in XXXXX-compatible
format or in such other format as agreed upon by the Securities
Administrator and such party, the form and substance of any Additional Form
10-D Disclosure if applicable together with an Additional Disclosure
Notification, and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Securities Administrator
has no duty under this Agreement to monitor or enforce the performance by
the parties listed on Exhibit I-1 of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses incurred by the Securities Administrator in
connection with including any Additional Form 10-D Disclosure on Form 10-D
pursuant to this paragraph.
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(g) After preparing the Form 10-D, the Securities Administrator shall,
upon request, forward electronically a copy of the Form 10-D to the
Depositor (provided that such Form 10-D includes any Additional Form 10-D
Disclosure). Within two Business Days after receipt of such copy, but no
later than the 12th calendar day after the Distribution Date, the Depositor
shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-D.
In the absence of receipt of any written changes or approval, or if the
Depositor does not request a copy of a Form 10-D, the Securities
Administrator shall be entitled to assume that such Form 10-D is in final
form and the Securities Administrator may proceed with the process for
execution and filing of the Form 10-D. A duly authorized representative of
the Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be
filed on time or if a previously filed Form 10-D needs to be amended, the
Securities Administrator will follow the procedures set forth in Section
3.17(n). Promptly (but not later than one Business Day) after filing with
the Commission, the Securities Administrator will make available on its
internet website a final executed copy of each Form 10-D prepared and filed
by the Securities Administrator. Form 10-D requires the registrant to
indicate (by checking "yes" or "no") that it "(1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the
preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days." The Depositor hereby represents to the
Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day
after the related Distribution Date with respect to the filing of a report
on Form 10-D, if the answer to the questions should be "no." The Securities
Administrator shall be entitled to rely on such representations in
preparing, executing and/or filing any such Form 10-D. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of its respective duties under this Section 3.17
related to the timely preparation, execution and filing of Form 10-D is
contingent upon the other parties hereto strictly observing all applicable
deadlines in the performance of their duties under this Section 3.17. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.17 related to
the timely preparation, execution and filing of Form 10-D is also
contingent upon the Servicer, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in
this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Additional Form
10-D Disclosure pursuant to the Servicing Agreement, the Custodial
Agreement or any other applicable agreement. Neither the Master Servicer
nor the Securities Administrator will have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file such Form 10-D resulting from
the Securities Administrator's inability or failure to obtain or receive
any information needed to prepare, arrange for execution or file such Form
10-D on a timely basis.
(h) On or prior to the 90th calendar day after the end of the fiscal
year for the Issuing Entity or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline") (it being understood that the
fiscal year for the Issuing Entity ends on December 31st of each year)
commencing in March 2008, the Securities Administrator shall, on behalf of
the Issuing Entity and in accordance with industry standards, prepare and
file with the
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Commission via XXXXX a Form 10-K with respect to the Issuing Entity. Such
Form 10-K shall include the following items, in each case, as applicable,
to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, the
Servicing Agreement and Custodial Agreement: (i) an annual compliance
statement for the Master Servicer, the Servicer, the Securities
Administrator and any Servicing Function Participant engaged by any such
party (together with the Custodian, each a "Reporting Servicer"), as
described in Section 3.15 of this Agreement, the Servicing Agreement and
the Custodial Agreement; provided, however, that the Securities
Administrator, at its discretion, may omit from the Form 10-K any annual
compliance statement that is not required to be filed with such Form 10-K
pursuant to Regulation AB; (ii)(A) the annual reports on assessment of
compliance with Servicing Criteria for each Reporting Servicer (unless the
Depositor has determined that such compliance statement is not required by
Regulation AB), as described in Section 3.17 of this Agreement, the
Servicing Agreement and the Custodial Agreement, and (B) if any Reporting
Servicer's report on assessment of compliance with Servicing Criteria
described in Section 3.16 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
any Reporting Servicer's report on assessment of compliance with Servicing
Criteria described in Section 3.16 of this Agreement is not included as an
exhibit to such Form 10-K, disclosure that such report is not included and
an explanation why such report is not included; provided, however, that the
Securities Administrator, at its discretion, may omit from the Form 10-K
any assessment of compliance or attestation report described in clause
(iii) below that is not required to be filed with such Form 10-K pursuant
to Regulation AB; (iii)(A) the registered public accounting firm
attestation report for each Reporting Servicer, as described in Section
3.16 of this Agreement, the Servicing Agreement and the Custodial
Agreement, and (B) if any registered public accounting firm attestation
report described under Section 3.16 of this Agreement identifies any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that
such report is not included and an explanation why such report is not
included, and (iv) a Xxxxxxxx-Xxxxx Certification in the form attached
hereto as Exhibit F, executed by the senior officer in charge of
securitizations of the Master Servicer. Any disclosure or information in
addition to (i) through (iv) above that is required to be included on Form
10-K ("Additional Form 10-K Disclosure") shall be reported by the parties
as set forth in Exhibit I-2 to the Depositor and the Securities
Administrator and directed and approved by the Depositor pursuant to the
following paragraph and the Securities Administrator will have no duty or
liability for any failure hereunder to determine or prepare any Additional
Form 10-K Disclosure except or set forth in the next paragraph.
(i) As set forth in Exhibit I-2 hereto, no later than March 1 (with a
ten calendar day cure period) of each year that the Issuing Entity is
subject to the Exchange Act reporting requirements, commencing in March
2008, (i) the parties listed on Exhibit I-2 hereto shall be required to
provide to the Depositor and the Securities Administrator, to the extent
known, in XXXXX-compatible format or in such other format as agreed upon by
the Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable together with an Additional
Disclosure Notification, and (ii) the Depositor will approve, as to form
and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure and shall forward such Additional Form 10-K
Disclosure. The Securities Administrator has no duty under this Agreement
to monitor or
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enforce the performance by the parties listed on Exhibit I-2 of their
duties under this paragraph or proactively solicit or procure from such
parties any Additional Form 10-K Disclosure Information. The Depositor will
be responsible for any reasonable fees and expenses incurred by the
Securities Administrator in connection with including any Additional Form
10-K Disclosure on Form 10-K pursuant to this paragraph.
(j) After preparing the Form 10-K, the Securities Administrator shall,
upon request, forward electronically a copy of the Form 10-K to the
Depositor. Within three Business Days after receipt of such copy, but no
later than March 25th, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any
changes to or approval of such Form 10-K. In the absence of receipt of any
written changes or approval, or if the Depositor does not request a copy of
a Form 10-K, the Securities Administrator shall be entitled to assume that
such Form 10-K is in final form and the Securities Administrator may
proceed with the process for execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing
function shall sign the Form 10-K. If a Form 10-K cannot be filed on time
or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 3.17(n).
Promptly (but no later than one Business Day) after filing with the
Commission, the Securities Administrator will make available on its
internet website a final executed copy of each Form 10-K prepared and filed
by the Securities Administrator. Form 10-K requires the registrant to
indicate (by checking "yes" or "no") that it "(1) has filed all reports
required to be filed by Section 13 or 15(d) of the Exchange Act during the
preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days." The Depositor hereby represents to the
Securities Administrator that the Depositor has filed all such required
reports during the preceding 12 months and that it has been subject to such
filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the 15th calendar day of
March in any year in which the Issuing Entity is subject to the reporting
requirements of the Exchange Act, if the answer to the questions should be
"no." The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such Form 10-D.
The parties to this Agreement acknowledge that the performance by the
Master Servicer and the Securities Administrator of its duties under this
Section 3.17 related to the timely preparation, execution and filing of
Form 10-K is contingent upon such parties (and any Servicing Function
Participant) strictly observing all applicable deadlines in the performance
of their duties under this Section 3.17, Section 3.15 and Section 3.16. The
Depositor acknowledges that the performance by the Master Servicer and the
Securities Administrator of its duties under this Section 3.17 related to
the timely preparation, execution and filing of Form 10-K is also
contingent upon the Servicer, the Custodian and any Servicing Function
Participant strictly observing deadlines no later than those set forth in
this paragraph that are applicable to the parties to this Agreement in the
delivery to the Securities Administrator of any necessary Additional Form
10-K Disclosure, any annual statement of compliance and any assessment of
compliance and attestation pursuant to the Servicing Agreement, the
Custodial Agreement or any other applicable agreement. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss, expense, damage or claim arising out of or with respect to any
failure to properly prepare, execute and/or timely file such Form 10-K
resulting from the Securities Administrator's inability or failure to
obtain or receive any information from any other party
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hereto or any Servicer, Custodian or Servicing Function Participant needed
to prepare, execute or file such Form 10-K.
(k) Each Form 10-K shall include a Xxxxxxxx-Xxxxx Certification, which
shall be in the form attached hereto as Exhibit F. The Servicer shall sign
and provide, and each of the Servicer, the Master Servicer and the
Securities Administrator shall cause any Servicing Function Participant
engaged by it to sign and provide, to the person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person") by March 1 (with a
ten day cure period) of each year in which the Issuing Entity is subject to
the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (a "Back-Up
Certification") (in the form attached hereto as Exhibit G) upon which the
Certifying Person, the entity for which the Certifying Person acts as an
officer and such entity's officers, directors and affiliates (collectively,
with the Certifying Person, the "Certification Parties") can reasonably
rely. The senior officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the
Issuing Entity. Such officer of the Certifying Person can be contacted by
e-mail at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at
000-000-0000. In the event any such party or Servicing Function Participant
engaged by any such party is terminated or resigns pursuant to the terms of
this Agreement, or any other applicable agreement, as the case may be, such
party shall provide a Back-Up Certification to the Master Servicer pursuant
to this Section 3.17 with respect to the period of time it was subject to
this Agreement or any other applicable agreement, as the case may be.
Notwithstanding the foregoing, (i) the Master Servicer and the Securities
Administrator shall not be required to deliver a Back-Up Certification to
each other if both are the same Person and the Master Servicer is the
Certifying Person and (ii) the Master Servicer shall not be obligated to
sign the Xxxxxxxx-Xxxxx Certification in the event that it does not receive
any Back-Up Certification required to be furnished to it pursuant to this
section or any Servicing Agreement or Custodial Agreement.
(l) The Securities Administrator shall have no responsibility to file
any items with the Commission other than those specified in this section
and the Master Servicer shall execute any and all Form 10-Ds, 8-Ks and
10-Ks required hereunder.
(m) On or prior to January 30 of the first year in which the
Securities Administrator is able to do so under applicable law, the
Securities Administrator shall prepare and file a Form 15 Suspension
Notification relating to the automatic suspension of reporting in respect
of the Issuing Entity under the Exchange Act.
(n) In the event that the Securities Administrator is unable to timely
file with the Commission all or any required portion of any Form 8-K, 10-D
or 10-K required to be filed by this Agreement because required disclosure
information was either not delivered to it or delivered to it after the
delivery deadlines set forth in this Agreement or for any other reason, the
Securities Administrator will promptly notify electronically the Depositor
of such inability to make a timely filing with the Commission. In the case
of Form 10-D and 10-K, the parties to this Agreement will cooperate to
prepare and file a Form 12b-25 and a 10-D/A and 10K/A, as applicable,
pursuant to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the
Securities Administrator will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the
Depositor, include such disclosure information on
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the next succeeding Form 10-D to be filed for the Issuing Entity. In the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended,
in connection with any Additional Form 10-D Disclosure (other than, in the
case of Form 10-D, for the purpose of restating any Monthly Statement),
Additional Form 10-K Disclosure or Form 8-K Disclosure Information, the
Securities Administrator will electronically notify the Depositor and such
other parties to the transaction as are affected by such amendment, and
such parties will cooperate to prepare any necessary 8-K/A, 10-D/A or
10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
shall be signed by duly authorized representative or a senior officer in
charge of master servicing, as applicable, of the Master Servicer. The
parties to this Agreement acknowledge that the performance by the Master
Servicer of its duties under this Section 3.17 related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any
amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. Neither the Master Servicer nor
the Securities Administrator shall have any liability for any loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare, execute and/or timely file any such Form 15, Form 12b-25
or any amendments to Forms 8-K, 10-D or 10-K, where such failure results
from the Securities Administrator's inability or failure to receive, on a
timely basis, any information from any other party hereto or the Servicer,
Custodian or any Servicing Function Participant needed to prepare, arrange
for execution or file such Form 15, Form 12b-25 or any amendments to Forms
8-K, 10-D or 10-K.
(o) The Depositor and the Securities Administrator agree to use their
good faith efforts to cooperate in complying with the requirements of this
Section 3.17.
(p) Each of the parties agrees to provide to the Securities
Administrator such additional information related to such party as the
Securities Administrator may reasonably request, including evidence of the
authorization of the person signing any certificate or statement, financial
information and reports, and such other information related to such party
or its performance hereunder.
(q) Any notice or notification required to be delivered by the
Securities Administrator or Master Servicer to the Depositor pursuant to
this Section 3.17, may be delivered via facsimile to (000) 000-0000, via
email to xxxx_xxxx@xx.xxx or telephonically by calling Xxxx Park at (212)
449-6380.
Section 3.18. UCC.
The Depositor shall inform the Indenture Trustee in writing of any Uniform
Commercial Code financing statements that were filed on the Closing Date in
connection with the Trust Estate with stamped recorded copies of such financing
statements to be delivered to the Indenture Trustee promptly upon receipt by the
Depositor. If directed by the Depositor in writing, the Indenture Trustee will
execute any continuation statements prepared by the Depositor and deliver them
as directed solely at the expense of the Depositor. The Depositor shall file any
financing statements or amendments thereto required by any change in the Uniform
Commercial Code.
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Section 3.19. Foreclosure Proceedings, and Optional Purchase of Delinquent
and Defaulted Mortgage Loans.
(a) The Servicer shall give written notice to the Majority
Certificateholder with respect to any Mortgage Loan which is delinquent in
payment by 90 days or more or is an REO Property. The Majority
Certificateholder shall, within three Business Days of receipt of such
notice, direct the Servicer to (1) foreclose on such Mortgage Loan or REO
Property in accordance with the procedures set forth herein or (2) sell
such Mortgage Loan or REO Property to a third-party at a price equal to
fair market value; provided, however, that if the Servicer is directed
pursuant to clause (2) above, then the Majority Certificateholder will
first have the option to purchase such Mortgage Loan or REO Property at a
price equal to the Repurchase Price. If the Majority Certificateholder does
not direct the Servicer to take action in accordance with (1) or (2) above
within 3 Business Days of receipt, then the Servicer may foreclose,
purchase or sell such Mortgage Loan or REO Property in accordance with this
Agreement and the Servicing Agreement.
(b) If at any time the Master Servicer remits to the Securities
Administrator a payment for deposit in the Payment Account covering the
amount of the Repurchase Price for a Mortgage Loan in accordance with
clause (a) above, and the Servicer provides to the Indenture Trustee a
certification signed by a Servicing Officer stating that the amount of such
payment has been deposited in the Payment Account, then the Indenture
Trustee shall execute the assignment of such Mortgage Loan to the Servicer,
without recourse, representation or warranty and the Servicer shall succeed
to all of the Indenture Trustee's right, title and interest in and to such
Mortgage Loan, and all security and documents relative thereto. Such
assignment shall be an assignment outright and not for security. The
Servicer will thereupon own such Mortgage, and all such security and
documents, free of any further obligation to the Issuing Entity, the
Indenture Trustee or the Noteholders with respect thereto.
Section 3.20. Monthly Advances.
If the Scheduled Payment on a Mortgage Loan that was due on a related Due
Date is delinquent other than as a result of application of the Relief Act and
for which the Servicer was required to make an advance pursuant to the Servicing
Agreement exceeds the amount deposited in the Master Servicer Collection Account
which will be used for an advance with respect to such Mortgage Loan, the Master
Servicer or, if the Master Servicer and the Servicer are the same entity, the
Indenture Trustee or another successor servicer will deposit in the Master
Servicer Collection Account not later than the related Payment Account Deposit
Date immediately preceding the related Payment Date an amount equal to such
deficiency, net of the Servicing Fee for such Mortgage Loan except to the extent
the Master Servicer or, if the Master Servicer and the Servicer are the same
entity, the Indenture Trustee or another successor servicer determines any such
advance to be a Nonrecoverable Advance. Subject to the foregoing, the Master
Servicer or, if the Master Servicer and the Servicer are the same entity, the
Indenture Trustee or another successor servicer shall continue to make such
advances through the date that the Servicer is required to do so under the
Servicing Agreement. If the Master Servicer or, if the Master Servicer and the
Servicer are the same entity, the Indenture Trustee or another successor
servicer deems an advance to be a Nonrecoverable Advance, on the Payment Account
Deposit Date, the Master Servicer or, if the Master Servicer and the Servicer
are the same entity, the
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Indenture Trustee or another successor servicer shall present an Officer's
Certificate to the Securities Administrator (i) stating that the Master Servicer
or, if the Master Servicer and the Servicer are the same entity, the Indenture
Trustee or another successor servicer elects not to make a Monthly Advance in a
stated amount and (ii) detailing the reason it deems the advance to be a
Nonrecoverable Advance.
Section 3.21. Compensating Interest Payments.
The Master Servicer shall deposit in the Master Servicer Collection Account
not later than each Payment Account Deposit Date an amount equal to the lesser
of (i) the sum of the aggregate amounts required to be paid by the Servicer
under the Servicing Agreement with respect to subclauses (a) and (b) of the
definition of Interest Shortfalls with respect to the Mortgage Loans for the
related Prepayment Period, and not so paid by the Servicer and (ii) the Master
Servicer Compensation for such Payment Date (such amount, the "Compensating
Interest Payment"). The Master Servicer shall not be entitled to any
reimbursement of any Compensating Interest Payment.
Section 3.22. Compliance with Regulation AB.
Each of the parties hereto acknowledges and agrees that the purpose of
Sections 3.15, 3.16 and 3.17 is to facilitate compliance by the Depositor with
the provisions of Regulation AB, as such may be amended or clarified from time
to time. Therefore, each of the parties agrees that the parties' obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB and the
parties shall comply with requests made by the Depositor for delivery of
additional or different information as the Depositor may determine in good faith
is necessary to comply with the provisions of Regulation AB. Any such
supplementation or modification shall be made in accordance with Section 7.01
without the consent of the Noteholders, and may result in a change in the
reports filed by the Securities Administrator on behalf of the Issuing Entity
under the Exchange Act.
ARTICLE IV
Accounts
Section 4.01. Collection Accounts.
(a) The Master Servicer shall enforce the obligation of the Servicer
to establish and maintain a Collection Account in accordance with the
Servicing Agreement, with records to be kept with respect thereto on a
Mortgage Loan by Mortgage Loan basis, into which account shall be deposited
within two (2) Business Days (or as of such other time specified in the
Servicing Agreement) of receipt, all collections of principal and interest
on any Mortgage Loan and any REO Property received by the Servicer,
including Principal Prepayments, Insurance Proceeds, Liquidation Proceeds,
and advances made from the Servicer's own funds (less servicing
compensation as permitted by the Servicing Agreement) and all other amounts
to be deposited in the related Collection Account. Each Collection Account
shall be an Eligible Account. The Servicer is hereby authorized to make
withdrawals from and deposits
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to the related Collection Account for purposes required or permitted by
this Agreement. To the extent provided in the Servicing Agreement, the
Collection Account shall be held by a Designated Depository Institution and
segregated on the books of such institution in the name of the Indenture
Trustee for the benefit of the Noteholders.
(b) To the extent provided in the Servicing Agreement, amounts on
deposit in the Collection Account may be invested in Permitted Investments
in the name of the Indenture Trustee for the benefit of Noteholders and,
except as provided in the preceding paragraph, not commingled with any
other funds. Such Permitted Investments shall mature, or shall be subject
to redemption or withdrawal, no later than the date on which such funds are
required to be withdrawn for deposit in the Master Servicer Collection
Account, and shall be held until required for such deposit. The income
earned from Permitted Investments made pursuant to this Section 4.01 shall
be paid to the Servicer under the Servicing Agreement, and the risk of loss
of moneys required to be distributed to the Noteholders resulting from such
investments shall be borne by and be the risk of the Servicer. The Servicer
(to the extent required by the Servicing Agreement) shall deposit the
amount of any such loss in the Collection Account within two Business Days
of receipt of notification of such loss but not later than the second
Business Day prior to the Payment Date on which the moneys so invested are
required to be distributed to the Noteholders.
(c) To the extent required by the Servicing Agreement and subject to
this Article IV, on or before each Servicer Remittance Date, the Servicer
shall withdraw or shall cause to be withdrawn from its Collection Account
and shall immediately deposit or cause to be deposited in the Master
Servicer Collection Account amounts representing the following collections
and payments (other than with respect to principal of or interest on the
Mortgage Loans due on or before the Cut-off Date):
(i) Scheduled Payments on the Mortgage Loans received or any related
portion thereof advanced by the Servicer pursuant to the Servicing Agreement
which were due on or before the related Due Date, net of the amount thereof
comprising the Servicing Fee or any fees with respect to any lender-paid primary
mortgage insurance policy;
(ii) Principal Prepayments in full and any Liquidation Proceeds
received by the Servicer with respect to the Mortgage Loans in the related
Prepayment Period, with interest to the date of prepayment or liquidation, net
of the amount thereof comprising the Servicing Fee;
(iii) Principal Prepayments in part received by the Servicer for the
Mortgage Loans in the related Prepayment Period; and
(iv) Any amount to be used as a Monthly Advance.
(d) Withdrawals may be made from the Collection Account only to make
remittances as provided in Section 4.01(c), 4.02 and 4.03; to reimburse the
Master Servicer or the Servicer for Monthly Advances which have been
recovered by subsequent collections from the related Mortgagor; to remove
amounts deposited in error; to remove fees, charges or other such amounts
deposited on a temporary basis; or to clear and terminate the account at
the termination of this Agreement in accordance with Section 7.10. As
provided in Sections
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4.01(a) and 4.02(b) certain amounts otherwise due to the Servicer may be
retained by it and need not be deposited in the Master Servicer Collection
Account.
Section 4.02. Master Servicer Collection Account.
(a) The Master Servicer shall establish and maintain in the name of
the Indenture Trustee, for the benefit of the Noteholders, the Master
Servicer Collection Account as a segregated trust account or accounts. The
Master Servicer Collection Account may be a sub-account of the Payment
Account but in any event shall be an Eligible Account. The Master Servicer
will deposit in the Master Servicer Collection Account as identified by the
Master Servicer and as received by the Master Servicer, the following
amounts:
(i) Any amounts withdrawn from the Collection Account;
(ii) Any Monthly Advance (unless the Master Servicer and the Servicer
are the same entity) and any Compensating Interest Payments;
(iii) Any Insurance Proceeds or Net Liquidation Proceeds received by
or on behalf of the Master Servicer or which were not deposited in the
Collection Account;
(iv) The Repurchase Price with respect to any Mortgage Loans purchased
by the Seller pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02
or 2.03 hereof, any amounts which are to be treated pursuant to Section 2.04 of
this Agreement as the payment of a Repurchase Price in connection with the
tender of a Substitute Mortgage Loan by the Seller and the Repurchase Price with
respect to any Mortgage Loans purchased by the Majority Certificateholder
pursuant to Section 3.19;
(v) Any amounts required to be deposited by the Master Servicer with
respect to losses on investments of deposits in the Master Servicer Collection
Account or Payment Account; and
(vi) Any other amounts received by or on behalf of the Master Servicer
and required to be deposited in the Master Servicer Collection Account pursuant
to this Agreement.
(b) All amounts deposited to the Master Servicer Collection Account
shall be held by the Master Servicer in the name of the Indenture Trustee
in trust for the benefit of the Noteholders in accordance with the terms
and provisions of this Agreement and the Indenture. The requirements for
crediting the Master Servicer Collection Account or the Payment Account
shall be exclusive, it being understood and agreed that, without limiting
the generality of the foregoing, payments in the nature of (i) prepayment
or late payment charges or assumption, tax service, statement account or
payoff, substitution, satisfaction, release and other like fees and charges
and (ii) the items enumerated in Subsections 4.05(a)(i), (ii), (iii), (iv),
(vi), (vii), (viii), (ix), (x), (xi) and (xii), need not be credited by the
Master Servicer or the Servicer to the Master Servicer Collection Account
or remitted by the Master Servicer or related Servicer to the Securities
Administrator for deposit in the Payment Account, as applicable. In the
event that the Master Servicer shall remit or cause to be remitted to the
Securities Administrator for deposit to the Payment Account any amount not
required to be credited thereto, the Securities Administrator, upon receipt
of a written request therefor signed
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by a Servicing Officer of the Master Servicer, shall promptly transfer such
amount to the Master Servicer, any provision herein to the contrary
notwithstanding.
(c) The amount at any time credited to the Master Servicer Collection
Account may be invested, in the name of the Indenture Trustee, or its
nominee, for the benefit of the Noteholders, in Permitted Investments as
directed by Master Servicer. All Permitted Investments shall mature or be
subject to redemption or withdrawal on or before, and shall be held until,
the next succeeding Payment Account Deposit Date. Any and all investment
earnings on amounts on deposit in the Master Servicer Collection Account
from time to time shall be for the account of the Master Servicer. The
Master Servicer from time to time shall be permitted to withdraw or receive
distribution of any and all investment earnings from the Master Servicer
Collection Account. The risk of loss of moneys required to be distributed
to the Noteholders resulting from such investments shall be borne by and be
the risk of the Master Servicer. The Master Servicer shall deposit the
amount of any such loss in the Master Servicer Collection Account within
two Business Days of receipt of notification of such loss but not later
than the second Business Day prior to the Payment Date on which the moneys
so invested are required to be distributed to the Noteholders.
The Master Servicer shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Master Servicer Collection Account pursuant to subclauses
(i) through (iv) of Section 3.25 of the Indenture or with respect to any such
amounts which would have been covered by such subclauses had the amounts not
been retained by the Master Servicer without being remitted to the Securities
Administrator for deposit in the Payment Account under Section 4.03 of this
Agreement.
Section 4.03. Permitted Withdrawals and Transfers from the Master Servicer
Collection Account.
(a) The Master Servicer will, from time to time on demand of the
Servicer or the Securities Administrator, make or cause to be made such
withdrawals or transfers from the Master Servicer Collection Account as the
Master Servicer has designated for such transfer or withdrawal pursuant to
this Agreement and the Servicing Agreement. The Master Servicer may clear
and terminate the Master Servicer Collection Account pursuant to Section
7.10 and remove amounts from time to time deposited in error.
(b) On an ongoing basis, the Master Servicer shall withdraw from the
Master Servicer Collection Account (i) any expenses, costs and liabilities
recoverable by the Master Servicer or the Securities Administrator pursuant
to Sections 3.02 and 5.04 hereof and Section 6.07 of the Indenture and (ii)
any amounts payable to the Master Servicer as set forth in Section 3.13;
provided however, that the Master Servicer shall be obligated to pay from
its own funds any amounts which it is required to pay under Section 5.03.
(c) In addition, on or before each Payment Account Deposit Date, the
Master Servicer or, if the Master Servicer and the Servicer are the same
entity, the Indenture Trustee or another successor servicer shall deposit
in the Payment Account any Monthly Advances required to be made by the
Master Servicer or, if the Master Servicer and the Servicer are the
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same entity, the Indenture Trustee or another successor servicer with
respect to the Mortgage Loans.
(d) No later than 3:00 p.m. New York time on each Payment Account
Deposit Date, the Master Servicer will transfer all Available Funds on
deposit in the Master Servicer Collection Account with respect to the
related Payment Date to the Securities Administrator for deposit in the
Payment Account.
Section 4.04. Payment Account.
(a) The Securities Administrator shall establish and maintain in the
name of the Indenture Trustee, for the benefit of the Noteholders, the
Payment Account as a segregated trust account or accounts.
(b) All amounts deposited to the Payment Account shall be held by the
Securities Administrator in the name of the Indenture Trustee in trust for
the benefit of the Noteholders in accordance with the terms and provisions
of this Agreement.
(c) The Payment Account shall constitute a non-interest bearing trust
account of the Trust Estate segregated on the books of the Securities
Administrator and held by the Securities Administrator in trust, and the
Payment Account and the funds deposited therein shall not be subject to,
and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Securities Administrator (whether made
directly, or indirectly through a liquidator or receiver of the Securities
Administrator). The Payment Account shall be an Eligible Account.
(d) The amount at any time credited to the Payment Account shall be
(i) held in cash or (ii) invested, in the name of the Indenture Trustee,
for the benefit of the Noteholders, but only in Permitted Investments as
directed by Master Servicer. All Permitted Investments shall mature or be
subject to redemption or withdrawal on or before, and shall be held until,
the next succeeding Payment Date if the obligor for such Permitted
Investment is the Securities Administrator, or if such obligor is any other
Person, the Business Day preceding such Payment Date. All investment
earnings on amounts on deposit in the Payment Account or benefit from funds
uninvested therein from time to time shall be for the account of the Master
Servicer. The Securities Administrator shall remit all investment earnings
from the Payment Account to the Master Servicer on each Payment Date. If
there is any loss on a Permitted Investment, the Master Servicer shall
remit the amount of the loss to the Securities Administrator who shall
deposit such amount in the Payment Account.
(e) The Securities Administrator or its Affiliates are permitted to
receive additional compensation that could be deemed to be in the
Securities Administrator's economic self-interest for (i) servicing as
investment advisor, administrator, shareholder, servicing agent, custodian
or sub-custodian with respect to certain of the Permitted Investments, (ii)
using Affiliates to effect transactions in certain Permitted Investments
and (iii) effecting transactions in certain Permitted Investments. Such
compensation shall not be considered an amount that is reimbursable or
payable pursuant to Section 4.05.
Section 4.05. Permitted Withdrawals and Transfers from the Payment Account.
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(a) The Securities Administrator will, from time to time on demand of
the Master Servicer, make or cause to be made such withdrawals or transfers
from the Payment Account as the Master Servicer has designated for such
transfer or withdrawal pursuant to this Agreement and the Servicing
Agreement or as the Securities Administrator has instructed hereunder for
the following purposes (limited in the case of amounts due the Master
Servicer to those not withdrawn from the Master Servicer Collection Account
as certified by the Securities Administrator in accordance with the terms
of this Agreement but not in any order of priority):
(i) to reimburse the Master Servicer, Indenture Trustee, any successor
servicer or the Servicer for any Monthly Advance of its own funds, the right of
the Master Servicer or the Servicer to reimbursement pursuant to this subclause
(i) being limited to amounts received on a particular Mortgage Loan (including,
for this purpose, the Repurchase Price therefor, Insurance Proceeds and
Liquidation Proceeds) which represent late payments or recoveries of the
principal of or interest on such Mortgage Loan respecting which such Monthly
Advance was made;
(ii) to reimburse the Master Servicer or the Servicer from Insurance
Proceeds or Liquidation Proceeds relating to a particular Mortgage Loan for
amounts expended by the Master Servicer or such Servicer in good faith in
connection with the restoration of the related Mortgaged Property which was
damaged by an Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(iii) to reimburse the Master Servicer or the Servicer from Insurance
Proceeds relating to a particular Mortgage Loan for insured expenses incurred
with respect to such Mortgage Loan and to reimburse the Master Servicer or the
Servicer from Liquidation Proceeds from a particular Mortgage Loan for
Liquidation Expenses incurred with respect to such Mortgage Loan; provided that
the Master Servicer shall not be entitled to reimbursement for Liquidation
Expenses with respect to a Mortgage Loan to the extent that (i) any amounts with
respect to such Mortgage Loan were paid as Excess Liquidation Proceeds pursuant
to clause (viii) of this Subsection 4.05(a) to the Master Servicer; and (ii)
such Liquidation Expenses were not included in the computation of such Excess
Liquidation Proceeds;
(iv) to reimburse the Master Servicer or the Servicer for advances of
funds (other than Monthly Advances) made with respect to the Mortgage Loans, and
the right to reimbursement pursuant to this subclause being limited to amounts
received on the related Mortgage Loan (including, for this purpose, the
Repurchase Price therefor, Insurance Proceeds and Liquidation Proceeds) which
represent late recoveries of the payments for which such advances were made;
(v) to reimburse the Master Servicer or the Servicer for any Monthly
Advance or advance, after a Realized Loss has been allocated with respect to the
related Mortgage Loan if the Monthly Advance or advance has not been reimbursed
pursuant to clauses (i) and (iv);
(vi) to pay the Master Servicer as set forth in Section 3.13; provided
however, that the Master Servicer shall be obligated to pay from its own funds
any amounts which it is required to pay under Section 5.03;
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(vii) to reimburse the Master Servicer for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to Sections 3.02,
5.04(c) and 5.04(d), to the extent that the Master Servicer has not already
reimbursed itself for such amounts from the Master Servicer Collection Account;
(viii) to pay to the Master Servicer, as additional servicing
compensation, any Excess Liquidation Proceeds to the extent not retained by the
Servicer;
(ix) to reimburse or pay the Servicer any such amounts as are due
thereto under the Servicing Agreement and have not been retained by or paid to
the Servicer, to the extent provided in the Servicing Agreement;
(x) to reimburse or pay the Indenture Trustee, the Owner Trustee and
the Securities Administrator any amounts due or expenses, costs and liabilities
incurred by or reimbursable to it pursuant to this Agreement, the Indenture and
the Trust Agreement, to the extent such amounts have not already been previously
paid or reimbursed to such party from the Master Servicer Collection Account;
(xi) to remove amounts deposited in error; and
(xii) to clear and terminate the Payment Account pursuant to Section
7.10.
(b) The Master Servicer shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting
for any reimbursement from the Payment Account pursuant to subclauses (i)
through (iv) of Section 4.05(a) or with respect to any such amounts that
would have been covered by such subclauses had the amounts not been
retained by the Master Servicer without being deposited in the Payment
Account under Section 4.02(b).
(c) On each Payment Date, pursuant to Section 3.03 of the Indenture,
the Securities Administrator shall distribute the Available Funds to the
extent on deposit in the Payment Account to the Holders of the Notes, in
accordance with Section 3.03 of the Indenture.
ARTICLE V
The Master Servicer
Section 5.01. Liabilities of the Master Servicer.
The Master Servicer shall be liable in accordance herewith only to the
extent of the obligations specifically imposed upon and undertaken by it herein.
Section 5.02. Merger or Consolidation of the Master Servicer.
(a) The Master Servicer will keep in full force and effect its
existence, rights and franchises as a corporation under the laws of the
state of its incorporation, and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this
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Agreement, the Notes or any of the Mortgage Loans and to perform its duties
under this Agreement.
(b) Any Person into which the Master Servicer may be merged or
consolidated, or any corporation resulting from any merger or consolidation
to which the Master Servicer shall be a party, or any Person succeeding to
the business of the Master Servicer, shall be the successor of the Master
Servicer hereunder, without the execution or filing of any paper or further
act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 5.03. Indemnification of the Indenture Trustee, Owner Trustee, the
Master Servicer and the Securities Administrator.
The Master Servicer agrees to indemnify the Indenture Trustee, the Owner
Trustee, the Seller, the Depositor and the Securities Administrator (each an
"Indemnified Person") for, and to hold them harmless against, any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or relating to, any claim or legal action (including any pending
or threatened claim or legal action) relating to this Agreement, the Indenture,
the Servicing Agreement, the Assignment Agreements or the Notes or the powers of
attorney delivered by the Indenture Trustee hereunder (i) related to the Master
Servicer's failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Master Servicer's
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder, provided, in each case, that with respect to any such claim or legal
action (or pending or threatened claim or legal action), the Indemnified Person
shall have given the Master Servicer and the Depositor written notice thereof
promptly after such Indemnified Person shall have with respect to such claim or
legal action knowledge thereof. The Master Servicer's failure to receive any
such notice shall not affect an Indemnified Persons' right to indemnification
hereunder, except to the extent the Master Servicer is materially prejudiced by
such failure to give notice. This indemnity shall survive the resignation or
removal of the Indenture Trustee, Owner Trustee, Master Servicer and the
Securities Administrator and the termination of this Agreement. Xxxxxxx Xxxxx
Mortgage Capital Inc. agrees to indemnify the Owner Trustee for any loss,
liability or expense for which the Depositor is required to indemnify the Owner
Trustee, other than (x) any loss liability or expense required to be covered by
the Master Servicer pursuant to this Section 5.03 and (y) any loss, liability or
expense already paid by the Depositor in accordance with Section 7.02 of the
Trust Agreement.
Section 5.04. Limitations on Liability of the Master Servicer and Others.
Subject to the obligation of the Master Servicer to indemnify the
Indemnified Persons pursuant to Section 5.03:
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to
the Indemnified Persons, the Depositor, the Trust Estate or the Noteholders
for taking any action or for refraining from
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taking any action in good faith pursuant to this Agreement, or for errors
in judgment; provided, however, that this provision shall not protect the
Master Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be
imposed by reason of such Person's willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder.
(b) The Master Servicer and any director, officer, employee or agent
of the Master Servicer may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
matters arising hereunder.
(c) The Master Servicer and any director, officer, employee or agent
of the Master Servicer and the Indenture Trustee, to the extent it becomes
a party to the Servicing Agreement pursuant to Section 3.02, and any
officer, director, employee or agent of the Indenture Trustee, shall be
indemnified by the Trust Estate and held harmless thereby against any loss,
liability or expense (including reasonable legal fees and disbursements of
counsel) incurred on their part that may be sustained in connection with,
arising out of, or related to, any claim or legal action (including any
pending or threatened claim or legal action) relating to this Agreement,
the Indenture, the Notes or the Servicing Agreement (except to the extent
that the Master Servicer or the Indenture Trustee, as the case may be, is
indemnified by the Servicer thereunder), other than (i) any such loss,
liability or expense related to the Master Servicer's failure to perform
its duties in compliance with this Agreement (except as any such loss,
liability or expense shall be otherwise reimbursable pursuant to this
Agreement), or (ii) any such loss, liability or expense incurred by reason
of the Master Servicer's willful misfeasance, bad faith or gross negligence
in the performance of duties hereunder or by reason of reckless disregard
of obligations and duties hereunder.
(d) The Master Servicer shall not be under any obligation to appear
in, prosecute or defend any legal action that is not incidental to its
duties under this Agreement and that in its opinion may involve it in any
expense or liability; provided, however, the Master Servicer may in its
discretion undertake any such action which it may deem necessary or
desirable with respect to this Agreement or the Indenture and the rights
and duties of the parties hereto and the interests of the Noteholders
hereunder and thereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Trust Estate, and the Master Servicer shall be
entitled to be reimbursed therefor out of the Master Servicer Collection
Account as provided by Section 4.03. Nothing in this Section 5.04(d) shall
affect the Master Servicer's obligation to supervise, or to take such
actions as are necessary to ensure, the servicing and administration of the
Mortgage Loans pursuant to Section 3.01.
(e) In taking or recommending any course of action pursuant to this
Agreement, unless specifically required to do so pursuant to this
Agreement, the Master Servicer shall not be required to investigate or make
recommendations concerning potential liabilities which the Trust Estate
might incur as a result of such course of action by reason of the condition
of the Mortgaged Properties but shall give written notice to the Servicer
and the Indenture Trustee if it has notice of such potential liabilities.
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(f) [Reserved].
(g) It is expressly understood and agreed by the parties hereto that
(i) this Agreement is executed and delivered by Wilmington Trust Company,
not individually or personally but solely as trustee of the Issuing Entity,
in the exercise of the powers and authority conferred and vested in it
under the Trust Agreement, (ii) each of the representations, undertakings
and agreements herein made on the part of the Issuing Entity is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose of
binding only the Issuing Entity and (iii) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuing Entity or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuing Entity under this Agreement or the other
Transaction Documents.
Section 5.05. Master Servicer Not to Resign.
Except as provided in Section 5.07, the Master Servicer shall not resign
from the obligations and duties hereby imposed on it except upon a determination
that any such duties hereunder are no longer permissible under applicable law
and such impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Opinion of Counsel
addressed to the Indenture Trustee and the Issuing Entity to such effect
delivered to the Indenture Trustee and the Issuing Entity. No such resignation
by the Master Servicer shall become effective until the Depositor or the
Indenture Trustee or a successor to the Master Servicer reasonably satisfactory
to the Indenture Trustee and the Depositor shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 6.02 hereof. The Indenture Trustee shall notify the Rating Agencies of
the resignation of the Master Servicer. Any resignation of the Master Servicer
shall result in the automatic resignation of the Securities Administrator.
Section 5.06. Successor Master Servicer.
In connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Depositor or the Indenture
Trustee may make such arrangements for the compensation of such successor master
servicer out of payments on the Mortgage Loans as the Depositor or the Indenture
Trustee and such successor master servicer shall agree. If the successor master
servicer does not agree that such market value is a fair price, such successor
master servicer shall obtain two quotations of market value from third parties
actively engaged in the servicing of single-family mortgage loans.
Notwithstanding the foregoing, the compensation payable to a successor master
servicer may not exceed the compensation which the Master Servicer would have
been entitled to retain if the Master Servicer had continued to act as Master
Servicer hereunder. Notwithstanding anything to the contrary contained herein,
in no event shall the Indenture Trustee be liable for any master servicing
compensation or for any differential in the amount of the master servicing
compensation paid hereunder or under the Basic Documents and the amount
necessary to induce any successor master servicer to act as successor master
servicer under this Agreement or the Basic Documents and the transactions set
forth or provided for herein or in the Basic Documents.
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Section 5.07. Sale and Assignment of Master Servicing.
The Master Servicer may sell and assign its rights and delegate its duties
and obligations in its entirety as Master Servicer under this Agreement;
provided, however, that: (i) the purchaser or transferee accepting such
assignment and delegation (a) shall be a Person which shall be qualified to
service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall have a net worth
of not less than $25,000,000 (unless otherwise approved by each Rating Agency
pursuant to clause (ii) below); (c) shall be reasonably satisfactory to the
Indenture Trustee and the Depositor (as evidenced in a writing signed by the
Indenture Trustee and the Depositor); and (d) shall execute and deliver to the
Indenture Trustee an agreement, in form and substance reasonably satisfactory to
the Issuing Entity and the Indenture Trustee, which contains an assumption by
such Person of the due and punctual performance and observance of each covenant
and condition to be performed or observed by it as master servicer under this
Agreement; (ii) each Rating Agency shall be given prior written notice of the
identity of the proposed successor to the Master Servicer and each Rating
Agency's rating of the Notes in effect immediately prior to such assignment,
sale and delegation will not be downgraded, qualified or withdrawn as a result
of such assignment, sale and delegation, as evidenced by a letter to such effect
delivered to the Master Servicer, the Issuing Entity and the Indenture Trustee;
and (iii) the Master Servicer assigning and selling the master servicing shall
deliver to the Issuing Entity and the Indenture Trustee an Officer's Certificate
and an Opinion of Counsel addressed to the Issuing Entity and the Indenture
Trustee, each stating that all conditions precedent to such action under this
Agreement have been completed and such action is permitted by and complies with
the terms of this Agreement. No such assignment or delegation shall affect any
liability of the Master Servicer arising prior to the effective date thereof.
ARTICLE VI
Default
Section 6.01. Master Servicer Events of Default.
"Master Servicer Event of Default," wherever used herein, means any one of
the following events (whatever the reason for such Master Servicer Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) and
only with respect to the defaulting Master Servicer:
(i) The Master Servicer fails to cause to be deposited in the Payment
Account any amount so required to be deposited pursuant to this Agreement (other
than a Monthly Advance), and such failure continues unremedied for a period of
three Business Days after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer;
or
(ii) The Master Servicer fails to observe or perform in any material
respect any other material covenants and agreements set forth in this Agreement
to be performed by it, which covenants and agreements materially affect the
rights of Noteholders, and such failure continues unremedied for a period of 60
days (or 10 days in the case of covenants and agreements contained in Section
3.15 or Section 3.16 of this Agreement) after the date on which
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written notice of such failure, properly requiring the same to be remedied,
shall have been given to the Master Servicer by the Indenture Trustee or to the
Master Servicer and the Indenture Trustee by the Holders of Notes aggregating at
least 25% of the Note Principal Balance of the Notes; or
(iii) There is entered against the Master Servicer a decree or order
by a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order is unstayed and in effect for a
period of 60 consecutive days, or an involuntary case is commenced against the
Master Servicer under any applicable insolvency or reorganization statute and
the petition is not dismissed within 60 days after the commencement of the case;
or
(iv) The Master Servicer consents to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings of or relating to the Master
Servicer or substantially all of its property; or the Master Servicer admits in
writing its inability to pay its debts generally as they become due, files a
petition to take advantage of any applicable insolvency or reorganization
statute, makes an assignment for the benefit of its creditors, or voluntarily
suspends payment of its obligations; or
(v) The Master Servicer assigns or delegates its duties or rights
under this Agreement in contravention of the provisions permitting such
assignment or delegation under Sections 5.05 or 5.07; or
(vi) The Master Servicer (if the Master Servicer and the Servicer are
not the same entity) fails to deposit, or cause to be deposited, in the Payment
Account any Monthly Advance (other than a Nonrecoverable Advance) by 5:00 p.m.
New York City time on the Payment Account Deposit Date.
In each and every such case, so long as such Master Servicer Event of
Default with respect to the Master Servicer shall not have been remedied, either
the Indenture Trustee or the Holders of Notes aggregating at least 51% of the
Note Principal Balance of the Notes, by notice in writing to the Master Servicer
(and to the Indenture Trustee if given by such Noteholders), with a copy to the
Rating Agencies, and with the consent of the Depositor, may terminate all of the
rights and obligations (but not the liabilities) of the Master Servicer under
this Agreement and in and to the Mortgage Loans and/or the REO Property serviced
by the Master Servicer and the proceeds thereof. Upon the receipt by the Master
Servicer of the written notice, all authority and power of the Master Servicer
under this Agreement, whether with respect to the Notes, the Mortgage Loans, REO
Property or under any other related agreements (but only to the extent that such
other agreements relate to the Mortgage Loans or related REO Property) shall,
subject to Section 6.02, automatically and without further action pass to and be
vested in the Indenture Trustee pursuant to this Section 6.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer as attorney-in-fact or otherwise,
any and all documents and other instruments and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and
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related documents, or otherwise. The Master Servicer agrees to cooperate with
the Indenture Trustee in effecting the termination of the Master Servicer's
rights and obligations hereunder, including, without limitation, the transfer to
the Indenture Trustee of (i) the property and amounts which are then or should
be part of the Trust Estate or which thereafter become part of the Trust Estate;
and (ii) originals or copies of all documents of the Master Servicer reasonably
requested by the Indenture Trustee to enable it to assume the Master Servicer's
duties thereunder. In addition to any other amounts which are then, or,
notwithstanding the termination of its activities under this Agreement, may
become payable to the Master Servicer under this Agreement, the Master Servicer
shall be entitled to receive, out of any amount received on account of a
Mortgage Loan or related REO Property, that portion of such payments which it
would have received as reimbursement under this Agreement if notice of
termination had not been given. The termination of the rights and obligations of
the Master Servicer shall not affect any obligations incurred by the Master
Servicer prior to such termination.
Notwithstanding the foregoing, if an Event of Default described in clause
(vi) of this Section 6.01 shall occur of which a Responsible Officer of the
Indenture Trustee has received written notice or has actual knowledge, the
Indenture Trustee shall, by notice in writing to the Master Servicer, which may
be delivered by telecopy, immediately terminate all of the rights and
obligations of the Master Servicer thereafter arising under this Agreement, but
without prejudice to any rights it may have as a Noteholder or to reimbursement
of Monthly Advances and other advances of its own funds, and the Indenture
Trustee shall thereupon become the successor Master Servicer as provided in
Section 6.02 and carry out the duties of the Master Servicer, including the
obligation (subject to applicable law and its determination of recoverability)
to make any Monthly Advance the nonpayment of which was an Event of Default
described in clause (vi) of this Section 6.01. Any such action taken by the
Indenture Trustee must be prior to the distribution on the relevant Payment
Date.
Section 6.02. Indenture Trustee to Act; Appointment of Successor.
(a) Upon the receipt by the Master Servicer of a notice of termination
pursuant to Section 6.01 or an Opinion of Counsel pursuant to Section 5.05
to the effect that the Master Servicer is legally unable to act or to
delegate its duties to a Person which is legally able to act, the Indenture
Trustee shall automatically become the successor in all respects to the
Master Servicer in its capacity under this Agreement and the transactions
set forth or provided for herein and shall thereafter be subject to all the
responsibilities, duties, liabilities and limitations on liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof; provided, however, that the Depositor shall have the right to
select a successor Master Servicer; provided further, however, that the
Indenture Trustee shall have no obligation whatsoever with respect to any
liability (including advances deemed recoverable and not previously made
with respect to the relevant Payment Date giving rise to the Master
Servicer Event of Default which shall be made by such successor Master
Servicer) incurred by the Master Servicer at or prior to the time of
termination. Neither the Indenture Trustee nor any other successor Master
Servicer shall be deemed to be in default hereunder by reason of any
failure to make, or any delay in making, any distribution hereunder or any
or any portion thereof or any failure to perform, or any delay in
performing, any duties or responsibilities hereunder, in either case caused
by the failure of the Master Servicer to deliver or provide, or any delay
in delivering or providing, any cash, documents or records to it. As
compensation
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therefor, but subject to Section 5.06, the Indenture Trustee shall be
entitled to compensation which the Master Servicer would have been entitled
to retain if the Master Servicer had continued to act hereunder, except for
those amounts due the Master Servicer as reimbursement permitted under this
Agreement for advances previously made or expenses previously incurred.
Notwithstanding the above, the Indenture Trustee may, if it shall be
unwilling so to act, or shall, if it is legally unable so to act, appoint
or petition a court of competent jurisdiction to appoint, any established
housing and home finance institution which is a Xxxxxx Mae- or Xxxxxxx
Mac-approved servicer, and with respect to a successor to the Master
Servicer only, having a net worth of not less than $25,000,000, as the
successor to the Master Servicer hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer
hereunder. Pending appointment of a successor to the Master Servicer
hereunder, the Indenture Trustee shall be the successor and act in such
capacity as hereinabove provided. In connection with such appointment and
assumption, the Indenture Trustee may make such arrangements for the
compensation of such successor out of payments on the Mortgage Loans as it
and such successor shall agree; provided, however, that the provisions of
Section 5.06 shall apply, the compensation shall not be in excess of that
which the Master Servicer would have been entitled to if the Master
Servicer had continued to act hereunder, and that such successor shall
undertake and assume the obligations of the Master Servicer to pay
compensation to any third Person acting as an agent or independent
contractor in the performance of master servicing responsibilities
hereunder. The Indenture Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any
such succession.
(b) If the Indenture Trustee shall succeed to any duties of the Master
Servicer respecting the Mortgage Loans as provided herein, it shall do so
in a separate capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI of the Indenture (with the
exception of Section 6.02(i)) shall be inapplicable to the Indenture
Trustee in its duties as the successor to the Master Servicer in the
servicing of the Mortgage Loans (although such provisions shall continue to
apply to the Indenture Trustee in its capacity as Indenture Trustee); the
provisions of Article V, however, shall apply to it in its capacity as
successor master servicer.
Section 6.03. Notification to Noteholders.
Upon any termination or appointment of a successor to the Master Servicer,
the Indenture Trustee shall give prompt written notice thereof to Noteholders at
their respective addresses appearing in the Note Register and to the Rating
Agencies.
Section 6.04. Waiver of Defaults.
The Indenture Trustee shall transmit by mail to all Noteholders, within 60
days after the occurrence of any Master Servicer Event of Default of which a
Responsible Officer of the Indenture Trustee received written notice or has
actual knowledge, unless such Master Servicer Event of Default shall have been
cured, notice of each such Master Servicer Event of Default. The Holders of
Notes aggregating at least 51% of the Note Principal Balance of the Notes may,
on behalf of all Noteholders, waive any default by the Master Servicer in the
performance of its obligations hereunder and the consequences thereof, except a
default in the making of or the
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causing to be made any required distribution on the Notes, which default may
only be waived by Holders of Notes aggregating 100% of the Note Principal
Balance of the Notes. Upon any such waiver of a past default, such default shall
be deemed to cease to exist, and any Master Servicer Event of Default arising
therefrom shall be deemed to have been timely remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
The Indenture Trustee shall give notice of any such waiver to the Rating
Agencies.
ARTICLE VII
Miscellaneous Provisions
Section 7.01. Amendment.
(a) This Agreement may be amended from time to time by the Issuing
Entity, the Seller, the Depositor, the Master Servicer, the Securities
Administrator and the Indenture Trustee, without notice to or the consent
of any of the Noteholders, to cure any ambiguity, to correct or supplement
any provisions herein or therein that may be defective or inconsistent with
any other provisions herein or therein, to comply with any changes in the
Code or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, addressed to the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder.
(b) This Agreement may also be amended from time to time by the
Issuing Entity, the Seller, the Master Servicer, the Depositor, the
Securities Administrator and the Indenture Trustee, with the consent of the
Holders of Notes aggregating at least 66 2/3% of Note Principal Balance of
the Notes, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however,
that no such amendment shall (i) reduce in any manner the amount of, or
delay the timing of, payments received on Mortgage Loans which are required
to be distributed on any Note without the consent of the Holder of such
Note or (ii) reduce the aforesaid percentage of Notes the Holders of which
are required to consent to any such amendment, without the consent of the
Holders of all Notes then outstanding. Notwithstanding any other provision
of this Agreement, for purposes of the giving or withholding of consents
pursuant to this Section 7.01(b), Notes registered in the name of or held
for the benefit of the Issuing Entity, the Depositor, the Securities
Administrator, the Master Servicer, or the Indenture Trustee or any
Affiliate thereof shall be entitled to vote their Percentage Interests with
respect to matters affecting such Notes.
(c) Promptly after the execution of any such amendment, the Indenture
Trustee shall furnish a copy of such amendment or written notification of
the substance of such amendment to each Noteholder, with a copy to the
Rating Agencies.
(d) In the case of an amendment under Subsection 7.01(b) above, it
shall not be necessary for the Noteholders to approve the particular form
of such an amendment. Rather, it shall be sufficient if the Noteholders
approve the substance of the amendment. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
-47-
Noteholders shall be subject to such reasonable regulations as the
Indenture Trustee may prescribe.
(e) Prior to the execution of any amendment to this Agreement, the
Indenture Trustee shall be entitled to receive and rely upon an Opinion of
Counsel addressed to the Indenture Trustee stating that the execution of
such amendment is authorized or permitted by this Agreement. The Indenture
Trustee, the Master Servicer and the Securities Administrator may, but
shall not be obligated to, enter into any such amendment which affects its
own respective rights, duties or immunities under this Agreement.
Section 7.02. Recordation of Agreement.
To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
Mortgaged Properties are situated, and in any other appropriate public recording
office or elsewhere. The Depositor shall effect such recordation, at the expense
of the Trust Estate upon the request in writing of a Noteholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Noteholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Noteholders or is
required by law.
Section 7.03. Governing Law.
THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS RULES (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, WHICH THE PARTIES HERETO
EXPRESSLY RELY UPON IN THE CHOICE OF SUCH LAW AS THE GOVERNING LAW HEREUNDER)
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 7.04. Notices.
All demands and notices hereunder shall be in writing and shall be deemed
given when delivered at (including delivery by facsimile) or mailed by
registered mail, return receipt requested, postage prepaid, or by recognized
overnight courier, to (i) in the case of the Depositor, 4 World Financial
Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to such other address as may
hereafter be furnished to the other parties hereto in writing; (ii) in the case
of the Indenture Trustee, at the Corporate Trust Office or such other address as
may hereafter be furnished to the other parties hereto in writing; (iii) in the
case of the Seller, Xxxx Center, 0000 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attn: Xxxx Xxxxxx, with a copy to the same address, Attn.
Xxxxxxx Xxxxx, or to such other address as may hereafter be furnished to the
other parties hereto in writing; (iv) in the case of the Master Servicer or
Securities Administrator, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx Xxxxxxxx
00000 (or, in the case of overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000) (Attention: Client Manager - Xxxxxxx Xxxxx Mortgage
Backed Securities Trust, Series 2007-2), facsimile no.: (000) 000-0000, or such
other address as may hereafter be furnished to the other parties hereto in
writing; (v) in the case
-48-
of the Issuing Entity, to Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series
2007-2 c/o Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administrator, or such other address as may hereafter be furnished to the other
parties hereto in writing; (vi) in the case of the Owner Trustee, to Wilmington
Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administrator; or such other
address as may hereafter be furnished to the other parties hereto in writing;
and (vii) in the case of the Rating Agencies, Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Fitch Inc., Xxx Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any notice delivered to the Depositor,
the Seller, the Master Servicer, the Securities Administrator, the Indenture
Trustee, the Issuing Entity or the Owner Trustee under this Agreement shall be
effective only upon receipt. Any notice required or permitted to be mailed to a
Noteholder, unless otherwise provided herein, shall be given by first-class
mail, postage prepaid, at the address of such Noteholder as shown in the Note
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given when mailed, whether or
not the Noteholder receives such notice.
Section 7.05. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severed from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Notes or the rights of the Noteholders thereof.
Section 7.06. Successors and Assigns.
The provisions of this Agreement shall be binding upon the parties hereto,
the Noteholders and their respective successors and assigns. The Indenture
Trustee shall have the right to exercise all rights of the Issuing Entity under
this Agreement.
Section 7.07. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 7.08. Counterparts.
This Agreement may be executed in two or more counterparts each of which
when so executed and delivered shall be an original but all of which together
shall constitute one and the same instrument.
Section 7.09. Notice to Rating Agencies.
The Indenture Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which a Responsible Officer of the
Indenture Trustee has actual knowledge or written notice:
-49-
a) Any material change or amendment to this Agreement;
b) The occurrence of any Master Servicer Event of Default that
has not been cured;
c) The resignation or termination of the Master Servicer, the
Indenture Trustee or the Securities Administrator; and
d) Any change in the location of the Master Servicer Collection
Account.
Section 7.10. Termination.
The respective obligations and responsibilities of the parties hereto
created hereby shall terminate upon the satisfaction and discharge of the
Indenture pursuant to Section 4.10 thereof and, if applicable, the optional
redemption of the Notes pursuant to Section 8.07 thereof. In the event that this
Agreement is terminated by reason of the payment or liquidation of all Mortgage
Loans or the disposition of all property acquired with respect to all Mortgage
Loans under this Section, the Master Servicer shall deliver to the Securities
Administrator for deposit in the Payment Account all distributable amounts
remaining in the Master Servicer Collection Account. Upon the presentation and
surrender of the Notes, the Securities Administrator shall distribute to the
remaining Noteholders, in accordance with their respective interests, all
distributable amounts remaining in the Payment Account. Upon receipt of notice
of the deposit by the Master Servicer of such distributable amounts, and
following such final Payment Date, the Indenture Trustee shall, or shall cause
the Custodian to, release promptly to the Issuing Entity or its designee the
Mortgage Files for the remaining Mortgage Loans, and the Master Servicer
Collection Account and the Payment Account shall terminate, subject to the
Securities Administrator's obligation to hold any amounts payable to the
Noteholders in trust without interest pending final distributions pursuant to
the Indenture.
Section 7.11. No Petition.
Each party to this Agreement (and with respect to Xxxxx Fargo, solely in
its capacities as Master Servicer and Securities Administrator and not in its
individual or corporate capacity) by entering into this Agreement, hereby
covenants and agrees that it will not at any time institute against the Issuing
Entity, or join in any institution against the Issuing Entity, any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations of the Issuing Entity. This section shall
survive the termination of this Agreement by one year.
Section 7.12. No Recourse.
The Master Servicer acknowledges that no recourse may be had against the
Issuing Entity, except as may be expressly set forth in this Agreement.
Section 7.13. Additional Terms Regarding Indenture.
-00-
Xxx Xxxxxxxxx Trustee and the Securities Administrator shall have only such
duties and obligations under this Agreement as are expressly set forth herein,
and no implied duties on its part shall be read into this Agreement. In entering
into and acting under this Agreement, the Indenture Trustee and the Securities
Administrator shall be entitled to all of the rights, immunities, indemnities
and other protections set forth in Article VI of the Indenture.
Section 7.14. Third Party Beneficiary.
The Owner Trustee is an express third party beneficiary entitled to invoke
the rights provided to it in Section 5.03 hereof.
-51-
IN WITNESS WHEREOF, the Depositor, the Issuing Entity, the Seller, the
Indenture Trustee, the Master Servicer and the Securities Administrator have
caused their names to be signed hereto by their respective officers thereunto
duly authorized as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX XXXXX MORTGAGE BACKED SECURITIES
TRUST, SERIES 2007-2, as Issuing Entity
By: WILMINGTON TRUST COMPANY, solely as
Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HSBC BANK USA, NATIONAL ASSOCIATION, as
Indenture Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TABERNA REALTY HOLDINGS TRUST, as Seller
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A., as Master
Servicer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO BANK, N.A., as Securities
Administrator
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-2-
ACKNOWLEDGED AND AGREED
for purposes of Section 5.03:
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[Intentionally Omitted]
A-1
EXHIBIT B
REQUEST FOR RELEASE OF DOCUMENTS
To: HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: CTLA - Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2.
Xxxxx Fargo Bank, N.A. (the "Custodian")
0000 00xx Xxxxxx XX
Xxxxxxxxxxx, XX 00000
Attn: Inventory Control
RE: Sale and Servicing Agreement, dated as of June 27, 2007 (the "Sale and
Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Backed Securities
Trust, Series 2007-2 as Issuing Entity, Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor, HSBC Bank USA, National Association, as Indenture
Trustee, Xxxxx Fargo Bank, N.A., as Securities Administrator and Master
Servicer and Taberna Realty Holdings Trust, as Seller.
In connection with the administration of the Mortgage Loans held by the
Custodian for the benefit of the Indenture Trustee pursuant to the
above-captioned Sale and Servicing Agreement, we request the release, and hereby
acknowledge receipt, of the Mortgage File for the Mortgage Loan described below,
for the reason indicated.
This release will not invalidate any insurance coverage provided in respect
of the Mortgage Loan under any of the Insurance Policies.
Mortgage Loan Number: __________
Mortgagor Name, Address & Zip Code: __________
Reason for Requesting Documents (check one):
[ ] 1. Mortgage, or if applicable California Mortgage Loan, Paid in Full and
proceeds have been deposited into the Payment Account
[ ] 2. Foreclosure
[ ] 3. Substitution
[ ] 4. Other Liquidation
[ ] 5. Nonliquidation Reason: ________________________________
B-1
By:
------------------------------------
(authorized signer)
Issuer:
--------------------------------
Address:
-------------------------------
Date:
----------------------------------
B-2
EXHIBIT C
SERVICING AGREEMENT
See Exhibit 99.4
C-1
EXHIBIT D
ASSIGNMENT AGREEMENT
See Exhibit 99.3
D-1
EXHIBIT E
MORTGAGE LOAN PURCHASE AGREEMENT
See Exhibit 99.1
E-1
EXHIBIT F
FORM OF XXXXXXXX-XXXXX CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2
I, [identify the certifying individual], certify that:
1. I have reviewed the report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 0000-0 (xxx
"Xxxxxxxx Xxx periodic reports");
2. Based on my knowledge, the Exchange Act periodic reports, taken as a
whole, do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. [I am responsible for reviewing the activities performed by the
servicer(s) and based on my knowledge and the compliance review(s) conducted in
preparing the servicer compliance statement(s) required in this report under
Item 1123 of Regulation AB, and except as disclosed in the Exchange Act periodic
reports, the servicer(s) [has/have] fulfilled [its/their] obligations under the
servicing agreement(s) in all material respects; and]
5. All of the reports on assessment of compliance with servicing criteria
for ABS and their related attestation reports on assessment of compliance with
servicing criteria for asset-backed securities required to be included in this
report in accordance with Item 1122 of Regulation AB and Exchange Act Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form 10-K.
F-1
[In giving the certifications above, I have reasonably relied on
information provided to me by the following unaffiliated parties [name of
servicer, sub-servicer, co-servicer, depositor or trustee].]
Date:
-------------------------------
----------------------------------------
[Signature]
----------------------------------------
[Title]
F-2
EXHIBIT G
FORM OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2
[_______], the [_______] of [_______] (the "Company") hereby certifies to
the Depositor, the Master Servicer and the Securities Administrator, and each of
their officers, directors and affiliates that:
(1) I have reviewed [the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"),] the report on assessment of the Company's compliance with the
Servicing Criteria set forth in Item 1122(d) of Regulation AB (the "Servicing
Criteria"), provided in accordance with Rules 13a-18 and 15d-18 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Item 1122
of Regulation AB (the "Servicing Assessment"), the registered public accounting
firm's attestation report provided in accordance with Rules 13a-18 and 15d-18
under the Exchange Act and Section 1122(b) of Regulation AB (the "Attestation
Report"), and all servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to any of the Depositor, the
Master Servicer and the Trustee pursuant to the Agreement (collectively, the
"Company Servicing Information");
(2) Based on my knowledge, the Company Servicing Information, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in the light of the
circumstances under which such statements were made, not misleading with respect
to the period of time covered by the Company Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been provided to
the Depositor, the Master Servicer and the Securities Administrator;
(4) I am responsible for reviewing the activities performed by [_______] as
[_______] under the [_______] (the "Agreement"), and based on my knowledge [and
the compliance review conducted in preparing the Compliance Statement] and
except as disclosed in
G-1
[the Compliance Statement,] the Servicing Assessment or the Attestation Report,
the Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) [The Compliance Statement required to be delivered by the Company
pursuant to the Agreement, and] [The] [the] Servicing Assessment and Attestation
Report required to be provided by the Company and [by any Subservicer or
Subcontractor] pursuant to the Agreement, have been provided to the Depositor,
the Master Servicer and the Securities Administrator. Any material instances of
noncompliance described in such reports have been disclosed to the Depositor,
the Master Servicer and the Securities Administrator. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used but not defined herein have the meanings ascribed to
them in the Sale and Servicing Agreement, dated as of June 1, 2007, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"), Xxxxx
Fargo Bank, N.A., as master servicer (in such capacity, the "Master Servicer")
and securities administrator (in such capacity, the "Securities Administrator")
and HSBC Bank USA, National Association, as trustee (the "Trustee").
[_______]
as [_______]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
G-2
EXHIBIT H
ADDITIONAL DISCLOSURE NOTIFICATION
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
RE: Xxxxxxx Xxxxx Mortgage Backed Securities Trust, Series 2007-2
**Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies and Gentlemen:
In accordance with Section 3.18(b) of the Sale and Servicing Agreement,
dated as of June 1, 2007, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator and HSBC Bank USA, National Association, as trustee, the
undersigned, as [_____], hereby notifies you that certain events have come to
our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K].
Description of Additional Form [10-D][10-K][8-K] Disclosure:
List of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any inquiries related to this notification should be directed to [_______],
phone number: [_______]; email address: [_______].
[NAME OF PARTY],
as [role]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
H-1
EXHIBIT I-1
ADDITIONAL FORM 10-D DISCLOSURE
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 1: DISTRIBUTION AND POOL
PERFORMANCE INFORMATION
Master Servicer
Information included in the [Monthly Servicer
Statement] Securities Administrator
Any information required by 1121 which is Depositor
NOT included on the [Monthly Statement]
ITEM 2: LEGAL PROCEEDINGS
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Sale and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
Depositor
ITEM 3: SALE OF SECURITIES AND USE OF
PROCEEDS
Information from Item 2(a) of Part II of
Form 10-Q:
With respect to any sale of securities by
the sponsor, depositor or issuing entity,
that are backed by the same asset pool or
are otherwise issued by the issuing entity,
whether or not registered, provide the
sales and use of proceeds information in
Item 701 of Regulation S-K. Pricing
information can be omitted if securities
were not registered.
I-1-1
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 4: DEFAULTS UPON SENIOR SECURITIES Securities Administrator
Trustee
Information from Item 3 of Part II of Form
10-Q:
Report the occurrence of any Event of
Default (after expiration of any grace
period and provision of any required
notice)
ITEM 5: SUBMISSION OF MATTERS TO A VOTE Securities Administrator
OF SECURITY HOLDERS Trustee
Information from Item 4 of Part II of Form
10-Q
ITEM 6: SIGNIFICANT OBLIGORS OF POOL Depositor
ASSETS
Item 1112(b) - Significant Obligor
Financial Information*
* This information need only be reported
on the Form 10-D for the distribution
period in which updated information is
required pursuant to the Item.
ITEM 7: SIGNIFICANT ENHANCEMENT
PROVIDER INFORMATION
Item 1114(b)(2) - Credit Enhancement
Provider Financial Information*
- Determining applicable disclosure Depositor
threshold
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
Item 1115(b) - Derivative Counterparty
Financial Information*
- Determining current maximum probable Depositor
exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be reported
on the Form 10-D for the distribution
period in which updated information is
required pursuant to the Items.
I-1-2
ADDITIONAL FORM 10-D DISCLOSURE
ITEM ON FORM 10-D PARTY RESPONSIBLE
----------------- -----------------
ITEM 8: OTHER INFORMATION Any party responsible for the
applicable Form 8-K Disclosure item
Disclose any information required to be
reported on Form 8-K during the period
covered by the Form 10-D but not reported
ITEM 9: EXHIBITS
Monthly Statement to Certificateholders Securities Administrator
Exhibits required by Item 601 of Regulation Depositor
S-K, such as material agreements
I-1-3
EXHIBIT I-2
ADDITIONAL FORM 10-K DISCLOSURE
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
ITEM 1B: UNRESOLVED STAFF COMMENTS Depositor
ITEM 9B: OTHER INFORMATION Any party responsible for disclosure
items on Form 8-K
Disclose any information required to be
reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not
reported
ITEM 15: EXHIBITS, FINANCIAL STATEMENT Securities Administrator
SCHEDULES Depositor
REG AB ITEM 1112(B): SIGNIFICANT
OBLIGORS OF POOL ASSETS
Significant Obligor Financial Information* Depositor
* This information need only be reported
on the Form 10-K if updated
information is required pursuant to
the Item.
REG AB ITEM 1114(B)(2): CREDIT
ENHANCEMENT PROVIDER FINANCIAL
INFORMATION
- Determining applicable disclosure Depositor
threshold
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be reported
on the Form 10-K if updated
information is required pursuant to
the Item.
REG AB ITEM 1115(B): DERIVATIVE
COUNTERPARTY FINANCIAL INFORMATION
- Determining current maximum probable Depositor
exposure
- Determining current significance Depositor
percentage
- Requesting required financial Depositor
information (including any required
accountants' consent to the use
thereof) or effecting incorporation by
reference
* This information need only be reported
on the Form 10-K if updated
information is required pursuant to
the Item.
REG AB ITEM 1117: LEGAL PROCEEDINGS
Any legal proceeding pending against the
following entities or their respective
property, that is material to
Certificateholders, including any
proceeding known to be contemplated by
I-2-1
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
governmental authorities:
- Issuing Entity (Trust Fund) Trustee, Master Servicer, Securities
Administrator and Depositor
- Sponsor (Seller) Seller (if a party to the Pooling and
Servicing Agreement) or Depositor
- Depositor Depositor
- Trustee Trustee
- Securities Administrator Securities Administrator
- Master Servicer Master Servicer
- Custodian Custodian
- 1110(b) Originator Depositor
- Any 1108(a)(2) Servicer (other than Servicer
the Master Servicer or Securities
Administrator)
- Any other party contemplated by Depositor
1100(d)(1)
REG AB ITEM 1119: AFFILIATIONS AND
RELATIONSHIPS
Whether (a) the Sponsor (Seller), Depositor Depositor as to (a)
or Issuing Entity is an affiliate of the Sponsor/Seller as to (a)
following parties, and (b) to the extent
known and material, any of the following
parties are affiliated with one another:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Trustee
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any "outside the ordinary Depositor as to (a)
course business arrangements" other than Sponsor/Seller as to (a)
would be obtained in an arm's length
transaction between (a) the Sponsor
(Seller), Depositor or Issuing Entity on
the one hand, and (b) any of the following
parties (or their affiliates) on the other
hand, that exist currently or within the
past two years and that are material to a
Certificateholder's understanding of the
Certificates:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
I-2-2
ADDITIONAL FORM 10-K DISCLOSURE
ITEM ON FORM 10-K PARTY RESPONSIBLE
----------------- -----------------
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
Whether there are any specific Depositor as to (a)
relationships involving the transaction or Sponsor/Seller as to (a)
the pool assets between (a) the Sponsor
(Seller), Depositor or Issuing Entity on
the one hand, and (b) any of the following
parties (or their affiliates) on the other
hand, that exist currently or within the
past two years and that are material:
- Master Servicer Master Servicer
- Securities Administrator Securities Administrator
- Trustee Depositor
- Any other 1108(a)(3) servicer Servicer
- Any 1110 Originator Depositor/Sponsor
- Any 1112(b) Significant Obligor Depositor/Sponsor
- Any 1114 Credit Enhancement Provider Depositor/Sponsor
- Any 1115 Derivate Counterparty Depositor/Sponsor
Provider
- Any other 1101(d)(1) material party Depositor/Sponsor
I-2-3
EXHIBIT I-3
FORM 8-K DISCLOSURE INFORMATION
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
ITEM 1.01- ENTRY INTO A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding entry into
or amendment of any definitive agreement
that is material to the securitization,
even if depositor is not a party.
Examples: servicing agreement, custodial
agreement.
Note: disclosure not required as to
definitive agreements that are fully
disclosed in the prospectus
ITEM 1.02- TERMINATION OF A MATERIAL All parties
DEFINITIVE AGREEMENT
Disclosure is required regarding
termination of any definitive agreement
that is material to the securitization
(other than expiration in accordance with
its terms), even if depositor is not a
party.
Examples: servicing agreement, custodial
agreement.
ITEM 1.03- BANKRUPTCY OR RECEIVERSHIP Depositor
Disclosure is required regarding the
bankruptcy or receivership, with respect to
any of the following:
- Sponsor (Seller) Depositor/Sponsor (Seller)
- Depositor Depositor
- Master Servicer Master Servicer
- Affiliated Servicer Servicer
- Other Servicer servicing 20% or more Servicer
of the pool assets at the time of the
report
- Other material servicers Servicer
- Trustee Trustee
- Securities Administrator Securities Administrator
- Significant Obligor Depositor
- Credit Enhancer (10% or more) Depositor
- Derivative Counterparty Depositor
I-3-1
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
- Custodian Custodian
ITEM 2.04- TRIGGERING EVENTS THAT Depositor
ACCELERATE OR INCREASE A DIRECT Master Servicer
FINANCIAL OBLIGATION OR AN OBLIGATION Securities Administrator
UNDER AN OFF-BALANCE SHEET ARRANGEMENT
Includes an early amortization, performance
trigger or other event, including event of
default, that would materially alter the
payment priority/distribution of cash
flows/amortization schedule.
Disclosure will be made of events other
than waterfall triggers which are disclosed
in the monthly statements to the
certificateholders.
ITEM 3.03- MATERIAL MODIFICATION TO Securities Administrator
RIGHTS OF SECURITY HOLDERS Trustee
Depositor
Disclosure is required of any material
modification to documents defining the
rights of Certificateholders, including the
Pooling and Servicing Agreement.
ITEM 5.03- AMENDMENTS OF ARTICLES OF Depositor
INCORPORATION OR BYLAWS;
CHANGE OF FISCAL YEAR
Disclosure is required of any amendment "to
the governing documents of the issuing
entity".
ITEM 6.01- ABS INFORMATIONAL AND Depositor
COMPUTATIONAL MATERIAL
ITEM 6.02- CHANGE OF SERVICER OR Master Servicer/Securities
SECURITIES ADMINISTRATOR Administrator/Depositor/
Servicer/Trustee
Requires disclosure of any removal,
replacement, substitution or addition of
any master servicer, affiliated servicer,
other servicer servicing 10% or more of
pool assets at time of report, other
material servicers or trustee.
Reg AB disclosure about any new servicer or Servicer/Master Servicer/Depositor
master servicer is also required.
Reg AB disclosure about any new Trustee is Trustee
also required.
ITEM 6.03- CHANGE IN CREDIT ENHANCEMENT OR Depositor/Securities Administrator
EXTERNAL SUPPORT
Covers termination of any enhancement in
manner other than by its terms, the
addition of an
I-3-2
FORM 8-K DISCLOSURE INFORMATION
ITEM ON FORM 8-K PARTY RESPONSIBLE
---------------- -----------------
enhancement, or a material change in the
enhancement provided. Applies to external
credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement Depositor
provider is also required.
ITEM 6.04- FAILURE TO MAKE A REQUIRED Securities Administrator
DISTRIBUTION Trustee
ITEM 6.05- SECURITIES ACT UPDATING Depositor
DISCLOSURE
If any material pool characteristic differs
by 5% or more at the time of issuance of
the securities from the description in the
final prospectus, provide updated Reg AB
disclosure about the actual asset pool.
If there are any new servicers or Depositor
originators required to be disclosed under
Regulation AB as a result of the foregoing,
provide the information called for in Items
1108 and 1110 respectively.
ITEM 7.01- REG FD DISCLOSURE All parties
ITEM 8.01- OTHER EVENTS Depositor
Any event, with respect to which
information is not otherwise called for in
Form 8-K, that the registrant deems of
importance to certificateholders.
ITEM 9.01- FINANCIAL STATEMENTS AND Responsible party for reporting/
EXHIBITS disclosing the financial statement or
exhibit
I-3-3
EXHIBIT J
SERVICING CRITERIA TO BE ADDRESSED
IN ASSESSMENT OF COMPLIANCE
(RMBS unless otherwise noted)
KEY: X - obligation
WHERE THERE ARE MULTIPLE CHECKS FOR CRITERIA THE ATTESTING PARTY WILL IDENTIFY
IN ITS MANAGEMENT ASSERTION THAT IT IS ATTESTING ONLY TO THE PORTION OF THE
DISTRIBUTION CHAIN IT IS RESPONSIBLE FOR IN THE RELATED TRANSACTION AGREEMENTS.
CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS
ASSIGNED TO THEM IN THE SALE AND SERVICING AGREEMENT, DATED AS OF JUNE 1, 2007,
AMONG XXXXXXX XXXXX MORTGAGE INVESTORS, INC., AS DEPOSITOR, XXXXX FARGO BANK,
N.A., AS MASTER SERVICER AND SECURITIES ADMINISTRATOR, AND HSBC BANK USA,
NATIONAL ASSOCIATION, AS TRUSTEE.
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------- ------------- --------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted to monitor X X
any performance or other triggers and events of
default in accordance with the transaction
agreements.
1122(d)(1)(ii) If any material servicing activities are X X
outsourced to third parties, policies and
procedures are instituted to monitor the third
party's performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction agreements to N/A N/A
maintain a back-up servicer for the Pool Assets
are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is X
in effect on the party participating in the
servicing function throughout the reporting period
in the amount of coverage required by and
otherwise in accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited into the X X
appropriate custodial bank accounts and related
bank clearing accounts no more than two business
days following receipt, or such other number of
days specified in the transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of X X
an obligor or to an investor are made only by
authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding X
collections, cash flows or distributions, and any
interest or other fees charged for such advances,
are made, reviewed and approved as specified in
the transaction agreements.
1122(d)(2)(iv) The related accounts for the transaction, such as X X
cash reserve accounts or accounts established as a
form of over collateralization, are separately
maintained (e.g., with respect to commingling of
cash) as set forth in the transaction agreements.
J-1
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------- ------------- --------
1122(d)(2)(v) Each custodial account is maintained at a X X
federally insured depository institution as set
forth in the transaction agreements. For purposes
of this criterion, "federally insured depository
institution" with respect to a foreign financial
institution means a foreign financial institution
that meets the requirements of Rule 13k-1(b)(1) of
the Securities Exchange Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis X X
for all asset-backed securities related bank
accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are
(A) mathematically accurate; (B) prepared within
30 calendar days after the bank statement cutoff
date, or such other number of days specified in
the transaction agreements; (C) reviewed and
approved by someone other than the person who
prepared the reconciliation; and (D) contain
explanations for reconciling items. These
reconciling items are resolved within 90 calendar
days of their original identification, or such
other number of days specified in the transaction
agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those to be filed X X
with the Commission, are maintained in accordance
with the transaction agreements and applicable
Commission requirements. Specifically, such
reports (A) are prepared in accordance with
timeframes and other terms set forth in the
transaction agreements; (B) provide information
calculated in accordance with the terms specified
in the transaction agreements; (C) are filed with
the Commission as required by its rules and
regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal
balance and number of Pool Assets serviced by the
Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and X X
remitted in accordance with timeframes,
distribution priority and other terms set forth in
the transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are posted X X
within two business days to the Servicer's
investor records, or such other number of days
specified in the transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the investor X X
reports agree with cancelled checks, or other form
of payment, or custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets is
maintained as required by the transaction
agreements or related pool asset documents.
1122(d)(4)(ii) Pool assets and related documents are safeguarded
as required by the transaction agreements
1122(d)(4)(iii) Any additions, removals or substitutions to the
asset pool are made, reviewed and approved in
accordance with any conditions or requirements in
the transaction agreements.
J-2
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------- ------------- --------
1122(d)(4)(iv) Payments on pool assets, including any payoffs,
made in accordance with the related pool asset
documents are posted to the Servicer's obligor
records maintained no more than two business days
after receipt, or such other number of days
specified in the transaction agreements, and
allocated to principal, interest or other items
(e.g., escrow) in accordance with the related pool
asset documents.
1122(d)(4)(v) The Servicer's records regarding the pool assets
agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's pool assets (e.g., loan modifications or
re-agings) are made, reviewed and approved by
authorized personnel in accordance with the
transaction agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g.,
forbearance plans, modifications and deeds in lieu
of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded
in accordance with the timeframes or other
requirements established by the transaction
agreements.
1122(d)(4)(viii) Records documenting collection efforts are
maintained during the period a pool asset is
delinquent in accordance with the transaction
agreements. Such records are maintained on at
least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring
delinquent pool assets including, for example,
phone calls, letters and payment rescheduling
plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates of return
for pool assets with variable rates are computed
based on the related pool asset documents.
1122(d)(4)(x) Regarding any funds held in trust for an obligor
(such as escrow accounts): (A) such funds are
analyzed, in accordance with the obligor's pool
asset documents, on at least an annual basis, or
such other period specified in the transaction
agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with
applicable pool asset documents and state laws;
and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the
related pool assets, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax
or insurance payments) are made on or before the
related penalty or expiration dates, as indicated
on the appropriate bills or notices for such
payments, provided that such support has been
received by the servicer at least 30 calendar days
prior to these dates, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xii) Any late payment penalties in connection with any
payment to be made on behalf of an obligor are
paid from the Servicer's funds and not charged to
the obligor, unless the late payment was due to
the obligor's error or omission.
J-3
SECURITIES MASTER
REG AB REFERENCE SERVICING CRITERIA ADMINISTRATOR SERVICER
---------------- -------------------------------------------------- ------------- --------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are
posted within two business days to the obligor's
records maintained by the servicer, or such other
number of days specified in the transaction
agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible X
accounts are recognized and recorded in accordance
with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support,
identified in Item 1114(a)(1) through (3) or Item
1115 of Regulation AB, is maintained as set forth
in the transaction agreements.
J-4
EXHIBIT K
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Alternative Note Asset Trust, Series 2007-A1 Mortgage
Pass-Through Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[name of servicing company] (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the [related
servicing agreement] (the "Servicing Agreement") has been made under my
supervision; and
(2) To the best of my knowledge, based on such review, the Servicer has
fulfilled all its obligations under the Servicing Agreement in all material
respects throughout such year or a portion thereof[, or, if there has been a
failure to fulfill any such obligation in any material respect, I have specified
below each such failure known to me and the nature and status thereof].
Date:
----------------
[Servicer]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
K-1
