SUNTRUST [ ] TRUST, SERIES 200[ ]-[__], as Issuing Entity SUNTRUST MORTGAGE SECURITIZATION, LLC, as Depositor [_______________], as Trust Administrator and Master Servicer SUNTRUST MORTGAGE, INC., as Servicer STB REAL ESTATE (GEORGIA), INC., as Seller...
Exhibit
4.5
SUNTRUST
[ ] TRUST, SERIES 200[ ]-[__], as Issuing
Entity
SUNTRUST
MORTGAGE SECURITIZATION, LLC, as Depositor
[_______________],
as Trust Administrator and Master Servicer
SUNTRUST
MORTGAGE, INC., as Servicer
STB
REAL
ESTATE (GEORGIA), INC., as Seller
and
[___________________],
as Indenture Trustee
____________________________
Dated
as
of [_______], 200[ ]
____________________________
SUNTRUST
[ ] TRUST, SERIES 200[ ]-[__]
MORTGAGE-BACKED
NOTES
TABLE
OF
CONTENTS
Page
ARTICLE
I
DEFINITIONS
|
||
Section
1.01.
|
Definitions
|
5
|
Section
1.02.
|
Calculations
With Respect to the Mortgage Loans
|
38
|
Section
1.03.
|
Calculations
With Respect to Accrued Interest
|
38
|
ARTICLE
II
|
||
Section
2.01.
|
Creation
and Declaration of Trust Estate; Conveyance of Initial Mortgage
Loans
|
39
|
Section
2.02.
|
Acceptance
of Trust Estate; Review of Documentation.
|
41
|
Section
2.03.
|
Grant
Clause.
|
43
|
Section
2.04.
|
Subsequent
Transfers.
|
45
|
Section
2.05.
|
Option
to Contribute Derivative Instrument.
|
47
|
ARTICLE
III
|
||
Section
3.01.
|
Representations
and Warranties of the Depositor and the Seller.
|
47
|
Section
3.02.
|
Discovery
of Breach
|
49
|
Section
3.03.
|
Repurchase,
Purchase or Substitution of Mortgage Loans.
|
50
|
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS BY THE SERVICER
|
||
Section
4.01.
|
Seller’s
Engagement of Servicer to Perform Servicing
Responsibilities.
|
51
|
Section
4.02.
|
Servicing
of the Mortgage Loans.
|
52
|
Section
4.03.
|
Payments
To the Master Servicer.
|
64
|
Section
4.04.
|
General
Servicing Procedures.
|
67
|
Section
4.05.
|
Representations,
Warranties and Agreements.
|
70
|
Section
4.06.
|
The
Servicer .
|
76
|
Section
4.07.
|
Termination
for Cause.
|
74
|
Section
4.08.
|
Successor
to Servicer Miscellaneous Provisions.
|
76
|
Section
4.09.
|
Miscellaneous
Servicing Provisions.
|
78
|
ARTICLE
V
ADMINISTRATION
AND MASTER SERVICING OF MORTGAGE LOANS BY THE MASTER SERVICER AND
THE
TRUST ADMINISTRATOR
|
||
Section
5.01.
|
Duties
of the Master Servicer; Representations and Warranties.
|
79
|
i
Section
5.02.
|
Master
Servicer Fidelity Bond and Master Servicer Errors and Omissions
Insurance
Policy.
|
81
|
Section
5.03.
|
Master
Servicer’s Financial Statements and Related Information
|
82
|
Section
5.04.
|
Power
to Act; Procedures.
|
82
|
Section
5.05.
|
Enforcement
of Servicer’s and Master Servicer’s Obligations.
|
83
|
Section
5.06.
|
[Reserved].
|
84
|
Section
5.07.
|
Collection
Account.
|
84
|
Section
5.08.
|
Application
of Funds in the Collection Account.
|
85
|
Section
5.09.
|
Reports
to Indenture Trustee and Noteholders.
|
87
|
Section
5.10.
|
Termination
of Servicer; Successor Servicers.
|
90
|
Section
5.11.
|
Master
Servicer Liable for Enforcement
|
91
|
Section
5.12.
|
Assumption
of Master Servicing by Indenture Trustee.
|
91
|
Section
5.13.
|
[Reserved].
|
91
|
Section
5.14.
|
Release
of Mortgage Files.
|
91
|
Section
5.15.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Indenture Trustee.
|
92
|
Section
5.16.
|
Opinion
|
93
|
Section
5.17.
|
[Reserved].
|
94
|
Section
5.18.
|
[Reserved].
|
94
|
Section
5.19.
|
[Reserved]
|
94
|
Section
5.20.
|
Indenture
Trustee To Retain Possession of Certain Insurance Policies and
Documents
|
94
|
Section
5.21.
|
Compensation
to the Master Servicer
|
94
|
Section
5.22.
|
[Reserved]
|
94
|
Section
5.23.
|
Reports
to the Indenture Trustee.
|
94
|
Section
5.24.
|
Annual
Statement of Compliance with Applicable Servicing
Criteria.
|
95
|
Section
5.25.
|
Assessment
of Compliance and Attestation Reports.
|
95
|
Section
5.26.
|
Merger
or Consolidation.
|
96
|
Section
5.27.
|
97
|
|
Section
5.28.
|
Assignment
or Delegation of Duties by the Master Servicer.
|
97
|
Section
5.29.
|
Limitation
on Liability of the Master Servicer and Others.
|
97
|
Section
5.30.
|
Indemnification;
Third-Party Claims.
|
98
|
Section
5.31.
|
Alternative
Index.
|
98
|
Section
5.32.
|
Transfer
of Servicing.
|
99
|
ARTICLE
VI
|
||
Section
6.01.
|
The
Collection Account.
|
100
|
Section
6.02.
|
Payments
from the Collection Account.
|
100
|
Section
6.03.
|
Net
Swap Payments and Net Swap Receipts.
|
109
|
Section
6.04.
|
Control
of the Trust Account and Deferred Interest.
|
110
|
Section
6.05.
|
Advances
by Master Servicer and Servicer.
|
113
|
Section
6.06.
|
Pre-Funding
Account.
|
114
|
Section
6.07.
|
Establishment
of Basis Risk Reserve Account.
|
115
|
ii
ARTICLE
VII
ADMINISTRATION
OF THE AGREEMENTS
|
||
Section
7.01.
|
Duties
of the Trust Administrator.
|
115
|
Section
7.02.
|
Duties
of the Trust Administrator With Respect to the Indenture, the Trust
Agreement and this Agreement.
|
117
|
Section
7.03.
|
Records.
|
118
|
Section
7.04.
|
Compensation.
|
118
|
Section
7.05.
|
Additional
Information to be Furnished to the Issuing Entity.
|
118
|
Section
7.06.
|
Independence
of the Trust Administrator.
|
118
|
Section
7.07.
|
No
Joint Venture.
|
118
|
Section
7.08.
|
Other
Activities of Trust Administrator and the Depositor.
|
119
|
Section
7.09.
|
Resignation
and Removal of Trust Administrator.
|
119
|
Section
7.10.
|
Action
upon Termination, Resignation or Removal of the Trust
Administrator.
|
120
|
ARTICLE
VIII
|
||
Section
8.01.
|
Master
Servicer Events of Default; Indenture Trustee To Act; Appointment
of
Successor.
|
120
|
Section
8.02.
|
Additional
Remedies of Indenture Trustee Upon Event of Default.
|
124
|
Section
8.03.
|
Waiver
of Defaults.
|
125
|
Section
8.04.
|
Notification
to Holders.
|
125
|
Section
8.05.
|
Directions
by Noteholders and Duties of Indenture Trustee During Master Servicer
Event of Default.
|
125
|
Section
8.06.
|
Action
Upon Certain Failures of the Master Servicer and Upon Master Servicer
Event of Default.
|
125
|
Section
8.07.
|
Preparation
of Reports.
|
126
|
ARTICLE
IX
TERMINATION
|
||
Section
9.01.
|
130
|
|
Section
9.02.
|
Termination
Prior to Maturity Date; and Optional Redemption.
|
131
|
Section
9.03.
|
Certain
Notices upon Final Payment.
|
131
|
Section
9.04.
|
Beneficiaries.
|
132
|
ARTICLE
X
MISCELLANEOUS
PROVISIONS
|
||
Section
10.01.
|
Binding
Nature of Agreement; Assignment.
|
132
|
Section
10.02.
|
Entire
Agreement.
|
132
|
Section
10.03.
|
Amendment.
|
132
|
Section
10.04.
|
Acts
of Noteholders.
|
133
|
Section
10.05.
|
Recordation
of Agreement.
|
133
|
iii
Section
10.06.
|
Governing
Law.
|
134
|
Section
10.07.
|
Notices.
|
134
|
Section
10.08.
|
Severability
of Provisions.
|
135
|
Section
10.09.
|
Indulgences;
No Waivers.
|
135
|
Section
10.10.
|
Headings
Not To Affect Interpretation.
|
136
|
Section
10.11.
|
Benefits
of Agreement.
|
136
|
Section
10.12.
|
Special
Notices to the Rating Agencies.
|
136
|
Section
10.13.
|
Counterparts.
|
137
|
Section
10.14.
|
Execution
by the Issuing Entity.
|
137
|
iv
ATTACHMENTS
Exhibit
A- 1
|
Form
of Initial Certification
|
Exhibit
A-2
|
Form
of Interim Certification
|
Exhibit
A-3
|
Form
of Final Certification
|
Exhibit
A-4
|
Form
of Endorsement
|
Exhibit
B-1
|
Form
of Swap Agreement
|
Exhibit
B-2
|
[RESERVED]
|
Exhibit
C
|
Form
of Lost Note Affidavit
|
Exhibit
D
|
Custodial
Agreement
|
Exhibit
E
|
Custodial
Account Letter Agreement
|
Exhibit
F
|
Escrow
Account Letter Agreement
|
Exhibit
G-1
|
Form
of Monthly Remittance Advice
|
Exhibit
G-2
|
Standard
Layout For Monthly Defaulted Loan Report
|
Exhibit
G-3
|
Form
332 Realized Loss Report
|
Exhibit
H
|
JPM
Form of Sarbanes Back-up Certification
|
Exhibit
I
|
Form
of Subsequent Transfer Agreement
|
Exhibit
J
|
Subsequent
Mortgage Loan Criteria
|
Exhibit
K
|
Xxxxxx
Xxx Guide Announcement 95-19
|
Exhibit
L
|
Relevant
Servicing Criteria
|
Exhibit
M-1
|
Additional
10-D Disclosure
|
Exhibit
M-2
|
Additional
10-K Disclosure
|
Exhibit
M-3
|
Additional
8-K Disclosure
|
Exhibit
M-4
|
Additional
Disclosure Notification
|
Schedule
A
|
Mortgage
Loan Schedule
|
v
This
TRANSFER AND SERVICING AGREEMENT, dated as of [___________], 200[ ] (the
“Agreement” or the “Transfer and Servicing Agreement”), is by and among SUNTRUST
[ ] TRUST, SERIES 200[ ]-[__], a Delaware
statutory trust, as issuing entity (the “Issuing Entity”), SUNTRUST MORTGAGE
SECURITIZATION, LLC, a Delaware limited liability company, as depositor (the
“Depositor”), [_________________], as indenture trustee (the “Indenture
Trustee”), [_____________], as trust administrator (the “Trust Administrator”)
and master servicer (the “Master Servicer”), SUNTRUST MORTGAGE, INC., as
servicer (the “Servicer”) and STB REAL ESTATE (GEORGIA), INC., as seller (the
“Seller”).
Depository
Agreement, the Indenture and the Trust Agreement being hereinafter referred
to
collectively as the “Related Agreements”);
The
following table sets forth (or describes) the Class designation, Interest
Rate,
initial Class Principal Amount and minimum denomination for each Class of
Notes
issued pursuant to the Indenture.
Class
Designation
|
Interest
Rate
|
Initial
Security
Principal
Amount
|
Minimum
Denominations
|
Class
1-A
|
(1)
|
$
|
|
Class
2-A1
|
(2)
|
$
|
|
Class
2-A2
|
(3)
|
$
|
|
Class
2-A3
|
(4)
|
$
|
|
Class
M1
|
(5)
|
$
|
|
Class
M2
|
(6)
|
$
|
|
Class
M3
|
(7)
|
$
|
|
Class
M4
|
(8)
|
$
|
|
Class
M5
|
(9)
|
$
|
|
Class
M6
|
(10)
|
$
|
|
Class
M7
|
(11)
|
$
|
(1)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class 1-A Notes is the per annum rate equal to
the least
of (i) LIBOR plus ____% per annum, (ii) the Available Funds Rate
and (iii)
the Fixed Rate Cap for such Payment Date; provided, that the per
annum
rate calculated pursuant to clause (i) above with respect to the
Class 1-A
Notes will be equal to LIBOR plus ____% per annum beginning on
the Stepup
Date and each Payment Date thereafter.
|
2
(2)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class 2-A1 Notes is the per annum rate equal to
the least
of (i) LIBOR plus ____% per annum, (ii) the Available Funds Rate
and (iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class 2-A1 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(3)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class 2-A2 Notes is the per annum rate equal to
the least
of (i) LIBOR plus ____% per annum, (ii) the Available Funds Rate
and (iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class 2-A2 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(4)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class 2-A3 Notes is the per annum rate equal to
the least
of (i) LIBOR plus [____]% per annum, (ii) the Available Funds Rate
and
(iii) the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class 2-A3 Notes will be equal to LIBOR plus [____]%.
|
(5)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M1 Notes is the per annum rate equal to the
least of
(i) LIBOR plus 0.430% per annum, (ii) the Available Funds Rate
and (iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M1 Notes will be equal to LIBOR plus [____]% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(6)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M2 Notes is the per annum rate equal to the
least of
(i) LIBOR plus ____% per annum, (ii) the Available Funds Rate and
(iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M2 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(7)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M3 Notes is the per annum rate equal to the
least of
(i) LIBOR plus ____% per annum, (ii) the Available Funds Rate and
(iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M3 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(8)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M4 Notes is the per annum rate equal to the
least of
(i) LIBOR plus ____% per annum, (ii) the Available Funds Rate and
(iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M4 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
3
(9)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M5 Notes is the per annum rate equal to the
least of
(i) LIBOR plus____% per annum, (ii) the Available Funds Rate and
(iii) the
Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M5 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(10)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M6 Notes is the per annum rate equal to the
least of
(i) LIBOR plus ____% per annum, (ii) the Available Funds Rate and
(iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M6 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
(11)
|
The
Interest Rate with respect to any Payment Date (and the related
Accrual
Period) for the Class M7 Notes is the per annum rate equal to the
least of
(i) LIBOR plus ____% per annum, (ii) the Available Funds Rate and
(iii)
the Fixed Rate Cap for such Payment Date; provided, that
the per
annum rate calculated pursuant to clause (i) above with respect
to the
Class M7 Notes will be equal to LIBOR plus ____% per annum beginning
on
the Stepup Date and each Payment Date thereafter.
|
4
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions. The
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
Accountant: A
Person engaged in the practice of accounting who (except when this Agreement
provides that an Accountant must be Independent) may be employed by or
affiliated with the Depositor or an Affiliate of the Depositor.
Accounts: Any
or all of the Custodial Accounts, Escrow Accounts, Collection Account, Basis
Risk Reserve Account, Pre-Funding Account and any other accounts created
or
maintained by the Trust Administrator or the Servicer pursuant to this
Agreement.
Accrual
Period: With respect to any Payment Date and any Class of
Notes, the period beginning on the Payment Date in the calendar month
immediately preceding the month in which the related Payment Date occurs
(or, in
the case of the first Payment Date, beginning on the Closing Date) and ending
on
the day immediately preceding the related Payment Date.
Addition
Notice: The notice given pursuant to Section 2.04 with respect
to the transfer of Subsequent Mortgage Loans to the Trust pursuant to such
Section.
Additional
Form 10-D
Disclosure: has the meaning set forth in Section
8.7(b)(i).
Additional
Form 10-K
Disclosure: has the meaning set forth in Section
8.07(c)(ii).
Additional
Servicer: means (i) each affiliated servicer meeting the
requirements of Item 1108(a)(2)(ii) of Regulation AB that Services any of
the
Mortgage Loans, and (ii) each unaffiliated servicer meeting the requirements
of
Item 1108(a)(2)(iii) of Regulation AB (other than the Trustee), who Services
10%
or more of the Mortgage Loans.
Advance: With
respect to each Servicer Remittance Date and each Mortgage Loan, an amount
equal
to the Scheduled Payment (with the interest portion of such Scheduled Payment
adjusted to the Net Mortgage Rate) that was due on the Mortgage Loan on the
Due
Date in the related Due Period, and that (i) was delinquent at the close
of
business on the related Determination Date and (ii) was not the subject of
a
previous Monthly Advance, but only to the extent that such amount is expected,
in the reasonable judgment of the Servicer or Master Servicer, as applicable,
to
be recoverable from collections or other recoveries in respect of such Mortgage
Loan.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the
5
ownership
of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
Aggregate
Collateral
Balance: As of any date of determination (other than the
Closing Date), an amount equal to the Aggregate Loan Balance plus the amount,
if
any, then on deposit in the Pre-Funding Account exclusive of investment
income. As of the Closing Date, an amount equal to the sum of the
Aggregate Loan Balance as of the Initial Cut-off Date and the amount on deposit
in the Pre-Funding Account as of the Closing Date.
Aggregate
Expense
Rate: With respect to any Mortgage Loan, the sum of the
applicable Servicing Administration Fee Rate and the applicable Master Servicing
Fee Rate.
Aggregate
Loan
Balance: As of any date of determination, an amount equal to
the aggregate of the Stated Principal Balances of the Mortgage Loans as of
such
date.
Aggregate
Overcollateralization Release Amount: With respect to any
Payment Date, the lesser of (x) the sum of the Principal Funds of each Mortgage
Group for such Payment Date and (y) the amount, if any, by which (1) the
Overcollateralization Amount for such Payment Date (calculated for this purpose
on the basis of the assumption that 100% of the aggregate of the Principal
Funds
of both Mortgage Groups for such date is applied on such Payment Date in
reduction of the aggregate of the Note Principal Amounts of the related Notes)
exceeds (2) the Targeted Overcollateralization Amount for such Payment
Date.
Agreement: This
Agreement and all amendments and supplements hereto.
Ancillary
Income: All income derived from the Mortgage Loans, excluding
Servicing Administration Fees and Master Servicing Fees attributable to the
Mortgage Loans and other amounts treated as payment proceeds of the Mortgage
Loans, including but not limited to, late charges, fees received with respect
to
checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other incidental
fees and charges.
Appraised
Value: With respect to any Mortgage Loan, the amount set forth
in an appraisal made in connection with the origination of such Mortgage
Loan as
the value of the related Mortgaged Property.
Assignment
of
Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument, in recordable form, sufficient under the laws of the
jurisdiction wherein the related Mortgaged Property is located to reflect
the
assignment of the Mortgage to the Indenture Trustee for the benefit of
Noteholders and the Swap Counterparty, which assignment, notice of transfer
or
equivalent instrument may be in the form of one or more blanket assignments
covering the Mortgage Loans secured by Mortgaged Properties located in the
same
jurisdiction, if permitted by law; provided, however, that
neither the Issuing Entity nor the Indenture Trustee shall be responsible
for
determining whether any such assignment is in recordable form.
Authorized
Officer: Any Person who may execute an Officer’s Certificate
on behalf of the Issuing Entity.
6
Available
Funds
Rate: With respect to any Payment Date and for any Class of
Notes, a per annum rate equal to the quotient of (a) the excess, if any,
of (1)
the sum of (A) Interest Funds for Group 1 and (B) Interest Funds for
Group 2, over (2) any Net Swap Payments payable to the Swap Counterparty
for
such Payment Date pursuant to Section 6.02(b)(i) or Section 6.02(c)(i) hereof,
as applicable, divided by (b) the product of (i) the sum of the Class Principal
Amounts of the Class 1-A, Class 2-A1, Class 2-A2, Class 2-A3, Class M1, Class
M2, Class M3, Class M4, Class M5, Class M6 and Class M7 Notes before taking
into
account any payments of principal on such Payment Date, and (ii) a fraction,
the
numerator of which is the actual number of days in the related Accrual Period
and the denominator of which is 360.
Available
Funds
Shortfall: With respect to any Class of Notes and any Payment
Date, the sum of (a) the excess, if any, of (i) the amount that would have
been
the Current Interest for such Class had the Interest Rate for such Class
been
determined without regard to the Available Funds Rate over (ii) the actual
amount of Current Interest for such Class, plus (b) any excess described
in
clause (a) above and interest described in clause (c) below for any prior
Payment Date that remains unpaid, plus (c) interest accrued during the Accrual
Period related to such Payment Date on the amount described in clause (b)
above
at the Interest Rate applicable to such Class, determined without regard
to the
Available Funds Rate.
Bankruptcy: As
to any Person, the making of an assignment for the benefit of creditors,
the
filing of a voluntary petition in bankruptcy, adjudication as a bankrupt
or
insolvent, the entry of an order for relief in a bankruptcy or insolvency
proceeding, the seeking of reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief, or seeking, consenting
to or acquiescing in the appointment of a trustee, receiver or liquidator,
dissolution, or termination, as the case may be, of such Person pursuant
to the
provisions of either the United States Bankruptcy Code of 1986, as amended,
or
any other similar state laws.
Bankruptcy
Code: The United States Bankruptcy Code of 1986, as
amended.
Basis
Risk Reserve
Account: A separate account established and maintained by the
Trust Administrator for the benefit of the Noteholders pursuant to Section
6.07.
Benefit
Plan Opinion:
An Opinion of Counsel satisfactory to the Owner Trustee and the Certificate
Registrar to the effect that any proposed transfer of Certificates will not
(i)
cause the assets of the Trust Estate to be regarded as plan assets for purposes
of the Plan Asset Regulations or (ii) give rise to any fiduciary duty on
the
part of the Depositor or the Indenture Trustee.
Book-Entry
Notes: As defined in the Indenture.
Business
Day: Any day other than (i) a Saturday or a Sunday, or
(ii) a day on which banking and savings and loan institutions, in
(a) the states of New York, Virginia and Georgia, (b) the state in
which the Servicer’s servicing operations are located, or (c) the state in
which the Indenture Trustee’s and Trust Administrator’s operations are located,
are authorized or obligated by law or executive order to be closed.
Certificate: The
Ownership Certificate.
Certificateholder: Any
registered holder of the Ownership Certificate.
7
Certificate
Registrar: As defined in the Trust Agreement, the initial
Certificate Registrar shall be the Trust Administrator.
Certification
Parties: has the meaning set forth in Section
8.07(c)(v).
Certifying
Person: has the meaning set forth in Section
8.07(c)(v).
Civil
Relief
Act: The Servicemembers Civil Relief Act, as such may be
amended from time to time, and any similar state laws.
Class: All
Notes bearing the same class designation.
Class
A
Notes: Collectively, the Class 1-A, Class 2-A1, Class 2-A2 and
Class 2-A3 Notes.
Class
M
Notes: Collectively, the Class M1, Class M2, Class M3, Class
M4, Class M5, Class M6 and Class M7 Notes.
Class
Principal
Amount: With respect to each Class of Notes, the aggregate of
the Note Principal Amounts of all Notes of such Class at the date of
determination.
Clearing
Agency: An organization registered as a “clearing agency”
pursuant to Section 17A of the Exchange Act, as amended. As of the
Closing Date, the Clearing Agency shall be The Depository Trust
Company.
Closing
Date: [ ],
200[ ].
Code: The
Internal Revenue Code of 1986, as amended, and as it may be further amended
from
time to time, any successor statutes thereto, and applicable U.S. Department
of
Treasury regulations issued pursuant thereto in temporary or final
form.
Collateral: As
defined in the Indenture.
Collection
Account: A separate account established and maintained by the
Trust Administrator pursuant to Section 5.07.
Commission: means
the U.S. Securities and Exchange Commission.
Compensating
Interest
Payment: With respect to any Payment Date, an amount equal to
the lesser of (x) the aggregate Prepayment Interest Shortfall Amount with
respect to such Payment Date and (y) the Servicing Administration Fee payable
to
the Servicer, or, to the extent provided in Section 5.21, the aggregate Master
Servicing Fee payable to the Master Servicer, with respect to the Master
Servicer, each in respect of such Payment Date.
Condemnation
Proceeds: All awards of settlements in respect of a Mortgaged
Property, whether permanent or temporary, partial or entire, by exercise
of the
power of eminent domain or condemnation, to the extent not required to be
released to a Mortgagor in accordance with the terms of the related Mortgage
Loan documents.
8
Controlling
Person: means, with respect to any Person, any other Person
who “controls” such Person within the meaning of the Securities
Act.
Conventional
Loan: A Mortgage Loan that is not insured by the United States
Federal Housing Administration or guaranteed by the United States Department
of
Veterans Affairs.
Corporate
Trust
Office: With respect to (i) the Trust Administrator, the
principal corporate trust office of the Trust Administrator at which, at
any
particular time, its corporate trust business shall be administered, which
office at the date of execution of this Agreement for purposes of transfers
and
exchanges and for presentment and surrender of the Notes and for payment
thereof
is located at [_________________________], and for all other purposes is
located
at [_________________________]; (ii) the Certificate Registrar, the
principal office of the Certificate Registrar at which at any particular
time
its corporate trust business shall be administered, which office at the date
of
execution of this Agreement is located at the Corporate Trust Office of the
Trust Administrator, or at such other address as the Certificate Registrar
may
designate from time to time by notice to the Noteholder, the Trust and the
Swap
Counterparty, or the principal corporate trust office of any successor
Certificate Registrar at the address designated by such successor Certificate
Registrar by notice to the Noteholders, the Trust and the Swap Counterparty;
and
(iii) the Indenture Trustee, the principal office of the Indenture Trustee
at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this Agreement is located
at [_________________________], or at such other address as the
Indenture Trustee may designate from time to time by notice to the Noteholders,
the Trust and the Swap Counterparty, or the principal corporate trust office
of
any successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders, the Trust and the Swap
Counterparty.
Current
Interest: With respect to any Class of Notes and any Payment
Date, will equal the aggregate amount of interest accrued at the applicable
Interest Rate during the related Accrual Period on the Class Principal Amount
of
such Class immediately prior to such Payment Date, provided, however,
that for any Class
of Class M Notes and for any Payment Date, Current Interest shall be reduced
by
the amount specified in clause (a) of the definition of Deferred Interest
(calculated for purposes of this definition with the imposition of the Available
Funds Rate), if any, for such Class and Payment Date.
Custodial
Account: The separate custodial account (other than an Escrow
Account) established and maintained by the Servicer pursuant to Section 4.02(d)
of this Agreement.
Custodial
Agreement: The custodial agreement relating to the custody of
certain of the Mortgage Loans, substantially in the form attached as Exhibit
D
hereto, between the Custodian, the Issuing Entity and the Indenture Trustee,
as
acknowledged by the Seller, the Depositor, the Master Servicer, the Trust
Administrator, and the Servicer, dated as of [_____________], 200[
].
Custodian: The
custodian appointed by the Indenture Trustee pursuant to the Custodial
Agreement, and any successor thereto. The initial Custodian is
[_____________].
9
Cut-off
Date: With respect to the Initial Mortgage Loans, the Initial
Cut-off Date, and with respect to the Subsequent Mortgage Loans, the Subsequent
Cut-off Date.
Cut-off
Date
Balance: With respect to the Initial Mortgage Loans, the
Aggregate Loan Balance as of the Initial Cut-off Date.
Debt
Service
Reduction: With respect to any Mortgage Loan, a reduction of
the Scheduled Payment that the related Mortgagor is obligated to pay on any
Due
Date as a result of any proceeding under Bankruptcy law or any similar
proceeding.
Deferred
Interest: For any Class of Class M Notes and any Payment Date,
the sum of (a) the aggregate amount of interest accrued at the applicable
Interest Rate (determined without regard to the Available Funds Rate) during
the
related Accrual Period on the Principal Deficiency Amount for the Class,
(b) any
amounts due pursuant to clause (a) and interest described in clause (c) below
for such Class for prior Payment Dates that remain unpaid and (c) interest
accrued during the Accrual Period related to such Payment Date on the amount
in
clause (b) at the Interest Rate applicable to such Class determined without
regard to the Available Funds Rate.
Definitive
Note: A Note of any Class issued in definitive, fully
registered, certificated form.
Deleted
Mortgage
Loan: A Mortgage Loan that is repurchased from the Trust
Estate pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted therefor.
Depositor: SunTrust
Mortgage Securitization, LLC, a Delaware limited liability company and its
successors in interest.
Depository
Agreement: The agreement dated [_____________], 200[ ], among
the Issuing Entity, the Indenture Trustee and The Depository Trust Company,
as
the initial Clearing Agency, relating to the Book-Entry Notes.
Determination
Date: With respect to each Payment Date, the 15th day of the
month in which such Payment Date occurs, or, if such 15th day is not a Business
Day, the next succeeding Business Day.
Due
Date: The day of the calendar month on which the Scheduled
Payment is due on a Mortgage Loan, exclusive of any days of
grace. Pursuant to Section 4.02(d), with respect to any Mortgage
Loans for which payment from the Mortgagor is due on a day other than the
first
day of the month, such Mortgage Loans will be treated as if the Scheduled
Payment is due on the first day of the immediately succeeding
month.
Due
Period: With respect to any Payment Date and Mortgage Loan,
the period commencing on the second day of the month immediately preceding
the
month in which such Payment Date occurs and ending on the first day of the
month
in which such Payment Date occurs.
10
Eligible
Account: Either (i) an account or accounts maintained with a
federal or state chartered depository institution or trust company that complies
with the definition of Eligible Institution or (ii) an account or accounts
the
deposits in which are insured by the FDIC to the limits established by such
corporation, provided that any such deposits not so insured shall be maintained
in an account at a depository institution or trust company whose commercial
paper or other short term debt obligations (or, in the case of a depository
institution or trust company which is the principal subsidiary of a holding
company, the commercial paper or other short term debt or deposit obligations
of
such holding company or depository institution, as the case may be) have
been
rated by each Rating Agency in its highest short-term rating category, or
(iii)
a segregated trust account or accounts (which shall be a “special deposit
account”) maintained with the Indenture Trustee, the Trust Administrator or any
other federal or state chartered depository institution or trust company,
acting
in its fiduciary capacity, in a manner acceptable to the Indenture Trustee
and
the Rating Agencies. Eligible Accounts may bear
interest.
Eligible
Institution: Any of the following:
(i) An
institution whose:
(1) commercial
paper, short-term debt obligations, or other short-term deposits are rated
at
least “A-1+” or long-term unsecured debt obligations are rated at least “Aa-” by
S&P (or assigned comparable ratings by the other Rating Agencies), if the
amounts on deposit are to be held in the account for no more than 365 days;
or
(2) commercial
paper, short-term debt obligations, demand deposits, or other short-term
deposits are rated at least “A-2” by S&P (or assigned comparable ratings by
the other Rating Agencies), if the amounts on deposit are to be held in the
account for no more than 30 days and are not intended to be used as credit
enhancement. Upon the loss of the required rating set forth in this
clause (ii), the accounts shall be transferred immediately to accounts which
have the required rating. Furthermore, commingling by the Servicer is
acceptable at the A-2 rating level if the Servicer is a bank, thrift or
depository and provided the Servicer has the capability to immediately segregate
funds and commence remittance to an Eligible Deposit Account upon a downgrade;
or
(ii) the
corporate trust department of a federal depositor institution or state-chartered
depositor institution subject to regulations regarding fiduciary funds on
deposit similar to Title 12 of the U.S. Code of Federal Regulation Section
9.10(b), which, in either case, has corporate trust powers and is acting
in its
fiduciary capacity.
Eligible
Investments: At any time, any one or more of the following
obligations and securities:
(i)
obligations of the United States or any agency thereof, provided such
obligations are backed by the full faith and credit of the United
States;
(ii)
general obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term debt rating
of each
11
Rating
Agency, or such lower rating as will not result in the downgrading or withdrawal
of the ratings then assigned to the Notes by either Rating Agency;
(iii)
commercial or finance company paper which is then receiving the highest
commercial or finance company paper rating of each Rating Agency, or such
lower
rating as will not result in the downgrading or withdrawal of the ratings
then
assigned to the Notes by either Rating Agency;
(iv)
certificates of deposit, demand or time deposits, or bankers’ acceptances issued
by any depository institution or trust company incorporated under the laws
of
the United States or of any state thereof and subject to supervision and
examination by federal and/or state banking authorities, provided that the
commercial paper and/or long term unsecured debt obligations of such depository
institution or trust company are then rated in one of the two highest long-term
and the highest short-term ratings of each Rating Agency for such securities,
or
such lower ratings as will not result in the downgrading or withdrawal of
the
rating then assigned to the Notes by either Rating Agency;
(v)
demand or time deposits or certificates of deposit issued by any bank or
trust
company or savings institution to the extent that such deposits are fully
insured by the FDIC and are then rated in the highest long-term and the highest
short-term ratings of each Rating Agency for such securities, or such lower
ratings as will not result in the downgrading or withdrawal of the ratings
then
assigned to the Notes by either Rating Agency;
(vi)
guaranteed reinvestment agreements issued by any bank, insurance company
or
other corporation containing, at the time of the issuance of such agreements,
such terms and conditions as will not result in the downgrading or withdrawal
of
the rating then assigned to the Notes by either Rating Agency;
(vii)
repurchase obligations with respect to any security described in clauses
(a) and
(b) above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (d) above;
(viii)
securities (other than stripped bonds, stripped coupons or instruments sold
at a
purchase price in excess of 115% of the face amount thereof) bearing interest
or
sold at a discount issued by any corporation incorporated under the laws
of the
United States or any state thereof which, at the time of such investment,
have
the highest rating of each Rating Agency, or such lower rating as will not
result in the downgrading or withdrawal of the rating then assigned to the
Notes
by either Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency;
(ix)
units of a taxable money market portfolio having the highest rating assigned
by
each Rating Agency and restricted to obligations issued or guaranteed by
the
United States of America or entities whose obligations are backed by the
full
faith and credit of the United States of America and repurchase agreements
collateralized by such obligations;
12
(x)
any mutual fund, money market fund, common trust fund or other pooled investment
vehicle, the assets of which are limited to instruments that otherwise would
constitute Permitted Investments hereunder, including any such fund that
is
managed by the Trust Administrator or Master Servicer or any affiliate of
the
Trust Administrator or Master Servicer or for which the Trust Administrator
or
Master Servicer or any affiliate of the Trust Administrator or Master Servicer
acts as an adviser as long as such fund is rated in the highest rating category
by each Rating Agency, if so rated; and
(xi)
such other investments bearing interest or sold at a discount acceptable
to each
Rating Agency as will not result in the downgrading or withdrawal of the
rating
then assigned to the Notes by either Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
provided
that no
instrument described hereunder shall (i) evidence the right to receive only
interest with respect to the obligations underlying such instrument, (ii)
be
sold or disposed of before its maturity or (iii) be any obligation of the
Servicer or any of its Affiliates. Any Permitted Investment shall be
relatively risk free and no options or voting rights shall be exercised with
respect to any Permitted Investment. Any Permitted Investment shall
be sold or disposed of in accordance with Statement of Financial Accounting
Standards No. 140, paragraph 35c(6), in effect as of the Closing
Date.
Entitlement
Holder: The meaning specified in Section 8-102(a)(7) of the
New York UCC.
Entitlement
Order: The meaning specified in Section 8-102(a)(8) of the New
York UCC (i.e.,
generally, orders directing the transfer or redemption of any Financial
Asset).
Environmental
Problem
Property: A Mortgaged Property or REO Property that is in
violation of any environmental law, rule or regulation.
ERISA: The
Employee Retirement Income Security Act of 1974, as amended.
Errors
and Omissions
Insurance: Errors and Omissions Insurance to be maintained by
the Servicer in accordance with Section 4.02(m).
Errors
and Omission
Insurance Policy: Any Errors and Omission Insurance policy
required to be obtained by the Servicer satisfying the requirements of this
Agreement.
Escrow
Account: The separate escrow account (other than a Custodial
Account) established and maintained by the Servicer pursuant to Section 4.02(f)
of this Agreement.
Escrow
Payments: With respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed
by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other
document.
Event
of
Default: A Servicer Event of Default.
13
Excess
Funding
Amount: The amount remaining on deposit in the Pre-Funding
Account at the end of the Pre-Funding Period, exclusive of investment
income.
Exchange
Act: means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
Xxxxxx
Xxx or
FNMA: Xxxxxx Mae, a federally chartered and privately owned
corporation organized and existing under the Federal National Mortgage
Association Charter Act, or any successor thereto.
FDIC: The
Federal Deposit Insurance Corporation or any successor thereto.
Fidelity
Bond: Any fidelity bond to be maintained by the Servicer in
accordance with Section 4.02(m).
Financial
Asset: The meaning specified in Section 8-102(a) of the New
York UCC.
Fitch: Fitch
Ratings, or any successor in interest.
Fixed
Rate
Cap: With respect to a Payment Date, the per annum rate equal
to [_________]%.
Form
8-K Disclosure
Information: has the meaning set forth in Section
8.07(d)(i).
Xxxxxxx
Mac or
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III
of the
Emergency Home Finance Act of 1970, as amended, or any successor
thereto.
Xxxxxx
Mae or
GNMA: The Government National Mortgage Association, a wholly
owned corporate instrumentality of the United States within HUD.
Group
Balance: With respect to each Mortgage Group and any Payment
Date, the aggregate of the Stated Principal Balances of the Mortgage Loans
in
such Mortgage Group.
Group
1: The portion of the Mortgage Pool identified as Group
1.
Group
1
Percentage: With respect to Group 1 and any Payment Date, the
fraction, expressed as a percentage, the numerator of which is the Group
Balance
for Group 1 for such date and the denominator of which is the Aggregate
Collateral Balance for such date.
Group
2: The portion of the Mortgage Pool identified as Group
2.
Group
2
Percentage: With respect to Group 2 and any Payment Date, the
fraction, expressed as a percentage, the numerator of which is the Group
Balance
for Group 2 for such date and the denominator of which is the Aggregate
Collateral Balance for such date.
Guidelines: As
defined in Section 4.02(t).
14
Holder
or Noteholder: The
registered holder of any Note or Ownership Certificate as recorded on the
books
of the Note Registrar or the Certificate Registrar except that, solely for
the
purposes of taking any action or giving any consent pursuant to this Agreement,
any Note registered in the name of the Depositor, the Master Servicer, the
Servicer, the Trust Administrator or the Indenture Trustee or any Affiliate
thereof (unless any such Person owns 100% of a Class) shall be deemed not
to be
outstanding in determining whether the requisite percentage necessary to
effect
any such consent has been obtained, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such consent, only
Notes and an Ownership Certificate which a Responsible Officer of the Indenture
Trustee knows to be so held shall be disregarded. The Indenture
Trustee may request and conclusively rely on certifications by the Depositor
in
determining whether any Note, or Ownership Certificate are registered to
an
Affiliate of the Depositor.
HUD: The
United States Department of Housing and Urban Development, or any successor
thereto.
Indenture: The
Indenture dated as of [__________], 200[ ], among the Issuing Entity, the
Trust
Administrator and the Indenture Trustee, as such may be amended or supplemented
from time to time.
Indenture
Events of
Default: As defined in Section 5.01 of the
Indenture.
Indenture
Trustee: [__________________________], not in its individual
capacity but solely as Indenture Trustee, or any successor in
interest.
Independent: means,
when used with respect to any accountants, a Person who is “independent” within
the meaning of Rule 2-01(B) of the Securities and Exchange Commission’s
Regulation S-X. Independent means, when used with respect to any
other Person, a Person who (A) is in fact independent of another specified
Person and any affiliate of such other Person, (B) does not have any material
direct or indirect financial interest in such other Person or any affiliate
of
such other Person, (C) is not connected with such other Person or any affiliate
of such other Person as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (D) is not a
member
of the immediate family of a Person defined in clause (B) or (C)
above.
Index: The
index specified in the related Mortgage Note for calculation of the Mortgage
Rate thereof.
Initial
Cut-off
Date: [________________], 200[ ].
Initial
Mortgage
Loans: The Mortgage Loans included in the Trust as of the
Closing Date.
Initial
Mortgage Loan
Schedule: The schedule of Initial Mortgage Loans included in
the Trust as of the Closing Date.
Insurance
Policy: Any primary mortgage insurance policy, any standard
hazard insurance policy, flood insurance policy, earthquake insurance policy
or
title insurance policy
15
relating
to the Mortgage Loans or the Mortgaged Properties, to be in effect as of
the
Closing Date or thereafter during the term of this Agreement.
Insurance
Proceeds: With respect to each Mortgage Loan, proceeds of
insurance policies insuring the Mortgage Loan or the related Mortgaged Property,
if applicable, including the proceeds of any hazard or flood insurance policy
reduced by expenses incurred by the Servicer in connection with procuring
such
proceeds, applied to the restoration and repair of the related Mortgaged
Property or to be paid to the related Mortgagor pursuant to the Mortgage
Note or
applicable state law.
Interest
Funds: With respect to each Mortgage Group and any Payment
Date, (a) the sum of, without duplication, (1) all interest collected (other
than the interest portion of Payaheads and Prepayment Premiums) or advanced
in
respect of Scheduled Payments on the Mortgage Loans in such Mortgage Group
during the related Due Period by the Servicer, the Master Servicer or the
Indenture Trustee (solely in its capacity as successor Master Servicer),
minus, (x) to the extent
provided under Sections 4.02(e)(3) and (4) and Sections 5.08(i) and (ii)
herein,
previously unreimbursed Advances and Nonrecoverable Advances due to the
Servicer, the Master Servicer or the Indenture Trustee (solely in its capacity
as successor master servicer) to the extent allocable to interest and the
allocable portion of previously unreimbursed Servicing Advances with respect
to
the Mortgage Loans in such Mortgage Group, (y) the Servicing Administration
Fee
and Master Servicing Fee with respect to such Mortgage Loans in such Mortgage
Group and (z) any fees and expenses of any Custodian with respect to the
Mortgage Loans in such Mortgage Group to the extent not paid by the Seller
or
its Affiliates, (2) any Compensating Interest Payments or payments in respect
of
Prepayment Interest Shortfalls paid by the Master Servicer pursuant to Section
5.21 with respect to the related Prepayment Period with respect to the Mortgage
Loans in such Mortgage Group, (3) the portion of any Purchase Price or
Substitution Amount paid with respect to the Mortgage Loans in such Mortgage
Group during the related Prepayment Period allocable to interest, (4) all
Net
Liquidation Proceeds, Insurance Proceeds and any other recoveries collected
with
respect to the Mortgage Loans in such Mortgage Group during the related
Prepayment Period, to the extent allocable to interest and (5) such Mortgage
Group’s pro rata share
of any Net Swap Receipts paid by the Swap Counterparty in respect of the
Swap
Agreement, as reduced by (a) such Mortgage Group’s pro rata share
of: (i) the Owner Trustee Fee, (ii) any costs, expenses or
liabilities reimbursable or otherwise due to the Master Servicer, Servicer,
the
Indenture Trustee, any Custodian, the Owner Trustee or the Trust Administrator
to the extent provided in this Agreement, the Trust Agreement, the Indenture
and
any Custodial Agreement and (iii) any other fees and expenses payable from
amounts on deposit in the Collection Account and any of the Custodial Accounts
and (b) the Group 1 Percentage or Group 2 Percentage, as applicable, of any
Net
Swap Payment for such Payment Date and any swap termination amounts paid
to the
Swap Counterparty in the event that the Issuing Entity is a defaulting party
or
affected party under the terms of the Swap Agreement, in each case, to the
extent paid from amounts on deposit in the Collection Account .
Interest
Margin: For each Class of Notes, for any Payment Date on or
before the Stepup Date, the following per annum rate: Class 1-A,
[____]%; Class 2-A1, [____]%; Class 2-A2,[____]%; Class 2-A3, [____]%; Class
M1,
[____]%; Class M2, [____]%; Class M3, [____]%; Class M4, [____]%; Class M5,
[____]%; Class M6, [____]% and Class M7, [____]% and on any Payment Date
following the Stepup Date: Class 1-A, [____]%; Class
2-A1,
16
[____]%;
Class 2-A2, [____]%; Class 2-A3, [____]%; Class M1, [____]%; Class M2, [____]%;
Class M3, [____]%; Class M4, [____]%; Class M5, [____]%; Class M6, [____]%;
and
Class M7, [____]%.
Interest
Rate: With respect to each Class of Notes on any Payment Date,
the least of (1) LIBOR plus the Interest Margin for such Class, (2) the
Available Funds Rate and (3) the Fixed Rate Cap.
Intervening
Assignments: The original intervening assignments of the
Mortgage, notices of transfer or equivalent instrument.
Issuing
Entity: The Delaware statutory trust known as the “SunTrust
[ ] Trust, Series 200[ ]-[__].”
Issuing
Entity Order
or Issuing Entity
Request: A written order or request signed in the name of the
Issuing Entity by any one of its Authorized Officers and delivered to the
Indenture Trustee.
LIBOR: With
respect to the first Accrual Period, the per annum rate of
[ ]%. With respect to each subsequent Accrual
Period, a per annum rate determined on the LIBOR Determination Date in the
following manner by the Trust Administrator on the basis of the “Interest
Settlement Rate” set by the British Bankers’ Association (the “BBA”) for
one-month United States dollar deposits, as such rates appear on Reuters
Screen
LIBOR 01, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.
(b) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Reuters Screen LIBOR 01 as of 11:00 a.m. (London time), or
if the
Reuters Screen LIBOR 01 is not available on such date, the Trust Administrator
will determine such rate on the basis of the offered rates of the Reference
Banks for one-month United States dollar deposits, as such rates appear on
the
Reuters Screen LIBO Page, as of 11:00 a.m. (London time) on such LIBOR
Determination Date.
(c) If
LIBOR
is determined under clause (b) above, on each LIBOR Determination Date, LIBOR
for the related Accrual Period for the Notes will be established by the Trust
Administrator as follows:
(1) If
on
such LIBOR Determination Date two or more Reference Banks provide such offered
quotations, LIBOR for the related Accrual Period for the Notes shall be the
arithmetic mean of such offered quotations (rounded upwards if necessary
to the
nearest whole multiple of
[ ]%).
(2) If
on
such LIBOR Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(x) LIBOR as determined on the previous LIBOR Determination Date and (y)
the
Reserve Interest Rate.
17
(d) The
establishment of LIBOR by the Trust Administrator and the Trust Administrator’s
subsequent calculation of the Interest Rate applicable to the LIBOR Notes
for
the relevant Accrual Period, in the absence of manifest error, will be final
and
binding.
LIBOR
Business
Day: Any day on which banks in London, England and The City of
New York are open and conducting transactions in foreign currency and
exchange.
LIBOR
Determination
Date: The second LIBOR Business Day immediately preceding the
commencement of each Accrual Period for any LIBOR Notes.
LIBOR
Note: Any Class 1-A, Class 2-A1, Class 2-A2, Class 2-A3, Class
M1, Class M2, Class M3, Class M4, Class M5, Class M6 or Class M7.
Liquidated
Mortgage
Loan: Any defaulted Mortgage Loan as to which the Master
Servicer or the Servicer, as applicable, has determined that all amounts
that it
expects to recover from or on account of such Mortgage Loan have been
recovered.
Liquidation
Expenses: Expenses that are incurred by the Master Servicer or
the Servicer, as applicable, in connection with the liquidation of any defaulted
Mortgage Loan and are not recoverable under the applicable primary mortgage
insurance policy, if any, including, without limitation, foreclosure and
rehabilitation expenses, legal expenses and unreimbursed amounts, if any,
expended pursuant to Sections 4.18 or 4.23.
Liquidation
Proceeds: Cash received in connection with the liquidation of
a defaulted Mortgage Loan, whether through the sale or assignment of such
Mortgage Loan, trustee’s sale, foreclosure sale, payment in full, discounted
payoff or otherwise, or the sale of the related REO Property, if the Mortgaged
Property is acquired in satisfaction of the Mortgage Loan.
M1
Principal Deficiency
Amount: With respect to any Payment Date, the lesser of (a)
the excess, if any, of (1) the Total Principal Deficiency Amount over (2)
the
sum of (i) the M2 Principal Deficiency Amount, (ii) the M3 Principal Deficiency
Amount, (iii) the M4 Principal Deficiency Amount, (iv) the M5 Principal
Deficiency Amount, (v) the M6 Principal Deficiency Amount, and (vi) the M7 Principal
Deficiency
Amount, in each case for that Payment Date and (b) the Class Principal
Amount of the Class M1 Notes immediately prior to such Payment
Date.
M1
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes, in each case after giving effect to
payments on such Payment Date and (ii) the Class Principal Amount of the
Class
M1 Notes immediately prior to such Payment Date over (y) the M1 Target
Amount.
M1
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Aggregate Collateral Balance for such
Payment Date determined as of the last day of the related Due Period over
(ii)
[____]% of the Aggregate Collateral Balance as of the Closing Date.
18
M2
Principal Deficiency
Amount: With respect to any Payment Date, the lesser of (a)
the excess, if any, of (1) the Total Principal Deficiency Amount over (2)
the
sum of (i) the M3 Principal Deficiency Amount, (ii) the M4 Principal Deficiency
Amount, (iii) the M5 Principal Deficiency Amount, (iv) the M6 Principal
Deficiency Amount, (v) the M7 Principal Deficiency Amount, in each case for that Payment
Date and (b) the Class Principal Amount of the Class M2 Notes immediately
prior to such Payment Date.
M2
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes and the Class M1 Notes, in each case
after
giving effect to payments on such Payment Date and (ii) the Class Principal
Amount of the Class M2 Notes immediately prior to such Payment Date over
(y) the
M2 Target Amount.
M2
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Aggregate Collateral Balance for such
Payment Date determined as of the last day of the related Due Period over
(ii)
[____]% of the Aggregate Collateral Balance as of the Closing Date.
M3
Principal Deficiency
Amount: With respect to any Payment Date, the lesser of (a)
the excess, if any, of (1) the Total Principal Deficiency Amount over (2)
the
sum of (i) the M4 Principal Deficiency Amount, (ii) the M5 Principal Deficiency
Amount, (iii) the M6 Principal Deficiency Amount, and (iv) the M7 Principal
Deficiency Amount, in each case
for that Payment Date and (b) the Class Principal Amount of the Class M3
Notes immediately prior to such Payment Date.
M3
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes and the Class M1 and Class M2 Notes,
in
each case after giving effect to payments on such Payment Date and (ii) the
Class Principal Amount of the Class M3 Notes immediately prior to such Payment
Date over (y) the M3 Target Amount.
M3
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Aggregate Collateral Balance for such
Payment Date determined as of the last day of the related Due Period over
(ii)
[____]% of the Aggregate Collateral Balance as of the Closing Date.
M4
Principal Deficiency
Amount: With respect to any Payment Date, the lesser of (a)
the excess, if any, of (1) the Total Principal Deficiency Amount over (2)
the
sum of (i) the M5 Principal Deficiency Amount, (ii) the M6 Principal Deficiency
Amount, and (iii) the M7 Principal Deficiency Amount, in each case for that
Payment Date, and (b) the Class Principal Amount of the Class M4 Notes
immediately prior to such Payment Date.
19
M4
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes and the Class M1, Class M2 and Class
M3
Notes, in each case after giving effect to payments on such Payment Date
and
(ii) the Class Principal Amount of the Class M4 Notes immediately prior to
such
Payment Date over (y) the M4 Target Amount.
M4
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Aggregate Collateral Balance for such
Payment Date determined as of the last day of the related Due Period over
(ii)
[____]% of the Aggregate Collateral Balance as of the Closing Date.
M5
Principal Deficiency
Amount: With respect to any Payment Date, the lesser of (a)
the excess, if any, of (1) the Total Principal Deficiency Amount over (2)
the
sum of (i) the M6 Principal Deficiency Amount and (ii) the M7 Principal
Deficiency Amount, in each case
for that Payment Date and (b) the Class Principal Amount of the Class M5
Notes immediately prior to such Payment Date.
M5
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes and the Class M1, Class M2, Class M3
and
Class M4 Notes, in each case after giving effect to payments on such Payment
Date and (ii) the Class Principal Amount of the Class M5 Notes immediately
prior
to such Payment Date over (y) the M5 Target Amount.
M5
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Aggregate Collateral Balance for such
Payment Date determined as of the last day of the related Due Period over
(ii)
[____]% of the Aggregate Collateral Balance as of the Closing Date.
M6
Principal Deficiency
Amount: With respect to any Payment Date, the lesser of (a)
the excess, if any, of the Total Principal Deficiency Amount over the M7
Principal Deficiency Amount, in each case for that Payment Date and (b) the
Class Principal Amount of the Class M6 Notes immediately prior to such Payment
Date.
M6
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes and the Class M1, Class M2, Class M3,
Class
M4 and Class M5 Notes, in each case after giving effect to payments on such
Payment Date and (ii) the Class Principal Amount of the Class M6 Notes
immediately prior to such Payment Date over (y) the M6 Target
Amount.
M6
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Xxxxxxxxx
00
Xxxxxxxxxx
Xxxxxxx for such Payment Date determined as of the last day of the related
Due
Period over (ii) [____]% of the Aggregate Collateral Balance as of the Closing
Date.
M7
Principal
Deficiency Amount: With respect to any
Payment
Date, the lesser of (a) the Total Principal Deficiency Amount, and (b) the
Class
Principal Amount of the Class M7 Notes immediately prior to such Payment
Date.
M7
Principal Payment
Amount: With respect to any Payment Date on or after the
Stepdown Date and as long as a Trigger Event is not in effect with respect
to
such Payment Date, the excess of (x) the sum of (i) the aggregate Class
Principal Amount of the Senior Notes and the Class M1, Class M2, Class M3,
Class
M4, Class M5 and Class M6 Notes, in each case after giving effect to payments
on
such Payment Date and (ii) the Class Principal Amount of the Class M7 Notes
immediately prior to such Payment Date over (y) the M7 Target
Amount.
M7
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) [____]% and (ii) the Aggregate Collateral
Balance for such Payment Date determined as of the last day of the related
Due
Period and (b) the excess of (i) the Aggregate Collateral Balance for such
Payment Date determined as of the last day of the related Due Period over
(ii)
[____]% of the Aggregate Collateral Balance as of the Closing Date.
Majority
Noteholders: Until such time as the sum of the Class Principal
Amounts of all Classes of Notes has been reduced to zero, the holder or holders
of in excess of [____]% of the aggregate Class Principal Amount of all Classes
of Notes (accordingly, the holder of the Ownership Certificate shall be excluded
from any rights or actions of the Majority Noteholders during such period);
and
thereafter, the holder of the Ownership Certificate.
Master
Servicer: [_____________], or any successor in interest, or if
any successor master servicer shall be appointed as herein provided, then
such
successor master servicer.
Master
Servicer Event of
Default: Any one of the conditions or circumstances enumerated
in Section 8.01(a).
Master
Servicing
Fee: As to any Payment Date, an amount equal to the product of
(i) one-twelfth of the Master Servicing Fee Rate and (ii) the Aggregate
Collateral Balance as of the first day of the related Due Period.
Master
Servicing Fee
Rate: With respect to each Mortgage Loan, [____]% per
annum.
Material
Defect: With respect to any Mortgage Loan, as defined in
Section 2.02(c) hereof.
Maturity
Date: With respect to any Class of Notes, the Payment Date in
[__________], 20__.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, or any successor
in interest thereto.
21
MERS
Mortgage
Loan: Any Mortgage Loan as to which the related Mortgage, or
an Assignment of Mortgage, has been or will be recorded in the name of MERS,
as
nominee for the holder from time to time of the Mortgage Note.
Monthly
Excess
Cashflow: For any Payment Date, the sum of (i) Monthly Excess
Interest, (ii) any Principal Payment Amount for Group 1 and Group 2 pursuant
to
Section 6.02(e)(i)(1)(R) and 6.02(e)(i)(2)(R), respectively, or 6.02(e)(ii)(17),
as applicable, and (iii) the Aggregate Overcollateralization Release Amount
for
such Payment Date.
Monthly
Excess
Interest: For any Payment Date, an amount equal any Interest
Funds for Group 1 and Group 2 remaining after application pursuant to subclauses
(i) through (xiv) of Section 6.02(d).
Moody’s: Xxxxx’x
Investors Service, Inc., or any successor in interest.
Mortgage: A
mortgage, deed of trust or other instrument encumbering a fee simple interest
in
real property securing a Mortgage Note, together with improvements
thereto.
Mortgage
File: The mortgage documents listed in Section 2.01(b)
pertaining to a particular Mortgage Loan required to be delivered to the
Indenture Trustee pursuant to this Agreement.
Mortgage
Group: Any of Group 1 or Group 2.
Mortgage
Impairment
Insurance Policy: A mortgage impairment or blanket hazard
insurance policy to be maintained by the Servicer in accordance with Section
5.02(l).
Mortgage
Index: The Six-Month LIBOR Index and the Treasury Mortgage
Index, as specified for any Mortgage Loan in the Mortgage Loan
Schedule.
Mortgage
Loan: A mortgage loan that is conveyed to the Issuing Entity
pursuant to this Agreement on the Closing Date, with respect to the Initial
Mortgage Loans, and on each Subsequent Transfer Date, with respect to the
Subsequent Mortgage Loans, which mortgage loan includes, without limitation,
the
mortgage loan documents, the Scheduled Payments, Principal Prepayments,
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, any related
REO
Property, REO Disposition Proceeds, and all other rights, benefits, proceeds
and
obligations arising from or in connection with such mortgage
loan. The Initial Mortgage Loans subject to this Agreement are
identified on the Initial Mortgage Loan Schedule annexed hereto as Schedule
A
and have an aggregate Stated Principal Balance as of the Initial Cut-off
Date of
$[________________]. The Subsequent Mortgage Loans subject to this
Agreement will be identified on each Subsequent Mortgage Loan Schedule to
be
annexed hereto as Schedule A on each Subsequent Transfer Date.
Mortgage
Loan Purchase
Agreement: The mortgage loan purchase agreement dated as of
[_______________], 200[ ], for the sale of the Mortgage Loans by the Seller
to
the Depositor.
Mortgage
Loan Remittance
Rate: With respect to each Mortgage Loan, the Mortgage Rate
minus the Servicing Administration Fee Rate.
22
Mortgage
Loan
Schedule: Each Initial Mortgage Loan Schedule and any
Subsequent Mortgage Loan Schedule attached hereto as Schedule A, which shall
identify each Mortgage Loan, as such schedule may be amended from time to
time
to reflect the addition of Mortgage Loans to, or the deletion of Mortgage
Loans
from, the Trust Estate. Such schedule shall set forth, among other
things, the following information with respect to each Mortgage
Loan: (i) the Mortgage Loan identifying number; (ii) the original
principal balance of the Mortgage Loan; (iii) the Mortgage Rate at origination;
(iv) the Mortgage Index; (v) the first Mortgage Rate adjustment date; (vi)
the
monthly payment of principal and interest at origination; (vii) the Servicing
Administration Fee Rate; (viii) the Master Servicer Fee Rate and (ix) whether
such Mortgage Loan is subject to a Prepayment Premium for voluntary prepayments
by the Mortgagor, the term during which such Prepayment Premiums are imposed
and
the method of calculation of the Prepayment Premium. The Servicer
shall be responsible for providing the Indenture Trustee and the Master Servicer
with all amendments to the Mortgage Loan Schedule.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage under a Mortgage Loan.
Mortgage
Pool: The aggregate of all the Mortgage Loans.
Mortgage
Rate: As to any Mortgage Loan, the per annum rate at which
interest accrues on such Mortgage Loan, as determined under the related Mortgage
Note as reduced by the applications of the Civil Relief Act.
Mortgaged
Property: The fee simple interest in real property, together
with improvements thereto including any exterior improvements to be completed
within 120 days of disbursement of the related Mortgage Loan
proceeds.
Mortgagor: The
obligor on a Mortgage Note.
Net
Liquidation
Proceeds: With respect to any Liquidated Mortgage Loan, the
related Liquidation Proceeds received and retained in connection with the
liquidation of such Mortgage Loan net of (i) Liquidation Expenses and (ii)
any
related unreimbursed Advances and Servicing Advances, if any.
Net
Mortgage
Rate: With respect to any Mortgage Loan, the Mortgage Rate
thereof reduced by the Aggregate Expense Rate for such Mortgage
Loan.
Net
Swap
Payment: With respect to the second Business Day prior to any
Calculation Period End Date, the amount paid by the Trust under the Swap
Agreement to the Swap Counterparty in excess of the amounts received by the
Trust from the Swap Counterparty, as calculated by the Swap Counterparty
and
reported to the Trust Administrator.
Net
Swap
Receipt: With respect to the second Business Day prior to any
Calculation Period End Date, the amount received by the Trust under the Swap
Agreement from the Swap Counterparty in excess of the amount paid by the
Trust
to the Swap Counterparty, as calculated by the Swap Counterparty and reported
to
the Trust Administrator.
23
Non-MERS
Mortgage
Loan: Any Mortgage Loan other than a MERS Mortgage
Loan.
Nonrecoverable
Advance: Any Servicing Advance or Monthly Advance previously
made or proposed to be made in respect of a Mortgage Loan by the Servicer
or the
Master Servicer as successor servicer which, in the reasonable discretion
of the
Servicer will not or, in the case of a proposed Servicing Advance or Monthly
Advance, would not, ultimately be recoverable by the Servicer from the related
Mortgagor, related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, REO Disposition Proceeds or otherwise. The determination by
the Servicer that all or a portion of a Servicing Advance or Monthly Advance
would be a Nonrecoverable Advance shall be evidenced by an Officer’s Certificate
delivered to the Master Servicer setting forth such determination and a
reasonable explanation thereof.
Note: As
defined in the Indenture.
Note
Principal
Amount: With respect to any Note, the initial principal amount
thereof on the Closing Date, less the amount of all principal payments
previously paid with respect to such Note.
Note
Register and
Note
Registrar: As defined in the Indenture.
Offering
Document: The Prospectus.
Officer’s
Certificate: A certificate signed by the Chairman of the
Board, any Vice Chairman, the President, any Senior Vice President, any Vice
President or any Assistant Vice President of a Person.
Operative
Agreements: The Trust Agreement, the Certificate of Trust of
the Issuing Entity, this Agreement, the Mortgage Loan Purchase Agreement,
the
Indenture, the Custodial Agreement and each other document contemplated by
any
of the foregoing to which the Depositor, the Seller, the Master Servicer,
the
Servicer, the Owner Trustee, the Trust Administrator, the Indenture Trustee
or
the Issuing Entity is a party.
Opinion
of
Counsel: A written opinion of counsel, reasonably acceptable
in form and substance to the Seller, the Trust Administrator, the Swap
Counterparty, the Indenture Trustee and/or the Master Servicer, as
applicable (each such opinion letter to include such Swap Counterparty as
an
addressee thereof), and who may be in-house or outside counsel to the Seller,
the Servicer, the Depositor, the Master Servicer, the Trust Administrator
or the
Indenture Trustee; provided, however,
with respect
to any such opinion of counsel concerning federal income tax or ERISA matters,
such counsel must be Independent outside counsel and nationally recognized
as
expert in the tax or ERISA aspects, as applicable, of asset
securitization.
Original
Loan-to-Value
Ratio: With respect to any Mortgage Loan, the ratio of the
principal balance of such Mortgage Loan at origination, or such other date
as is
specified, to the Original Value of the related Mortgaged Property.
Original
Value: The lesser of (a) the Appraised Value of a Mortgaged
Property at the time the related Mortgage Loan was originated and (b) if
the
Mortgage Loan was made to
24
finance
the acquisition of the related Mortgaged Property, the purchase price paid
for
the Mortgaged Property by the Mortgagor at the time the related Mortgage
Loan
was originated.
Overcollateralization
Amount: With respect to any Payment Date will be equal to the
amount, if any, by which (x) the Aggregate Collateral Balance for such Payment
Date exceeds (y) the aggregate Class Principal Amount of the Notes, in each
case
after giving effect to payments on such Payment Date.
Overcollateralization
Deficiency Amount: With respect to any Payment Date, the
excess, if any, of the Targeted Overcollateralization Amount for that Payment
Date over the Overcollateralization Amount for that Payment Date.
Ownership
Certificate: An equity certificate representing a 100%
undivided beneficial ownership interest in the Trust, substantially in the
form
attached as part of Exhibit A to the Trust Agreement.
Ownership
Certificate
Holder: The holder of the Ownership Certificate.
Owner
Trustee: [_______________________], and any successor in
interest, not in its individual capacity, but solely as owner trustee under
the
Trust Agreement.
Owner
Trustee
Fee: The annual fee of
$[ ], payable to the Owner Trustee pursuant
to the Fee Letter Agreement specified in Section 7.03 of the Trust Agreement
on
a monthly basis on each Payment Date during the term of this Agreement; provided
that the Owner Trustee Fee for the first year shall be payable on the Closing
Date by the Seller.
Payahead: With
respect to any Mortgage Loan and any Due Date therefor, any Scheduled Payment
received by the Servicer during any Due Period in addition to the Scheduled
Payment due on such Due Date, intended by the related Mortgagor to be applied
on
a subsequent Due Date or Due Dates.
Paying
Agent: As defined in the Indenture. The initial
Paying Agent shall be the Trust Administrator.
Payment
Date: The 25th day of each month or, if such 25th day is not a
Business Day, the next succeeding Business Day, commencing in [________],
200[
]. The initial Payment Date is [________], 200[ ].
PCAOB: means
the Public Company Accounting Oversight Board.
Percentage
Interest: With respect to any Note and the Ownership
Certificate, the Percentage Interest evidenced thereby shall equal (i) with
respect to the Ownership Certificate, the Percentage Interest on the face
of
such certificate or (ii) with respect to any Note, the initial Note Principal
Amount thereof, divided by the initial Class Principal Amount of all Notes
of
the same Class.
25
Person: Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Plan: An
employee benefit plan or other retirement arrangement which is subject to
Section 406 of ERISA and/or Section 4975 of the Code or any entity whose
underlying assets include such plan’s or arrangement’s assets by reason of their
investment in the entity.
Plan
Asset
Regulations: The Department of Labor regulations set forth in
29 C.F.R. 2510.3-101.
Pool
1
Subaccount: A subaccount of the Pre-Funding Account that
contains funds to be used to purchase Subsequent Mortgage Loans for Group
1.
Pool
2
Subaccount: A subaccount of the Pre-Funding Account that
contains funds to be used to purchase Subsequent Mortgage Loans for Group
2.
Pre-Funding
Account: The account established by the Trust Administrator
for the benefit of Noteholders, which consists of the Pool 1 Subaccount and
the
Pool 2 Subaccount, into which the Seller is required to deposit or cause
to be
deposited an amount equal to $[________________] and $[________________],
respectively, on the Closing Date.
Pre-Funding
Period: The period from Closing Date through and including
[_________], 200[ ], during which the Seller may transfer Subsequent Mortgage
Loans to the Trust.
Prepayment
Interest Excess
Amount: For any Servicer Remittance Date and any Principal
Prepayment in full received during the portion of the related Prepayment
Period
occurring from and including the first day through the fifteenth day of the
calendar month in which such Servicer Remittance Date occurs, an amount equal
to
interest (to the extent received) due in connection with such Principal
Prepayment.
Prepayment
Interest
Shortfall Amount: With respect to any Payment Date and (x) any
Principal Prepayment in part during the preceding calendar month or (y) any
Principal Prepayment in full from the sixteenth day of the preceding calendar
month through the end of such calendar month, the amount, if any, by which
one
month’s interest at the Net Mortgage Rate for such Mortgage Loan on the amount
of such Principal Prepayment exceeds the amount of interest received from
such
Mortgagor in respect of such Principal Prepayment.
Prepayment
Period: With respect to any Payment Date and any Principal
Prepayment other than Principal Prepayment in part by a Mortgagor, the period
beginning from and including the sixteenth day of the month preceding the
month
in which such Payment Date occurs to and including the fifteenth day of the
month in which such Payment Date occurs. With respect to any Payment
Date and any Principal Prepayment in part by a Mortgagor, the calendar month
immediately preceding the month in which such Payment Date occurs.
Prepayment
Premiums: Any prepayment fees and penalties to be paid by the
Mortgagor on a Mortgage Loan in the case of a full or partial voluntary
prepayment of such Mortgage Loan during the related Prepayment
Period.
26
Prime
Rate: The prime rate of the United States money center
commercial banks as published in The Wall Street
Journal, Northeast Edition.
Principal
Deficiency
Amount: Any of the M1 Principal Deficiency Amount, the M2
Principal Deficiency Amount, the M3 Principal Deficiency Amount, the M4
Principal Deficiency Amount, the M5 Principal Deficiency Amount, the M6
Principal Deficiency Amount and the M7 Principal Deficiency Amount,
Principal
Funds: With respect to any Payment Date and for each Mortgage
Group, (a) the sum of (i) all principal collected (other than the principal
portion of Payaheads) or advanced in respect of Scheduled Payments on the
Mortgage Loans in such Mortgage Group during the related Due Period whether
by
the Servicer, the Master Servicer or the Indenture Trustee (less unreimbursed
Advances and Nonrecoverable Advances due to the Master Servicer, the Servicer,
or the Indenture Trustee, solely in its capacity as successor Master Servicer,
with respect to such Mortgage Group) and any unreimbursed Servicing Advances,
in
each case, to the extent allocable to principal and to the extent provided
under
Sections 4.02(e)(3) and (4) and Sections 5.08(i) and (ii)), (ii) all Principal
Prepayments in full or in part received during the related Prepayment Period
on
the Mortgage Loans in such Mortgage Group, (iii) the Stated Principal Balance
of
each Mortgage Loan in such Mortgage Group that was purchased from the Trust
Estate, during the related Prepayment Period, (iv) the portion of any
Substitution Amount paid with respect to any Deleted Mortgage Loan relating
to a
Mortgage Loan in such Mortgage Group during the related Prepayment Period
allocable to principal, (v) all Net Liquidation Proceeds, Insurance Proceeds,
REO Disposition Proceeds and other Recoveries collected with respect to such
Mortgage Loans in such Mortgage Group during the related Prepayment Period,
to
the extent allocable to principal, as reduced by (b) such
Mortgage Group’s pro
rata share of: other costs, expenses or liabilities
reimbursable to the Indenture Trustee, the Owner Trustee, the Custodian,
the
Trust Administrator, the Master Servicer and the Servicer to the extent provided
in this Agreement, the Trust Agreement, the Indenture and the Custodial
Agreement and to the extent not reimbursed from Interest Funds, or otherwise
and
(vi) with respect to the [__________], 200[ ] Payment Date, the amount remaining
in such Mortgage Group’s Subaccount of the Pre-Funding Account at the end of the
Pre- Funding Period in respect of that Mortgage Group, exclusive of investment
income.
Principal
Payment
Amount: With respect to each Mortgage Group and for any
Payment Date, an amount equal to the Principal Funds for such Mortgage Group
for
such date minus the Aggregate Overcollateralization Release Amount attributable
to such Mortgage Group, if any, and such Payment Date.
Principal
Prepayment: Any payment or other recovery of principal on a
Mortgage Loan including any payment or other recovery of principal in connection
with the repurchase of a Mortgage Loan by the Seller, the Servicer or any
other
Person received in advance of such Mortgage Loan’s scheduled Due
Date.
Proceeding: Any
suit in equity, action at law or other judicial or administrative
proceeding.
Property
Changes: As defined in Section 4.02(i).
27
Prospectus: The
prospectus supplement dated [__________], 200[ ], together with the accompanying
prospectus dated [__________], 200[ ], relating to the Class 1-A, Class 2-A1,
Class 2-A2, Class 2-A3, Class M1, Class M2, Class M3, Class M4, Class M5,
Class
M6 and Class M7.
Purchase
Price: With respect to the purchase of a Mortgage Loan or
related REO Property pursuant to this Agreement, an amount equal to the sum
of
(a) 100% of the unpaid principal balance of such Mortgage Loan, (b) accrued
interest thereon at the applicable Mortgage Rate, from the date as to which
interest was last paid to (but not including) the Due Date in the Due Period
during which such Mortgage Loan or REO Property is being so purchased; (c)
the
fair market value of the REO Property and all other property being purchased;
(d) .any unreimbursed Servicing Advances with respect to such Mortgage Loan;
and
(e) any costs and damages incurred by the Trust Estate associated with any
violation of applicable federal, state or local anti-predatory or anti-abusive
lending laws with respect to the related Mortgage Loan. The Master
Servicer and the Servicer shall be reimbursed from the Purchase Price for
any
Mortgage Loan or related REO Property for any Advances made or other amounts
advanced with respect to such Mortgage Loan that are reimbursable to the
Master
Servicer or the Servicer under this Agreement, together with any accrued
and
unpaid Servicing Administration Fee and Master Servicing Fee with respect
to
such Mortgage Loan.
Qualified
GIC: A guaranteed investment contract or surety bond providing
for the investment of funds in the Collection Account and insuring a minimum,
fixed or floating rate of return on investments of such funds, which contract
or
surety bond shall:
(i) be
an
obligation of an insurance company or other corporation whose long-term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories,
and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(ii) provide
that the Indenture Trustee may exercise all of the rights under such contract
or
surety bond without the necessity of taking any action by any other
Person;
(iii) provide
that if at any time the then current credit standing of the obligor under
such
guaranteed investment contract is such that continued investment pursuant
to
such contract of funds would result in a downgrading of any rating of the
Notes,
the Indenture Trustee shall terminate such contract without penalty and be
entitled to the return of all funds previously invested thereunder, together
with accrued interest thereon at the interest rate provided under such contract
to the date of delivery of such funds to the Indenture Trustee;
(iv) provide
that the Indenture Trustee’s interest therein shall be transferable to any
successor trustee hereunder; and
28
(v) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Collection Account not later than the Business Day prior to any Payment
Date.
Qualified
Insurer: An insurance company duly qualified as such under the
laws of the states in which the related Mortgaged Properties are located,
duly
authorized and licensed in such states to transact the applicable insurance
business and to write the insurance provided and whose claims paying ability
is
rated by each Rating Agency in its highest rating category or whose selection
as
an insurer will not adversely affect the rating of the Notes.
Qualified
REIT
Subsidiary: A direct or indirect 100% owned subsidiary of a
REIT that satisfies the requirements of Section 856(i) of the Code.
Qualifying
Substitute
Mortgage Loan: In the case of a Mortgage Loan substituted for
a Deleted Mortgage Loan pursuant to the terms of this Agreement, a Mortgage
Loan
that, on the date of such substitution, (i) has an outstanding Stated Principal
Balance (or in the case of a substitution of more than one mortgage loan
for a
Deleted Mortgage Loan, an aggregate Stated Principal Balance), after application
of all Scheduled Payments due during or prior to the month of substitution,
not
in excess of, and not more than 5% less than, the outstanding Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) has a Mortgage Rate not less than,
and not more than 0.50% higher than, the Mortgage Rate on the Deleted Mortgage
Loan, (iii) if applicable, has a maximum Mortgage Rate not less than the
maximum
Mortgage Rate on the Deleted Mortgage Loan, (iv) has a minimum Mortgage Rate
not
less than the minimum Mortgage Rate of the Deleted Mortgage Loan, (v) has
a
gross margin equal to or greater than the gross margin of the Deleted Mortgage
Loan, (vi) has a next adjustment date not later than the next adjustment
date on
the Deleted Mortgage Loan, (vii) has the same Due Date as the Deleted Mortgage
Loan, (viii) has a remaining stated term to maturity not longer than 18 months
and not more than 18 months shorter than the remaining stated term to maturity
of the related Deleted Mortgage Loan, (ix) is current as of the date of
substitution, (x) has a Loan-to-Value Ratio as of the date of substitution
equal
to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as
of such
date, (xi) has been underwritten by the Seller in accordance with the same
underwriting criteria and guidelines as the Deleted Mortgage Loan, (xii)
has a
risk grading determined by the Seller at least equal to the risk grading
assigned on the Deleted Mortgage Loan, (xiii) is secured by the same property
type as the Deleted Mortgage Loan, (xiv) conforms to each representation
and
warranty applicable to the Deleted Mortgage Loan made in the Mortgage Loan
Purchase Agreement, (xv) has the same first lien position as the Deleted
Mortgage Loan, (xvi) is covered by a primary mortgage insurance policy if
the
Deleted Mortgage Loan was so covered, (xvii) contains provisions covering
the
payment of Prepayment Premium by the Mortgager for early prepayment of the
Mortgage Loan at least as favorable to the Trust as the Deleted Mortgage
Loan,
(xviii) has a maturity date not later than the maturity date of the latest
maturing Mortgage Loan in the Mortgage Pool as of the Closing Date, (xix)
has
the same Mortgage Index as the Deleted Mortgage Loan, (xx) if originated
on or
after November 27, 2003, is not a “high cost” loan subject to the New Jersey
Home Ownership Security Act of 2003 and (xxi) if originated on or after January
1, 2004 is not a “high-cost” loan subject to the New Mexico Home Loan Protection
Act. In the event that one or more mortgage loans are substituted for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the
29
basis
of
aggregate Stated Principal Balances, the Mortgage Rates described in clause
(ii)
hereof shall be determined on the basis of weighted average Mortgage Rates,
the
risk gradings described in clause (xii) hereof shall be satisfied as to each
such mortgage loan, the terms described in clause (viii) hereof shall be
determined on the basis of weighted average remaining term to maturity, the
Loan-to-Value Ratios described in clause (x) hereof shall be satisfied as
to
each such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (xiv) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
Rating
Agency: Each of Xxxxx’x, S&P and Fitch.
Realized
Loss: With respect to each Liquidated Mortgage Loan, an amount
equal to (i) the unpaid principal balance of such Mortgage Loan as of the
date
of liquidation, minus (ii) Liquidation Proceeds received, to the extent
allocable to principal, net of amounts that are reimbursable therefrom to
the
Master Servicer or the Servicer with respect to such Mortgage Loan (other
than
Advances of principal) including Liquidation Expenses. In determining
whether a Realized Loss is a Realized Loss of principal, Liquidation Proceeds
shall be allocated, first, to payment of Liquidation Expenses, then to accrued
unpaid interest and finally to reduce the principal balance of the Mortgage
Loan.
Record
Date: With respect to each Payment Date and each Class of
Notes, the Business Day prior to the related Payment Date, and with respect
to
any Class of Definitive Notes, the last Business Day of the month immediately
preceding the month in which the Payment Date occurs (or, in the case of
the
first Payment Date, the Closing Date).
Recovery: With
respect to any Liquidated Mortgage Loan, an amount received in respect of
principal on such Mortgage Loan which has previously been allocated as a
Realized Loss to a Class or Classes of Notes net of reimbursable
expenses.
Redemption
Date: The first Payment Date on which the Servicer is
permitted to exercise its right to purchase the assets of the Trust pursuant
to
Section 9.02 hereof.
Redemption
Price: The sum of (a) the greater of (i) the aggregate Class
Principal Amount of the Notes outstanding plus accrued but unpaid interest
thereon (including Deferred Interest and Available Funds Shortfalls) and
(ii)
100% of the aggregate outstanding principal balance of the Mortgage Loans,
plus
accrued interest thereon at the applicable Mortgage Rate plus the fair market
value of all other property being purchased, (b) any unreimbursed Servicing
Advances, (c) the amount of any swap breakage costs resulting from the
termination of the Swap Agreement as a result of redemption (as reported
to the
Trust Administrator by the Swap Counterparty) and (d) all other amounts to
be
paid or reimbursed to the Master Servicer, the Trust Administrator, the
Indenture Trustee, the Owner Trustee and the Custodian.
Reference
Banks: Leading banks selected by the Trust Administrator and
engaged in transactions in Eurodollar deposits in the international Eurocurrency
market (1) with an established place of business in London, (2) whose quotations
appear on the Reuters Screen LIBO Page on the Determination Date in question,
(3) which have been designated as such by the Trust Administrator and (4)
not
controlling, controlled by, or under common control with, the
30
Depositor,
the Indenture Trustee, the Trust Administrator, the Master Servicer, the
Servicer, the Seller or any successor servicer.
Regulation
AB: means Subpart 229.1100 – Asset Backed Securities
(Regulation AB), 17 C.F.R. §§ 229.1100 - 229.1123, as such may be amended from
time to time, and subject to such clarification and interpretation as have
been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Red. Reg. 1,506, 1,531 (Jan. 7, 2005))
or
by the staff of the Commission, or as may be provided by the Commission or
its
staff from time to time.
REIT: A
real estate investment trust within the meaning of section 856 of the
Code.
Related
Senior Principal
Payment Amount: With respect to each Mortgage Group and for
any Payment Date, an amount equal to the lesser of (x) the aggregate Class
Principal Amounts of the Class 1-A Notes (with respect to Group 1) or of
the
Class 2-A1, Class 2-A2 and Class 2-A3 Notes (with respect to Group 2)
immediately prior to that Payment Date and (y) the product of (a) the Senior
Principal Payment Amount and (b) the related Senior Proportionate Percentage
in
each case for such date.
Relevant
Servicing
Criteria: means the Servicing Criteria applicable to the various parties,
as set forth on Exhibit [_] attached hereto. For clarification
purposes, multiple parties can have responsibility for the same Relevant
Servicing Criteria. With respect to a Servicing Function Participant
engaged by the Indenture Trustee or the Servicer, the term “Relevant Servicing
Criteria” may refer to a portion of the Relevant Servicing Criteria applicable
to the Servicer, the Trustee or [ ].
REO
Disposition: The final sale by the Servicer of any REO
Property.
Relevant
UCC: The Uniform Commercial Code as in effect in the
applicable jurisdiction.
REO
Disposition
Proceeds: All amounts received with respect to an REO
Disposition pursuant to Section 4.02(p).
REO
Property: A Mortgaged Property acquired by the Servicer
through foreclosure or deed-in-lieu of foreclosure in connection with a
defaulted Mortgage Loan.
Reportable
Event: has the meaning set forth in Section
8.07(d)(i).
Representing
Party: The Servicer making the representations and warranties
under Section 4.05(a).
Required
Loss
Percentage: With respect to any Payment Date, the applicable
percentage for such Payment Date as set forth in the following
table:
31
Payment
Date
|
Required
Loss Percentage
|
[__________]
200[ ] to [__________] 200[ ]
|
[___]%
with respect to December 200[ ], plus an additional 1/12th of [___]%
for
each month thereafter
|
[__________]
200[ ] to [__________] 200[ ]
|
[___]%
with respect to December 200[ ], plus an additional 1/12th of [___]%
for
each month thereafter
|
[__________]
200[ ] to [__________] 20[ ]
|
[___]%
with respect to December 200[ ], plus an additional 1/12th of [___]%
for
each month thereafter
|
[__________]
20[ ] to [__________] 20[ ]
|
[___]%
with respect to December 20[ ], plus an additional 1/12th of [___]%
for
each month thereafter
|
[__________]
20[ ] and thereafter
|
[___]%
|
Reserve
Interest
Rate: The rate per annum that the Trust Administrator
determines to be either (1) the arithmetic mean (rounded upwards if necessary
to
the nearest whole multiple of [ ]%) of the one-month United States dollar
lending rates which New York City banks selected by the Trust Administrator
are
quoting on the relevant Interest Determination Date to the principal London
offices of leading banks in the London interbank market or, (2) in the event
that the Trust Administrator can determine no such arithmetic mean, the lowest
one-month United States dollar lending rate which New York City banks selected
by the Trust Administrator are quoting on such Determination Date to leading
European banks.
Responsible
Officer: Any Vice President, any Assistant Vice President, any
Assistant Secretary, any Assistant Treasurer, any Corporate Trust officer
or any
other officer of the Indenture Trustee or the Trust Administrator, as
applicable, customarily performing functions similar to those performed by
any
of the above-designated officers and, in each case, having direct responsibility
for the administration of the Operative Agreements and also, with respect
to a
particular matter, any other officer to whom such matter is referred because
of
such officer’s knowledge of and familiarity with the particular
subject.
Reuters
Screen LIBO
Page: The display designated as page “LIBO” on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO page
on
that service for the purpose of displaying London interbank offered rates
of
major banks).
S&P: Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., or
any successor in interest.
Sarbanes
Certifying
Party: Any person who provides a certification pursuant to the
Xxxxxxxx-Xxxxx Act of 2002 on behalf of the Trust.
32
Xxxxxxxx-Xxxxx
Act: means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission’s staff).
Xxxxxxxx-Xxxxx
Certification: has the meaning set forth in Section
8.07(c)(v).
Scheduled
Payment: Each scheduled payment of principal and interest (or
of interest only, if applicable) to be paid by the Mortgagor on a Mortgage
Loan,
as reduced (except where otherwise specified herein) by the amount of any
related Debt Service Reduction or pursuant to the Civil Relief Act (excluding
all amounts of principal and interest that were due on or before the Cut-off
Date whenever received) and, in the case of an REO Property, an amount
equivalent to the Scheduled Payment that would have been due on the related
Mortgage Loan if such Mortgage Loan had remained in existence.
Securities
Act: means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
Securities
Intermediary: The Person acting as Securities Intermediary
under this Agreement (which is [__________]), its successor in
interest, and any successor Securities Intermediary appointed pursuant to
Section 6.04.
Security
Entitlement: The meaning specified in Section 8-102(a)(17) of
the New York UCC.
Seller: STB
Real Estate (Georgia), Inc., and its successors and assigns.
Senior
Enhancement
Percentage: With respect to a Payment Date on or after the
Stepdown Date, the quotient of (a) the Aggregate Collateral Balance, less
the
aggregate Class Principal Amount of the Senior Notes outstanding as of such
Payment Date, prior to giving effect to payments to be made on such Payment
Date, divided by (b) the Aggregate Collateral Balance.
Senior
Note: Any Class 1-A, Class 2-A1, Class 2-A2 or Class 2-A3
Note.
Senior
Principal Payment
Amount: With respect to the Senior Notes and any Payment Date
on or after the Stepdown Date and as long as a Trigger Event is not in effect,
with respect to such Payment Date, an amount equal to the lesser of (x) the
Principal Payment Amount for both Mortgage Groups and (y) the amount, if
any, by
which (A) the aggregate Class Principal Amounts of the Senior Notes immediately
prior to that Payment Date exceeds (B) the Senior Target Amount.
Senior
Priorities: The priority of payments to the Class A Notes
described in clauses (i)(1)(B) and (C) and (i)(2)(B) and (C), as applicable,
in
Section 6.02(e) herein for the related Mortgage Group.
Senior
Proportionate
Percentage: With respect to Group 1 and any Payment Date, the
fraction, expressed as a percentage, the numerator of which is the Principal
Funds for Group 1 for such Payment Date and the denominator of which is the
aggregate of the Principal Funds for Group 1 and Group 2 for such
date. With respect to Group 2 and any Payment Date, the
fraction,
33
expressed
as a percentage, the numerator of which is the Principal Funds for Group
2 for
such Payment Date and the denominator of which is the aggregate of the Principal
Funds for Group 1 and Group 2 for such date.
Senior
Target
Amount: With respect to any Payment Date, an amount equal to
the lesser of (a) the product of (i) approximately [____]% and (ii) the Aggregate
Collateral Balance for such Payment Date determined as of the last day of
the
related Due Period and (b) the amount, if any, by which (i) the Aggregate
Collateral Balance for such Payment Date determined as of the last day of
the
related Due Period exceeds (ii) approximately [ ]% of the
Aggregate Collateral Balance as of the Closing Date.
Servicer: SunTrust
Mortgage, Inc., or its successor in interest or assigns or any successor
to the
Servicer under this Agreement as herein provided.
Servicer
Event of
Default: Any one of the conditions or circumstances enumerated
in Section 4.07 with respect to the Servicer.
Servicer
Remittance
Date: The day in each calendar month on which the Servicer is
required to remit payments to the Collection Account, which is the
[ ] day of each calendar month (or, if such day is not a
Business Day, the next Business Day), commencing in December
[200_].
Service(s)(ing): means,
in accordance with Regulation AB, the act of servicing and administering
the
Mortgage Loans or any other assets of the Trust by an entity that meets the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation
AB. For clarification purposes, any uncapitalized occurrence of this
term shall have the meaning commonly understood by participants in the
residential mortgage-backed securitization market.
Servicing
Administration
Fee: As to any Payment Date and each Mortgage Loan, an amount
equal to the product of (a) one-twelfth of the Servicing Administration Fee
Rate
and (b) the outstanding principal balance of such Mortgage Loan as of the
first
day of the related Due Period.
Servicing
Administration Fee
Rate: With respect to each Mortgage Loan,
[ ]% per annum.
Servicing
Advances: All customary, reasonable and necessary “out of
pocket” costs and expenses other than Advances (including reasonable attorneys’
fees and disbursements) incurred in the performance by the Servicer of its
servicing obligations, including, but not limited to, the cost of (a) the
preservation, inspection, restoration and protection of the Mortgaged Property,
(b) any enforcement or administrative or judicial proceedings, including
foreclosures, (c) the management and liquidation of the Mortgaged Property
if
the Mortgaged Property is acquired in satisfaction of the Mortgage, (d) taxes,
assessments, water rates, sewer rents and other charges which are or may
become
a lien upon the Mortgaged Property and fire and hazard insurance coverage
and
(e) any losses sustained by the Servicer with respect to the liquidation
of the
Mortgaged Property. Notwithstanding anything to the contrary herein,
in the event the Servicer
34
determines
in its reasonable judgment that a Servicing Advance is a Nonrecoverable Advance,
the Servicer shall be under no obligation to make such Servicing
Advance.
Servicing
Criteria: means the criteria set forth in paragraph (d) of
Item 1122 of Regulation AB, as such may be amended from time to
time.
Servicing
File: The items pertaining to a particular Mortgage Loan
including, but not limited to, the computer files, data disks, books, records,
data tapes, notes, and all additional documents generated as a result of
or
utilized in originating and/or servicing each Mortgage Loan, which are held
in
trust for the Indenture Trustee by the Servicer.
Servicing
Function
Participant: means any Additional Servicer, Subservicer,
Subcontractor or any other Person, other than the Servicer and the Trustee,
that
is performing activities addressed by the Servicing Criteria, unless such
Person’s activities relate only to 5% or less of the Mortgage
Loans.
Servicing
Officer: Any officer of the Servicer involved in or
responsible for, the administration and servicing of the Mortgage Loans whose
name appears on a list of servicing officers furnished by the Servicer to
the
Master Servicer upon request, as such list may from time to time be
amended.
Servicing
Standard: The servicing procedures that (i) conform to
customary and usual standards of practice of prudent mortgage loan servicers,
taking into account that the Mortgage Loans are sub-prime or non-prime loans,
(ii) follow the policies and procedures that the Servicer applies to similar
mortgage loans serviced for third parties and for its own account, (iii)
comply
with all applicable laws and follow collection practices with respect to
the
related Mortgage Loans that are in all material respects legal and customary,
and (iv) subject to clause (iii), comply with the requirements of this
Agreement.
Stated
Principal
Balance: With respect to any Payment Date, either (a) in the
case of any Mortgage Loan, the principal balance of such Mortgage Loan at
the
close of business on the Cut-off Date after giving effect to principal payments
due on or before the Cut-off Date, whether or not received, less an amount
equal
to principal payments due after the Cut-off Date and on or before the Due
Date
in the related Due Period, whether or not received from the Mortgagor or
advanced by the Servicer or the Master Servicer, and all amounts allocable
to
unscheduled principal payments (including Principal Prepayments, Liquidation
Proceeds, Insurance Proceeds and condemnation proceeds, in each case to the
extent identified and applied prior to or during the related Prepayment Period),
provided that the Stated Principal Balance of any Liquidated Mortgage Loan
shall
be zero and (b) in the case of any REO Property, the Stated Principal Balance
of
the related Mortgage Loan on the Due Date immediately preceding the date
of
acquisition of such REO Property by or on behalf of the Indenture Trustee
(reduced by any amount applied as a reduction of principal on the related
Mortgage Loan).
Stepdown
Date: The earlier of (a) the first Payment Date on which the
aggregate Class Principal Amount of the Class A Notes (after giving effect
to
payment of the Principal Funds for such Payment Date) has been reduced to
zero
and (b) the later to occur of (1) the Payment Date in [__________] or (2) the first
Payment Date on which the aggregate Class Principal Amount of
35
the
Class
A Notes (after giving effect to payments of the Principal Funds for such
Payment
Date) is less than or equal to [____]% of the Aggregate Collateral Balance
as of
the end of the immediately preceding Due Period.
Stepup
Date: The first Payment Date after the Payment Date on which
the Aggregate Collateral Balance at the beginning of the Due Period related
to
that Payment Date is less than [ ]% of the Aggregate Collateral
Balance as of the Closing Date.
Subaccount:
Any of
the Pool 1 Subaccount or the Pool 2 Subaccount.
Subcontractor: Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or
more
discrete functions identified in Item 1122(d) of Regulation AB with respect
to
Mortgage Loans under the direction or authority of the Servicer or the Trust
Administrator.
Subordinate
Note: Any Class M1, Class M2, Class M3, Class M4, Class M5,
Class M6 or Class M7 Note.
Subsequent
Cut-off
Date: With respect to any Subsequent Mortgage Loan, the date
specified in the related Subsequent Transfer Agreement.
Subsequent
Mortgage
Loans: The Mortgage Loans transferred to the Trust during the
Pre-Funding Period.
Subsequent
Transfer
Agreement: A Subsequent Transfer Agreement entered into
between the Seller, the Issuing Entity, the Depositor, the Indenture Trustee
and
the Trust Administrator, substantially in the form attached as Exhibit
I.
Subservicer: Any
Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer, and (iii) is responsible
for
the performance (whether directly or through subservicers or Subcontractors)
a
substantial portion of the servicing functions required to be performed under
this Agreement or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
Substitution
Amount: The amount, if any, by which the Stated Principal
Balance of a Deleted Mortgage Loan exceeds the Stated Principal Balance of
the
related Qualifying Substitute Mortgage Loan, or aggregate Stated Principal
Balance, if applicable, plus unpaid interest thereon, any related unpaid
Advances or Servicing Advances or unpaid Servicing Administration Fees or
unpaid
Master Servicing Fees and the amount of any costs and damages incurred by
the
Trust Fund associated with a violation of any applicable federal, state or
local
predatory or abusive lending law in connection with the origination of such
Deleted Mortgage Loan.
Swap
Agreement: The swap agreement dated [__________],
200[ ], by and between the Swap Counterparty and the Issuing Entity,
specifically the ISDA Master Agreement dated as of [__________],
200[ ] between the Swap Counterparty and the Issuing Entity, the
schedule thereto and the related confirmation (____________ ), substantially
in
the form of Exhibit B hereto.
36
Swap
Counterparty: [_____________].
Targeted
Overcollateralization Amount: With respect to any Payment Date
prior to the Stepdown Date, an amount equal to [____]% of the Aggregate
Collateral Balance as of the Closing Date, and with respect to any Payment
Date
on or after the Stepdown Date, an amount equal to the lesser of (x) [____]%
of
the Aggregate Collateral Balance as of the Closing Date and (y) 1.60% of
the
Aggregate Collateral Balance as of the end of the related Due Period, subject
to
a floor equal to [____]% of the Aggregate Collateral Balance as of the Closing
Date; provided, however, that on any Payment Date with respect to which a
Trigger Event has occurred and is continuing, the Targeted Overcollateralization
Amount will be an amount equal to the Targeted Overcollateralization Amount
for
the Payment Date immediately preceding such Payment Date.
Title
Insurance
Policy: A title insurance policy maintained with respect to a
Mortgage Loan.
Total
Principal Deficiency
Amount: With respect to any Payment Date, the excess, if any,
of the aggregate Class Principal Amount of the Notes immediately prior to
such
Payment Date over the sum of the Aggregate Collateral Balance and any
Recoveries, each as of the last day of the related Due Period.
Total
Remittance
Amount: With respect to any Payment Date, the sum of (i) the
Interest Funds for both Mortgage Groups for such Payment Date and (ii) the
Principal Funds for both Mortgage Groups for such Payment Date.
Trigger
Event: A Trigger Event shall have occurred with respect to any
Payment Date on or after the Stepdown Date, if (a) the quotient of (1) the
aggregate Stated Principal Balance of all Mortgage Loans 60 or more days
delinquent, measured on a rolling three-month basis (including Mortgage Loans
in
foreclosure, REO Properties and Mortgage Loans with respect to which the
applicable mortgagor is in bankruptcy) divided by (2) the Aggregate Collateral
Balance as of the preceding Servicer Remittance Date, equals or exceeds the
product of (i) [ ]% and (ii) the Senior Enhancement
Percentage, (b) the quotient (expressed as a percentage) of (1) the aggregate
Realized Losses incurred from the Initial Cut-off Date through the last day
of
the calendar month preceding such Payment Date divided by (2) the Aggregate
Collateral Balance as of the Closing Date exceeds the Required Loss Percentage
or (c) a Principal Deficiency Amount exists for such Payment Date.
Trust
or Trust
Fund: The Issuing Entity.
Trust
Account: The Collection Account.
Trust
Account
Property: The Trust Account, all amounts and investments held
from time to time in the Trust Account (whether in the form of deposit accounts,
physical property, book-entry securities, uncertificated securities, securities
entitlements, investment property or otherwise) and all proceeds of the
foregoing.
Trust
Agreement: The trust agreement dated as of [________],
200[ ], between the Depositor and the Owner Trustee, as amended and
restated on [________], 200[ ], among the
37
Depositor,
the Trust Administrator and the Owner Trustee, as such may be amended or
supplemented from time to time.
Trust
Estate: The assets of the Issuing Entity and pledged by the
Issuing Entity to the Indenture Trustee under the Indenture, which assets
consist of all accounts, accounts receivable, contract rights, general
intangibles, chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, notes, drafts, letters of credit, advices
of
credit, investment property, uncertificated securities and rights to payment
of
any and every kind consisting of, arising from or relating to any of the
following: (a) the Mortgage Loans listed in the Mortgage Loan
Schedule, and principal due and payable after the Cut-off Date, but not
including interest and principal due and payable on any Mortgage Loans on
or
before the Cut-off Date, together with the Mortgage Files relating to such
Mortgage Loans; (b) any Insurance Proceeds, REO Property, Liquidation Proceeds,
REO Disposition Proceeds and other recoveries (in each case, subject to clause
(a) above), (c) the Collection Account, any Custodial Account, any Escrow
Account, the Pre-Funding Account and all amounts deposited therein pursuant
to
the applicable provisions of this Agreement, (d) any Insurance Policies,
(e) the
rights of the Depositor under the Mortgage Loan Purchase Agreement, (f) all
income, revenues, issues, products, revisions, substitutions, replacements,
profits, rents and all cash and non-cash proceeds of the foregoing and (g)
the
rights of the Trust under the Swap Agreement.
UCC: The
Uniform Commercial Code as enacted in the relevant jurisdiction.
Underwriters: [_____________________________________].
Voting
Interests: The portion of the voting rights of all the Notes
that is allocated to any Note for purposes of the voting provisions of this
Agreement. At all times during the term of this Agreement, 98% of all
voting rights will be allocated among the holders of the Notes as provided
below. The portion of such voting rights allocated to such Notes will
be based on the fraction, expressed as a percentage, the numerator of which
is
the aggregate Class Principal Amount then outstanding and the denominator
of
which is the aggregate outstanding principal balance of the Notes. At
all times during the term of the Indenture and this Agreement, the holders
of
the Ownership Certificate will be allocated 2% of the voting
rights. The voting rights allocation to any Class of Notes or the
Ownership Certificate will be allocated among all holders of each such Class
or
Certificate in proportion to the outstanding Class Principal Amount of such
Notes or Percentage Interest of the Ownership Certificate.
Section
1.02. Calculations
With Respect to
the Mortgage Loans. Calculations required to be made pursuant
to this Agreement with respect to any Mortgage Loan in the Trust Estate shall
be
made based upon current information as to the terms of the Mortgage Loans
and
reports of payments received from the Mortgagor on such Mortgage Loans provided
by the Servicer to the Trust Administrator. Payments to be made by
the Trust Administrator shall be based on information provided by the
Servicer. The Trust Administrator shall not be required to recompute,
verify or recalculate the information supplied to it by the
Servicer.
Section
1.03. Calculations
With Respect to
Accrued Interest. Accrued interest, if any, on any LIBOR Note
shall be calculated based upon a 360-day year and the actual number of days
in
each Accrual Period.
38
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS
Section
2.01. Creation
and Declaration of
Trust Estate; Conveyance of Initial Mortgage Loans.
(a) Mortgage
Loans. As of the Closing Date, in consideration of the Issuing
Entity’s delivery of the Notes to the Depositor or its designee, and
concurrently with the execution and delivery of this Agreement, the Depositor
does hereby transfer, assign, set over, deposit with and otherwise convey
to the
Issuing Entity, without recourse, subject to Section 3.01, in trust, all
the
right, title and interest of the Depositor in and to the Initial Mortgage
Loans. Such conveyance includes, without limitation, the right to all
payments of principal and interest received on or with respect to the Initial
Mortgage Loans on and after the Initial Cut-off Date (other than payments
of
principal and interest due on or before such date), and all such payments
due
after such date but received prior to such date and intended by the related
Mortgagors to be applied after such date together with all of the Depositor’s
right, title and interest in any REO Property and the proceeds thereof, the
Depositor’s rights under any Insurance Policies related to the Mortgage Loans,
the Depositor’s security interest in any collateral pledged to secure the
Mortgage Loans, including the Mortgaged Properties and any proceeds of the
foregoing, to have and to hold, in trust; and the Indenture Trustee declares
that, subject to the review provided for in Section 2.02, it has received
and
shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit
and
use of the Noteholders and the Swap Counterparty and for the purposes and
subject to the terms and conditions set forth in this Agreement, and,
concurrently with such receipt, the Issuing Entity has issued and delivered
the
Notes to or upon the order of the Depositor, in exchange for the Mortgage
Loans
and the other property of the Trust Estate.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Issuing Entity all of its rights and interest under the Mortgage
Loan Purchase Agreement but without delegation of any of its obligations
thereunder. The Issuing Entity hereby accepts such assignment, and
shall be entitled to exercise all the rights of the Depositor under the Mortgage
Loan Purchase Agreement as if, for such purpose, it were the
Depositor. Upon the issuance of the Notes, ownership in the Trust
Estate shall be vested in the Issuing Entity, subject to the lien created
by the
Indenture in favor of the Indenture Trustee, for the benefit of the Noteholders
and the Swap Counterparty. The Issuing Entity hereby accepts such
assignment and shall be entitled to exercise all rights of the Depositor
under
the Mortgage Loan Purchase Agreement as if, for such purpose, it were the
Depositor. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation
or
assumption by the Indenture Trustee of any obligation of the Depositor, the
Seller, or any other Person in connection with the Mortgage Loans or any
other
agreement or instrument relating thereto except as specifically set forth
herein.
It
is
agreed and understood by the Depositor, the Issuing Entity and the Indenture
Trustee that it is not intended that any Mortgage Loan to be included in
the
Trust Fund be (i) a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003, (ii) a “High-Cost Home Loan” as
defined in the New Mexico Home Loan Protection Act effective January 1, 2004,
(iii) a “High-Cost Home Mortgage Loan” as defined in the
39
Massachusetts
Predatory Home Loan Practices Act effective November 7, 2004 and (iv) a “High
Cost Home Loan” as defined in the Indiana Home Loan Practices Act effective
January 1, [200_].
(b)
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with, or cause to be delivered to and deposited with, the
Indenture Trustee, and/or the Custodian acting on the Indenture Trustee’s
behalf, the following documents or instruments with respect to each Initial
Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the form of
the
Form of Endorsement set forth in Exhibit A-4 hereto (or Exhibit B-6 to the
Custodial Agreement), or with respect to any lost Mortgage Note, an original
Lost Note Affidavit, in the form set forth in Exhibit C hereto (or Exhibit
B-5
to the Custodial Agreement), stating that the original Mortgage Note was
lost,
misplaced or destroyed, together with a copy of the related Mortgage
Note;
(ii) the
original of any guarantee executed in connection with the Mortgage Note assigned
to the Indenture Trustee;
(iii) the
original Mortgage with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power of attorney,
with evidence of recording thereon or, if such Mortgage or power of attorney
has
been submitted for recording but has not been returned from the applicable
public recording office, has been lost or is not otherwise available, a copy
of
such Mortgage or power of attorney, as the case may be, certified by an
Officer’s Certificate of the Seller to be a true and complete copy of the
original submitted for recording, together with a written Opinion of Counsel
acceptable to the Indenture Trustee and the Depositor that an original recorded
Mortgage is not required to enforce the Indenture Trustee’s interest in the
Mortgage Loan;
(iv) with
respect to each Non-MERS Mortgage Loan, an original Assignment of Mortgage,
in
form and substance acceptable for recording. The Mortgage shall be
assigned either (A) in blank, without recourse, or (B) to
“[___________________],” as Indenture Trustee of the SunTrust
[ ] Trust, Series 200[ ]-[__]”, without
recourse or (C) to the order of the Indenture Trustee;
(v) an
original copy of any intervening assignment of Mortgage showing a complete
chain
of assignments or, in the case of an intervening assignment that has been
lost,
a written Opinion of Counsel for the Seller acceptable to the Indenture Trustee
that such original intervening assignment is not required to enforce the
Indenture Trustee’s interest in the Mortgage Loans;
(vi) the
original or a certified copy of lender’s title insurance policy (or, in lieu
thereof, a commitment to issue such title insurance policy, with an original
or
a certified copy of such title insurance policy to follow as soon after the
Closing Date as reasonably practicable);
(vii) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any, or as to any such agreement which cannot
be
delivered prior to
40
the
Closing Date because of a delay caused by the public recording office where
such
assumption, modification or substitution agreement has been delivered for
recordation, a photocopy of such assumption, modification or substitution
agreement, pending delivery of the original thereof, together with an Officer’s
Certificate of the Seller certifying that the copy of such assumption,
modification or substitution agreement delivered to the Custodian is a true
copy
and that the original of such agreement has been forwarded to the public
recording office; and
(viii) the
original of any security agreement or equivalent instrument executed in
connection with the Mortgage or as to any security agreement or equivalent
instrument that cannot be delivered on or prior to the Closing Date because
of a
delay caused by the public recording office where such document has been
delivered for recordation, a photocopy of such document, pending delivery
of the
original thereof, together with an Officer’s Certificate of the Seller
certifying that the copy of such security agreement, chattel mortgage or
their
equivalent delivered to the Custodian is a true copy and that the original
of
such document has been forwarded to the public recording office.
The
Depositor and the Seller acknowledge and agree that the form of endorsement
attached hereto as Exhibit A-4 is intended to effect the transfer to the
Indenture Trustee, for the benefit of the Noteholders and the Swap Counterparty,
of the Mortgage Notes and the Mortgages.
(c)
MERS is
the record owner of all of the Mortgage Loans. The Seller shall, or shall
cause
the Servicer, at the expense of the Seller, to take such actions as are
necessary to cause the Indenture Trustee to be clearly identified as the
owner
of each such Mortgage Loan on the records of MERS for purposes of the system
of
recording transfers of beneficial ownership of mortgages maintained by
MERS.
(d) In
instances where a Title Insurance Policy is required to be delivered to the
Indenture Trustee or the Custodian on behalf of the Indenture Trustee under
clause (b)(vii) above and is not so delivered, the Seller will provide a
copy of
such Title Insurance Policy to the Indenture Trustee, or to the Custodian
on
behalf of the Indenture Trustee, as promptly as practicable after the execution
and delivery hereof, but in any case within 180 days of the Closing
Date.
(e) For
Initial Mortgage Loans (if any) that 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, herewith delivers to the Indenture Trustee, or to the Custodian
on behalf of the Indenture Trustee, an Officer’s Certificate of the Seller which
shall include a statement to the effect that all amounts received in connection
with such prepayment that are required to be deposited in the Collection
Account
pursuant to Section 5.07 have been so deposited. All original
documents that are not delivered to the Indenture Trustee or the Custodian
on
behalf of the Indenture Trustee shall be held by the Servicer in trust for
the
benefit of the Indenture Trustee and the Noteholders and the Swap
Counterparty.
Section
2.02. Acceptance
of Trust Estate;
Review of Documentation.
41
(a) Subject
to the provisions of Section 2.01, the Issuing Entity acknowledges receipt
of
the assets transferred by the Depositor of the assets included in the Trust
Estate and has directed that the documents referred to in Section 2.01 and
all
other assets included in the definition of “Trust Estate” be delivered to the
Indenture Trustee (or the Custodian) on its behalf.
The
Indenture Trustee, by execution and delivery hereof, acknowledges receipt
by it
or by the applicable Custodian on its behalf of the Mortgage Files pertaining
to
the Mortgage Loans listed on the Mortgage Loan Schedule, subject to review
thereof by the Indenture Trustee, or by the Custodian on behalf of the Indenture
Trustee, under this Section 2.02. The Indenture Trustee, or the
Custodian on behalf of the Indenture Trustee, will execute and deliver to
the
Depositor, the Master Servicer and the Servicer (and the Indenture Trustee
if
delivered by the Custodian) on the Closing Date an Initial Certification
in the
form annexed hereto as Exhibit A-1 (or in the form annexed to the Custodial
Agreement as Exhibit A-1, as applicable).
(b) Within
45
days after the Closing Date, the Indenture Trustee or the Custodian on behalf
of
the Indenture Trustee, will, for the benefit of Noteholders and the Swap
Counterparty, review each Mortgage File to ascertain that all required documents
set forth in Section 2.01 have been received and appear on their face to
contain
the requisite signatures by or on behalf of the respective parties thereto,
and
shall deliver to the Depositor, the Master Servicer and the Servicer (and
the
Indenture Trustee if delivered by the Custodian) an Interim Certification
in the
form annexed hereto as Exhibit A-2 (or in the form annexed to the Custodial
Agreement as Exhibit A-2, as applicable) to the effect that, as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan prepaid
in full or any specifically identified in such certification as not covered
by
such certification), (i) all of the applicable documents specified in Section
2.01(b) are in its possession and (ii) such documents have been reviewed
by it
and appear to relate to such Mortgage Loan. The Indenture Trustee, or
the Custodian on behalf of the Indenture Trustee, shall determine whether
such
documents are executed and endorsed, but shall be under no duty or obligation
to
inspect, review or examine any such documents, instruments, certificates
or
other papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form
or
that they are other than what they purport to be on their
face. Neither the Indenture Trustee nor the Custodian shall have any
responsibility for verifying the genuineness or the legal effectiveness of
or
authority for any signatures of or on behalf of any party or
endorser.
(c)
If, in
the course of the review described in paragraph (b) above or paragraph (d)
below, the Indenture Trustee or the Custodian discovers any document or
documents constituting a part of a Mortgage File that is missing, does not
appear regular on its face (i.e., is mutilated, damaged, defaced, torn or
otherwise physically altered) or appears to be unrelated to the Mortgage
Loans
identified in the Mortgage Loan Schedule, as applicable (each, a “Material
Defect”), the Indenture Trustee, or the Custodian on behalf of the Indenture
Trustee, discovering such Material Defect shall identify the Mortgage Loan
to
which such Material Defect relates in the Interim Certification delivered
to the
Depositor and the Master Servicer. Within 90 days of its receipt of
such notice, the Seller shall be required to cure such Material Defect (and,
in
such event, the Seller shall provide the Indenture Trustee with an Officer’s
Certificate confirming that such cure has been effected). If the
Seller does not so cure such Material Defect, if a loss has been incurred
with
respect to such Mortgage Loan that would, if such Mortgage Loan were
not
42
purchased
from the Trust Estate, constitute a Realized Loss, and such loss is attributable
to the failure of the Seller to cure such Material Defect, the Seller shall
repurchase the related Mortgage Loan from the Trust Estate at the Purchase
Price. A loss shall be deemed to be attributable to the failure of
the Seller to cure a Material Defect if, as determined by the Seller, upon
mutual agreement with the Indenture Trustee each acting in good faith, absent
such Material Defect, such loss would not have been incurred. The
Seller may, in lieu of repurchasing a Mortgage Loan pursuant to this Section
2.02, substitute for such Mortgage Loan a Qualifying Substitute Mortgage
Loan
subject to the provisions of Section 3.03. The failure of the
Indenture Trustee or the Custodian to deliver the Interim Certification within
45 days after the Closing Date shall not affect or relieve the Seller of
its
obligation to repurchase any Mortgage Loan pursuant to this Section 2.02
or any
other Section of this Agreement requiring the repurchase of Mortgage Loans
from
the Trust Estate.
(d) Within
180 days following the Closing Date, the Indenture Trustee, or the Custodian,
shall deliver to the Depositor, the Master Servicer and the Servicer (and
the
Indenture Trustee if delivered by the Custodian) a Final Certification
substantially in the form attached as Exhibit A-3 (or in the form annexed
to the
Custodial Agreement as Exhibit A-3, as applicable) evidencing the completeness
of the Mortgage Files in its possession or control, with any exceptions noted
thereto.
(e) Nothing
in this Agreement shall be construed to constitute an assumption by the Trust
Estate, the Indenture Trustee, the Custodian or the Noteholders of any
unsatisfied duty, claim or other liability on any Mortgage Loan or to any
Mortgagor.
(f) Notwithstanding
anything to the contrary contained herein, each of the parties hereto
acknowledges that the Custodian shall perform the applicable review of the
Mortgage Loans and respective certifications thereof as provided in the
Custodial Agreement.
(g) Upon
execution of this Agreement, the Depositor hereby delivers to the Indenture
Trustee and the Indenture Trustee acknowledges a receipt of the Mortgage
Loan
Purchase Agreement.
Section
2.03. Grant
Clause.
(a) It
is
intended that the conveyance by the Depositor to the Issuing Entity of the
Mortgage Loans, as provided for in Section 2.01 be construed as a sale by
the
Depositor to the Issuing Entity of the Mortgage Loans and other assets in
the
Trust Estate for the benefit of the Noteholders and the Swap
Counterparty. Further, it is not intended that any such conveyance be
deemed to be a pledge of the Mortgage Loans by the Depositor to the Issuing
Entity to secure a debt or other obligation of the
Depositor. However, in the event that the Mortgage Loans are held to
be property of the Depositor or if for any reason this Agreement is held
or
deemed to create a security interest in the Mortgage Loans and other assets
in
the Trust Estate, then it is intended that (a) this Agreement shall also
be
deemed to be a security agreement within the meaning of Articles 8 and 9
of the
New York UCC (or the Relevant UCC if not the New York UCC); (b) the conveyances
provided for in Section 2.01 shall be deemed to be (1) a grant by the Depositor
to the Issuing Entity of a security interest in all of the Depositor’s right
(including the power to convey title thereto), title and interest, whether
now
owned or hereafter acquired, in and
43
to
(A)
the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related
insurance policies and all other documents in the related Mortgage Files,
(B)
all amounts payable pursuant to the Mortgage Loans in accordance with the
terms
thereof and (C) any and all general intangibles consisting of, arising from
or
relating to any of the foregoing, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all Liquidation Proceeds, all Insurance
Proceeds, all amounts from time to time held or invested in the Collection
Account, whether in the form of cash, instruments, securities or other property
and (2) an assignment by the Depositor to the Issuing Entity of any security
interest in any and all of the Depositor’s right (including the power to convey
title thereto), title and interest, whether now owned or hereafter acquired,
in
and to the property described in the foregoing clauses (1)(A) through (C);
(c)
the possession by the Indenture Trustee or any other agent of the Issuing
Entity
of Mortgage Notes, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be “possession
by the secured party,” or possession by a purchaser or a person designated by
such secured party, for purposes of perfecting the security interest pursuant
to
the New York UCC and any other Relevant UCC (including, without limitation,
Section 9-313, 8-313 or 8-321 thereof); and (d) notifications to persons
holding
such property, and acknowledgments, receipts or confirmations from persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents
(as
applicable) of the Issuing Entity for the purpose of perfecting such security
interest under applicable law.
(b)
The
Depositor and, at the Depositor’s direction, the Issuing Entity shall, to the
extent consistent with this Agreement, take such reasonable actions as may
be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the other property of the Trust Estate,
such
security interest would be deemed to be a perfected security interest of
first
priority under applicable law and will be maintained as such throughout the
term
of this Agreement. Without limiting the generality of the foregoing,
the Depositor shall prepare and file any UCC financing statements that are
necessary to perfect the Indenture Trustee’s security interest in or lien on the
Mortgage Loans, as evidenced by an Officer’s Certificate of the Depositor, and
furnish a copy of each such filed financing statement to the Trust
Administrator. The Trust Administrator shall prepare and file, at the
expense of the Issuing Entity, all filings necessary to maintain the
effectiveness of any original filings necessary under the Relevant UCC to
perfect the Indenture Trustee’s security interest in or lien on the Mortgage
Loans, including without limitation (x) continuation statements, and (y)
to the
extent that a Responsible Officer of the Trust Administrator has received
written notice of such change or transfer, such other statements as may be
occasioned by (1) any change of name of the Seller, the Depositor or the
Issuing
Entity, (2) any change of location of the place of business or the chief
executive office of the Seller or the Depositor or (3) any transfer of any
interest of the Seller or the Depositor in any Mortgage Loan.
Neither
the Depositor nor the Issuing Entity shall organize under the law of any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and mediate transferee, including the Indenture
Trustee. Before effecting such change, each of the Depositor or the
Issuing Entity proposing to change its jurisdiction of organization shall
prepare and file in the
44
appropriate
filing office any financing statements or other statements necessary to continue
the perfection of the interests of its immediate and mediate transferees,
including the Indenture Trustee, in the Mortgage Loans. In connection
with the transactions contemplated by this Agreement and the Indenture, each
of
the Depositor and the Issuing Entity authorizes its immediate or mediate
transferee, including the Indenture Trustee, to file in any filing office
any
initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in
this
Section 2.03(b).
(c) The
Depositor shall not take any action inconsistent with the sale by the Depositor
of all of its right, title and interest in and to the Trust Estate and shall
indicate or shall cause to be indicated in its records and records held on
its
behalf that ownership of each Mortgage Loan and the other property of the
Issuing Entity is held by the Issuing Entity. In addition, the
Depositor shall respond to any inquiries from third parties with respect
to
ownership of a Mortgage Loan or any other property of the Trust Estate by
stating that it is not the owner of such Mortgage Loan and that ownership
of
such Mortgage Loan or other property of the Trust Estate is held by the Issuing
Entity on behalf of the Noteholders and the Swap Counterparty.
Section
2.04. Subsequent
Transfers.
(a) Subject
to the satisfaction of the conditions set forth in paragraph (b) below and
pursuant to the terms of each Subsequent Transfer Agreement, in consideration
of
the Trust Administrator’s delivery, on behalf of the Trust, on the related
Subsequent Transfer Date to or upon the order of the Seller of the purchase
price therefor, (i) the Seller shall on any Subsequent Transfer Date sell,
transfer, assign, set over and otherwise convey without recourse to the
Depositor and (ii) the Depositor shall sell, transfer, assign, set over and
otherwise convey without recourse to the Trust, all right, title and interest
of
the Seller and the Depositor, as applicable, in and to each Subsequent Mortgage
Loan transferred pursuant to such Subsequent Transfer Agreement, including
(i)
the related Stated Principal Balance as of the Subsequent Cut-Off Date after
giving effect to payments of principal due on or before the Subsequent Cut-Off
Date; (ii) all collections in respect of interest and principal received
after
the Subsequent Cut-Off Date (other than principal and interest due on or
before
such Subsequent Cut-off Date); (iii) property which secured such Subsequent
Mortgage Loan and which has been acquired by foreclosure or deed in lieu
of
foreclosure; (iv) its interest in any insurance policies in respect of such
Subsequent Mortgage Loan; and (v) all proceeds of any of the
foregoing. The transfers by the Seller to the Depositor and by the
Depositor to the Trust of the Subsequent Mortgage Loans set forth on the
Subsequent Mortgage Loan Schedule attached thereto shall be absolute and
shall
be intended by the Seller, the Depositor and all parties hereto, other than
for
federal income tax purposes, to be treated as a sale by the Seller to the
Depositor and as a sale by the Depositor to the Trust. The parties
hereto intend that for federal income tax purposes the transfer of Subsequent
Mortgage Loans will be characterized as described in Section 8.7 of the Mortgage
Loan Purchase Agreement. If the assignment and transfer of the
Mortgage Loans and the other property specified in this Section 2.04 from
the
Seller to the Depositor and by the Depositor to the Trust pursuant to this
Agreement and each Subsequent Transfer Agreement is held or deemed not to
be a
sale or is held or deemed to be a pledge of security for a loan, each of
the
Seller and the Depositor intend that the rights and obligations of the parties
shall be established pursuant to the terms of this Agreement and that, in
such
event, (i) the Seller shall be deemed to have granted and does hereby grant
to
the Depositor and the Depositor shall be deemed to have granted and
45
does
hereby grant to the Trust as of such Subsequent Transfer Date a first priority
security interest in the entire right, title and interest of the Seller and
of
the Depositor in and to the Subsequent Mortgage Loans and all other property
conveyed to the Trust pursuant to this Section 2.04 and all proceeds thereof
and
(ii) this Agreement shall constitute a security agreement under applicable
law. The purchase price shall be one hundred Percent (100%) of the
aggregate Stated Principal Balance of the Subsequent Mortgage Loans as of
the
Subsequent Cut-Off Date. On or before each Subsequent Transfer Date,
the Seller shall deliver to, and deposit with the Indenture Trustee or the
Custodian on behalf of the Indenture Trustee, the related documents with
respect
to each Subsequent Mortgage Loan transferred on such Subsequent Transfer
Date,
and the related Subsequent Mortgage Loan Schedule in computer readable format
with respect to such Subsequent Mortgage Loans.
(b)
The
Seller shall transfer and deliver to the Indenture Trustee or the Custodian
on
behalf of the Indenture Trustee the Subsequent Mortgage Loans and the other
property and rights related thereto described in paragraph (a) of this Section
2.04 only upon the satisfaction of each of the following conditions on or
prior
to the applicable Subsequent Transfer Date:
(i) The
Seller shall have provided the Servicer, the Indenture Trustee, the Depositor,
the Trust Administrator, the Master Servicer and the Rating Agencies with
an
Addition Notice, which notice shall be given not less than two Business Days
prior to the applicable Subsequent Transfer Date and shall designate the
Subsequent Mortgage Loans to be sold to the Trust and the aggregate Stated
Principal Balance of such Mortgage Loans and the Rating Agencies shall have
informed the Seller, the Depositor, the Indenture Trustee, the Trust
Administrator, the Master Servicer or the Servicer prior to the applicable
Subsequent Transfer Date that the inclusion of such Subsequent Mortgage Loans
will not result in the downgrade or withdrawal of the ratings assigned to
the
Notes;
(ii) The
Seller shall have delivered to the Indenture Trustee, the Depositor, the
Trust
Administrator, the Master Servicer and the Servicer a duly executed Subsequent
Transfer Agreement in substantially the form of Exhibit I;
(iii) The
Seller shall have delivered to the Trust Administrator for deposit in the
Collection Account all principal collected and interest collected to the
extent
accrued and due after the Subsequent Cut-off Date;
(iv)
As of
each Subsequent Transfer Date, the Seller was not insolvent, the Seller will
not
be made insolvent by such transfer and the Seller is not aware of any pending
insolvency;
(v) Such
addition will not result in a material adverse tax consequence to any
Noteholder;
(vi) The
Pre-Funding Period shall not have terminated;
(vii) The
Seller shall have provided the Indenture Trustee, the Trust Administrator,
the
Depositor and the Rating Agencies with an Opinion of Counsel relating to
the
sale (i.e., “True Sale Opinion”) of the Subsequent Mortgage Loans from the
Seller to the
46
Depositor
and the enforceability of the Subsequent Transfer Agreement with respect
to the
Seller and the Depositor, which matters may be covered in the opinions delivered
on the Closing Date;
(viii) The
Depositor shall have provided the Indenture Trustee, the Trust Administrator
and
the Rating Agencies with an Opinion of Counsel relating to the sale (i.e.,
“True
Sale Opinion”) of the Subsequent Mortgage Loans from the Depositor to the Trust,
the enforceability of the Subsequent Transfer Agreement with respect to the
Depositor and to the effect that the transfer of such Subsequent Mortgage
Loans
will not adversely affect the tax status of the Notes, which matters may
be
covered in the opinions delivered on the Closing Date;
(ix) The
aggregate Stated Principal Balance of Subsequent Mortgage Loans does not
exceed
the amount deposited in the Pre-Funding Account as of the Closing
Date;
(x) The
conditions specified in Exhibit J hereto shall be met;
(xi) On
the
last Subsequent Transfer Date, the Indenture Trustee and the Trust Administrator
shall have received an accountant’s letter confirming that the characteristics
of the Mortgage Loans (including the Subsequent Mortgage Loans), satisfy
the
parameters set forth in Exhibit J hereto; and
(xii) The
Issuing Entity shall have provided the Indenture Trustee, the Trust
Administrator, the Depositor, the Rating Agencies, the Seller and the
Underwriters with an Opinion of Counsel relating to general corporate matters,
in a form reasonably satisfactory to the addressees thereto.
(c) Each
party hereto shall comply with their respective obligations set forth in
Sections 2.01, 2.02, 3.01, 3.02 and 3.03 with respect to the Subsequent Mortgage
Loans delivered on each Subsequent Transfer Date. References in such
Sections to the Initial Mortgage Loans or Mortgage Loans shall be deemed
to
refer to the Subsequent Mortgage Loans and references to the Initial Cut-Off
Date or the Closing Date, as applicable, shall be deemed to refer to the
applicable related Subsequent Cut-Off Date or Subsequent Transfer Date,
respectively, except that references to 360 days after the Closing Date shall
remain unchanged as shall representations made with specific reference to
the
Initial Mortgage Loans.
Section
2.05. Option
to Contribute
Derivative Instrument.
At
any
time on or after the Closing Date, the Seller shall have the right to contribute
to, and deposit into, the Trust a derivative contract or comparable instrument
(a “Derivative Instrument”). The Derivative Instrument may have a
notional amount in excess of the sum of the beneficial interests in the
Trust. Any such instrument shall constitute a fully prepaid
agreement. The Trust Administrator shall have no tax reporting duties
with respect to any such Derivative Instrument.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Section
3.01. Representations
and
Warranties of the Depositor and the Seller.
47
(a)
The
Depositor hereby represents and warrants to the Issuing Entity, the Indenture
Trustee for the benefit of Noteholders and the Swap Counterparty, the Trust
Administrator, the Master Servicer and the Servicer as of the Closing Date
or
such other date as is specified, that:
(i) This
Agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii)
Immediately prior to the transfer by the Depositor to the Trust Estate of
each
Mortgage Loan, the Depositor had good and equitable title to each Initial
Mortgage Loan (insofar as such title was conveyed to it by the Seller) subject
to no prior lien, claim, participation interest, mortgage, security interest,
pledge, charge or other encumbrance or other interest of any
nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest
in the
Initial Mortgage Loans to the Trust Estate;
(iv) The
Depositor has not transferred the Initial Mortgage Loans to the Trust Estate
with any intent to hinder, delay or defraud any of its creditors;
(v) The
Depositor has been duly organized and is validly existing as a limited liability
company in good standing under the laws of the state of Delaware, with full
power and authority to own its assets and conduct its business as presently
being conducted; and
(b)
The
Seller hereby represents and warrants to the Issuing Entity, the Indenture
Trustee for the benefit of Noteholders and the Swap Counterparty, the Trust
Administrator, the Master Servicer and the Depositor as of the Closing Date
or
such other date as is specified, that:
(i) the
Seller is a [__________] corporation, duly organized validly existing and
in
good standing under the laws of the [______________], and has the corporate
power to own its assets and to transact the business in which it is currently
engaged. The Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the character
of the business transacted by it or any properties owned or leased by it
requires such qualification and in which the failure so to qualify would
have a
material adverse effect on the business, properties, assets, or condition
(financial or other) of the Seller;
(ii) the
Seller has the corporate power and authority to make, execute, deliver and
perform this Agreement and all of the transactions contemplated under the
Agreement, and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed
and delivered, this Agreement will constitute the legal, valid and binding
obligation of the Seller 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;
48
(iii) the
Seller is not required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or declaration with,
any governmental authority, bureau or agency in connection with the execution,
delivery, performance, validity or enforceability of this Agreement, except
for
such consent, license, approval or authorization, or registration or
declaration, as shall have been obtained or filed, as the case may be, prior
to
the Closing Date;
(iv) the
execution, delivery and performance of this Agreement by the Seller will
not
violate any provision of any existing law or regulation or any order or decree
of any court applicable to the Seller or any provision of the articles of
incorporation or bylaws of the Seller, or constitute a material breach of
any
mortgage, indenture, contract or other agreement to which the Seller is a
party
or by which the Seller may be bound;
(v) no
litigation or administrative proceeding of or before any court, tribunal
or
governmental body is currently pending, or to the knowledge of the Seller
threatened, against the Seller or any of its properties or with respect to
this
Agreement which in the opinion of the Seller has a reasonable likelihood
of
resulting in a material adverse effect on the transactions contemplated by
this
Agreement, and
(vi) The
Seller has been organized in conformity with the requirements for qualification
as a REIT and currently qualifies as a REIT; the Seller has filed an election
to
be treated as a REIT for federal income tax purposes; and the Seller has
operated in a manner and will continue to operate in a manner that will enable
it to continue to maintain its current qualification as a REIT.
(c)
The
Seller hereby represents and warrants to the Issuing Entity, the Indenture
Trustee for the benefit of Noteholders and the Swap Counterparty, the Trust
Administrator, the Master Servicer and the Depositor as of the Closing Date
or
such other date as is specified, with respect to the Mortgage Loans, the
representations and warranties set forth in Section 3.2 of the Mortgage Loan
Purchase Agreement.
(d) To
the
extent that any fact, condition or event with respect to a Mortgage Loan
constitutes a breach of a representation or warranty of the Seller under
subsection (c) above or the Mortgage Loan Purchase Agreement, the only right
or
remedy of the Indenture Trustee or any Certificateholder hereunder shall
be
their rights to enforce the obligations of the Seller under any applicable
representation or warranty made by it. The Indenture Trustee
acknowledges that the Depositor shall have no obligation or liability with
respect to any breach of any representation or warranty with respect to the
Mortgage Loans (except as set forth in Section 3.01(a)(ii)) under any
circumstances.
Section
3.02. Discovery
of
Breach. It is understood and agreed that the representations
and warranties (i) of the Depositor set forth in Section , (ii) of the Seller
set forth in Section 4.05 and 3.01(b) and (iii) of the Servicer pursuant
to
Section 4.05 of this Agreement, shall each survive delivery of the Mortgage
Files and the Assignment of Mortgage of each Mortgage Loan to the Indenture
Trustee and shall continue throughout the term of this
Agreement. With respect to the representations and warranties which
are made to the best of the Seller’s knowledge, if it is discovered by the
Depositor, the Seller, the Trust Administrator, the Indenture Trustee,
the
49
Master
Servicer, the Underwriters or the Servicer that the substance of such
representation and warranty is inaccurate and such inaccuracy materially
and
adversely affects the value of the Mortgage Loans or the interests of the
Noteholders or the Indenture Trustee therein, notwithstanding such Seller’s lack
of knowledge with respect to the substance of such representation or warranty,
remedies for breach will apply to such inaccuracy. Any breach of the
representation and warranty set forth in clauses [(xxi), (xxxiv), (lxxii),
(lxxiv), (lxxv), (lxxvi), (lxxxv), (lxxxvi), (lxxxvii) and (lxxxviii)] of
Section 3.2 of the Mortgage Loan Purchase Agreement shall be deemed to
materially and adversely affect the interest of the Trust in that Mortgage
Loan,
notwithstanding the Seller’s lack of knowledge with respect to the substance of
such representation and warranty. Upon discovery by any of the
Depositor, the Master Servicer, the Trust Administrator or the Indenture
Trustee
of a breach of any of such representations and warranties made by the Seller
that adversely and materially affects the value of the related Mortgage Loan,
the party discovering such breach shall give prompt written notice to the
other
parties. Within 60 days of the discovery by the Seller of a breach of
any representation or warranty given to the Indenture Trustee by the Seller
or
the Seller’s receipt of written notice of such a breach, the Seller shall either
(a) cure such breach in all material respects, (b) repurchase such Mortgage
Loan
or any property acquired in respect thereof from the Indenture Trustee at
the
Purchase Price or (c) substitute a Qualifying Substitute Mortgage Loan for
the
affected Mortgage Loan.
Section
3.03. Repurchase,
Purchase or
Substitution of Mortgage Loans.
(a) With
respect to any Mortgage Loan repurchased by the Seller pursuant to Section
3.02(b) of this Agreement, or any Mortgage Loan purchased by the Servicer
pursuant to Section 4.02(b) of this Agreement, the principal portion of the
funds in respect of such repurchase or purchase of a Mortgage Loan will be
considered a Principal Prepayment and the Purchase Price shall be deposited
in
the Collection Account. Upon receipt by the Trust Administrator of
the full amount of the Purchase Price for a Deleted Mortgage Loan, or upon
receipt of notification from the Custodian that it had received the Mortgage
File for a Qualifying Substitute Mortgage Loan substituted for a Deleted
Mortgage Loan (and any applicable Substitution Amount), the Indenture Trustee
shall release or cause to be released and reassign to the Depositor, the
Seller
or the Servicer, as applicable, the related Mortgage File for the Deleted
Mortgage Loan and shall execute and deliver such instruments of transfer
or
assignment, in each case without recourse, representation or warranty, as
shall
be necessary to vest in such party or its designee or assignee title to any
Deleted Mortgage Loan released pursuant hereto, free and clear of all security
interests, liens and other encumbrances created by this Agreement and the
Indenture, which instruments shall be prepared by the Servicer and the Indenture
Trustee shall have no further responsibility with respect to the Mortgage
File
relating to such Deleted Mortgage Loan.
(b) With
respect to each Qualifying Substitute Mortgage Loan to be delivered to the
Indenture Trustee (or its custodian) in exchange for a Deleted Mortgage
Loan: (i) the Depositor , the Seller, or the Servicer, as applicable,
must deliver to the Indenture Trustee (or a Custodian) the Mortgage File
for the
Qualifying Substitute Mortgage Loan containing the documents set forth in
Section 2.01(b) along with a written certification certifying as to the delivery
of such Mortgage File and containing the granting language set forth in Section
2.01(a); and (ii) the Seller and the Depositor will be deemed to have made,
with
respect to such Qualifying Substitute Mortgage Loan, each of the representations
and warranties made by it with respect to the related
50
Deleted
Mortgage Loan. As soon as practicable after the delivery of any
Qualifying Substitute Mortgage Loan hereunder, the Indenture Trustee, at
the
expense of the Depositor and at the direction and with the cooperation of
the
Servicer shall (i) with respect to a Qualifying Substitute Mortgage Loan
that is
a Non-MERS Mortgage Loan, cause the Assignment of Mortgage to be recorded
by the
Servicer if required pursuant to Section 2.01(c), or (ii) with respect to
a
Qualifying Substitute Mortgage Loan that is a MERS Mortgage Loan, cause to
be
taken such actions as are necessary to cause the Indenture Trustee (on behalf
of
the Issuing Entity) to be clearly identified as the owner of each such Mortgage
Loan on the records of MERS if required pursuant to Section
2.01(c).
ARTICLE
IV
ADMINISTRATION
AND SERVICING OF THE
MORTGAGE
LOANS BY THE SERVICER
Section
4.01. Seller’s
Engagement of
Servicer to Perform Servicing Responsibilities.
(a) Contract
for Servicing;
Possession of Servicing Files. The Seller, as the owner of the
servicing rights, by execution and delivery of this Agreement, does hereby
contract with the Servicer subject to the terms of this Agreement, for the
servicing of the Mortgage Loans for the benefit of the Issuing Entity and
the
Indenture Trustee. The Servicer shall maintain a Servicing File with
respect to each Mortgage Loan in order to service such Mortgage Loans pursuant
to this Agreement and each Servicing File delivered to the Servicer shall
be
held in trust by the Servicer for the benefit of the Issuing Entity and the
Indenture Trustee; provided,
however, that the Servicer shall not have any liability for any Servicing
Files (or portions thereof) not delivered by the Seller. The
Servicer’s possession of any portion of the Mortgage Loan documents shall be at
the will of the Indenture Trustee for the sole purpose of facilitating servicing
of the related Mortgage Loan pursuant to this Agreement, and such retention
and
possession by the Servicer shall be in a custodial capacity only. The
ownership of each Mortgage Note, Mortgage, and the contents of the Servicing
File shall be vested in the Indenture Trustee and the ownership of all records
and documents with respect to the related Mortgage Loan prepared by or which
come into the possession of the Servicer shall immediately vest in the Indenture
Trustee and shall be retained and maintained, in trust, by the Servicer at
the
will of the Indenture Trustee in such custodial capacity only. The
Servicing File retained by the Servicer pursuant to this Agreement shall
be
identified in accordance with the Servicer’s file tracking system to reflect the
ownership of the related Mortgage Loan by the Indenture Trustee. The
Servicer shall release from its custody the contents of any Servicing File
retained by it only in accordance with this Agreement.
(b) Books
and
Records. All rights arising out of the Mortgage Loans shall be
vested in the Indenture Trustee, subject to the Servicer’s rights to service and
administer the Mortgage Loans hereunder in accordance with the terms of this
Agreement. All funds received on or in connection with a Mortgage
Loan, other than the Master Servicing Fee, the Servicing Administration Fee
and
other compensation and reimbursement to which the Servicer is entitled as set
forth herein, including but not limited to Sections 4.04 and 4.21 below,
shall
be received and held by them in trust for the benefit of the Indenture Trustee
pursuant to the terms of this Agreement.
51
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with Section 3.01 within one week of their execution;
provided, however, that
the Servicer shall
provide the Custodian with a Servicer certified true copy of any such document
submitted for recordation within one week of its execution, and shall provide
the original of any document submitted for recordation or a copy of such
document certified by the appropriate public recording office to be a true
and
complete copy of the original within 120 days of its submission for
recordation.
Section
4.02. Servicing
of the Mortgage
Loans.
(a) Servicer
to
Service. The Servicer shall service and administer the
Mortgage Loans from and after the Closing Date and shall have full power
and
authority, acting alone, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or desirable,
consistent with the terms of this Agreement and with Servicing
Standards.
Consistent
with the terms of this Agreement, the Servicer may waive, modify or vary
any
term of any Mortgage Loan or consent to the postponement of strict compliance
with any such term or in any manner grant indulgence to any Mortgagor if
in the
Servicer’s reasonable and prudent determination such waiver, modification,
postponement or indulgence is not materially adverse to the interests of
the
Issuing Entity, the Indenture Trustee and the Noteholders; provided, however, that
unless the Mortgagor is in default, or such default is, in the judgment of
the
Servicer, reasonably foreseeable, the Servicer shall not permit any modification
with respect to any Mortgage Loan that would change the Mortgage Rate, defer
or
forgive the payment of principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or change the
final
maturity date on such Mortgage Loan. In the event of any such
modification which permits the deferral of interest or principal payments
on any
Mortgage Loan, the Servicer shall, on the Servicer Remittance Date in any
month
in which any such principal or interest payment has been deferred, make an
Advance in accordance with Section 4.03(c) in an amount equal to the difference
between (a) such month’s principal and one month’s interest at the Mortgage Loan
Remittance Rate on the unpaid principal balance of such Mortgage Loan and
(b)
the amount paid by the Mortgagor. The Servicer shall be entitled to
reimbursement for such advances to the same extent as for all other Advances
made pursuant to this Agreement. Without limiting the generality of
the foregoing, the Servicer shall continue, and is hereby authorized and
empowered, to execute and deliver on behalf of itself, the Issuing Entity
and
the Indenture Trustee, all instruments of satisfaction or cancellation, or
of
partial or full release, discharge and all other comparable instruments,
with
respect to the Mortgage Loans and with respect to the Mortgaged
Properties. The Indenture Trustee shall execute and deliver to the
Servicer powers of attorney and other documents, including, without limitation,
a power of attorney in the form attached hereto as Exhibit H, furnished
to it by the Servicer and reasonably satisfactory to the Indenture Trustee,
necessary or appropriate to enable the Servicer to carry out its servicing
and
administrative duties under this Agreement; provided that the Indenture
Trustee shall not be liable for the actions of the Servicer under any such
powers of attorney. In accordance with the Servicing Standard, after
the execution of any assumption, modification, consolidation or extension
of any
Mortgage Loan, the Servicer shall update the Servicing File
52
copies
of
any documents evidencing such assumption, modification, consolidation or
extension.
In
servicing and administering the Mortgage Loans, the Servicer shall adhere
to the
Servicing Standard.
(b) Delinquent
and Defaulted
Mortgage Loans. The Servicer, may, at any time either (i)
purchase any delinquent Mortgage Loan in consideration of the Purchase Price
of
such Mortgage Loan or (ii) substitute a defaulted Mortgage Loan with a
Qualifying Substitute Mortgage Loan. Any purchase or substitution
effected by the Servicer in reliance on this Section 4.02(b) shall be performed
in accordance with the terms specified in Section 3.03 hereof.
In
addition, in connection with its management of the liquidation of defaulted
Mortgage Loans, the Servicer may sell defaulted Mortgage Loans; provided, however, that
Servicer shall not take any action that is inconsistent with or prejudices
the
interest of the Noteholders in any Mortgage Loan or the rights and interest
of
the Depositor, the Indenture Trustee, the Master Servicer, the Trust
Administrator, the Custodian and the Noteholders under this
Agreement.
(c) Collection
and Liquidation
of Mortgage Loans. Continuously from the Closing Date, until
the date each Mortgage Loan ceases to be subject to this Agreement, the Servicer
shall proceed diligently to collect all payments due under each of the Mortgage
Loans when the same shall become due and payable and shall take special care
in
ascertaining and estimating Escrow Payments and all other charges that will
become due and payable with respect to the Mortgage Loans and each related
Mortgaged Property, to the end that the installments payable by the Mortgagors
will be sufficient to pay such charges as and when they become due and
payable.
The
Servicer shall use its best efforts, consistent with the Servicing Standard
to
foreclose upon or otherwise comparably convert the ownership of such Mortgaged
Properties as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section 3.01. The Servicer shall use its best efforts to realize upon
defaulted Mortgage Loans in such a manner as will maximize the receipt of
principal and interest by the Trust, taking into account, among other things,
the timing of foreclosure proceedings. The foregoing is subject to
the provisions that, in any case in which Mortgaged Property shall have suffered
damage, the Servicer shall not be required to expend its own funds toward
the
restoration of such property unless it shall determine in its discretion
(i)
that such restoration will increase the proceeds of liquidation of the related
Mortgage Loan to the Issuing Entity and the Indenture Trustee after
reimbursement to itself for such expenses, and (ii) that such expenses will
be
recoverable by the Servicer through Insurance Proceeds or Liquidation Proceeds
from the related Mortgaged Property. In the event that any payment
due under any Mortgage Loan and not otherwise postponed, deferred or waived
pursuant to Section 4.02 is not paid when the same becomes due and payable,
or
in the event the Mortgagor fails to perform any other covenant or obligation
under the Mortgage Loan and such failure continues beyond any applicable
grace
period, the Servicer shall take such action as (1) shall be consistent with
Servicing Standards and (2) the Servicer shall determine prudently to be
in the
best interest of the Issuing Entity, the Indenture Trustee and the
Noteholders. In the event that any payment due under any Mortgage
Loan is not otherwise postponed, deferred or waived pursuant to
Section
53
4.02(a)
and remains delinquent for a period of 105 days or any other default continues
for a period of 105 days beyond the expiration of any grace or cure period,
the
Servicer shall commence foreclosure proceedings. The Servicer shall
notify the Master Servicer in writing of the commencement of foreclosure
proceedings on a monthly basis no later than the fifth Business Day of each
month (which notification may be included within the monthly reports submitted
to the Master Servicer under Section 4.03(b) this Agreement). In such
connection, the Servicer shall be responsible for all costs and expenses
incurred by it in any such proceedings; provided, however, that it
shall be entitled to reimbursement thereof from the related Mortgaged Property,
as contemplated in Sections 4.02(e) and 4.02(p).
Notwithstanding
the generality of the preceding paragraph, the Servicer shall take such actions
generally in accordance with the Servicer’s established default timeline and in
accordance with Servicing Standards with respect to each Mortgage Loan and
Mortgagor for which there is a delinquency until such time as the related
Mortgagor is current with all payments due under the Mortgage Loan.
(d) Establishment
of and
Deposits to Custodial Account.
(i)
The
Servicer shall segregate and hold all funds collected and received pursuant
to
the Mortgage Loans separate and apart from any of its own funds and general
assets and shall initially establish and maintain one or more Custodial
Accounts, in the form of time deposit or demand accounts, each of which accounts
shall be titled “SunTrust Mortgage, Inc. (or
[_____________________________________], as Servicer) in trust for
[_____________________________________], as Indenture Trustee, for the SunTrust
[ ] Trust, Series 200[ ]-[__] Mortgage-Backed
Notes” and referred to herein as a “Custodial Account.” Each
Custodial Account shall be an Eligible Account. Any funds deposited
in the Custodial Account may be invested in Eligible Investments subject
to the
provisions of Section 4.02(j) hereof. Funds deposited in the
Custodial Account may be drawn on by the Servicer in accordance with Section
4.02(e) hereof. The creation of any Custodial Account shall be
evidenced by a letter agreement in the form of Exhibit E hereto. A
copy of such certification or letter agreement shall be furnished to the
Indenture Trustee, the Master Servicer and, upon request, to any subsequent
owner of the Mortgage Loans.
(ii) The
Servicer shall deposit in the Custodial Account on a daily basis, but not
more
than two (2) Business Days after receipt by the Servicer and retain therein,
the
following collections received by the Servicer and payments made by the Servicer
after the related Cut-off Date (other than scheduled payments of principal
and
interest due on or before the related Cut-off Date), as applicable:
(A) all
payments on account of principal on the Mortgage Loans, including all Principal
Prepayments;
(B) all
payments on account of interest on the Mortgage Loans adjusted to the Mortgage
Loan Remittance Rate;
(C) all
Liquidation Proceeds (net of Liquidation Expenses);
54
(D) all
Insurance Proceeds including amounts required to be deposited pursuant to
Section 4.02(k) (other than proceeds to be held in the Escrow Account and
applied to the restoration and repair of the Mortgaged Property or released
to
the Mortgagor in accordance with the related Mortgage Loan documents and
Servicing Standards);
(E) all
Condemnation Proceeds that are not applied to the restoration or repair of
the
Mortgaged Property or released to the Mortgagor in accordance with the related
Mortgage Loan documents and Servicing Standards;
(F) with
respect to each Principal Prepayment in full or in part, the Prepayment Interest
Shortfall Amount, if any, for the month of payment. Such deposit
shall be made from the Servicer’s own funds, without reimbursement therefore, up
to a maximum amount per month in the aggregate of the Servicing Administration
Fee, actually received for such month for the Mortgage Loans;
(G)
all
Advances made by the Servicer pursuant to Section 4.03(c);
(H) any
amounts received from the Seller, the Depositor or any other person giving
representations and warranties with respect to the Mortgage Loans, in connection
with the repurchase of any Mortgage Loan;
(I) any
amounts required to be deposited by the Servicer pursuant to Section 4.03(k)
in
connection with the deductible clause in any blanket hazard insurance
policy;
(J) any
amounts received with respect to or related to any REO Property or REO
Disposition Proceeds pursuant to Section 4.02(p); and
(K) any
other
amounts required to be deposited in the Custodial Account pursuant to this
Agreement.
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of the Servicing Administration
Fee,
Prepayment Interest Excess Amounts and Ancillary Income need not be deposited
by
the Servicer into the Custodial Account. Any interest paid on funds
deposited in the Custodial Account by the depository institution maintaining
such account shall accrue to the benefit of the Servicer and the Servicer
shall
be entitled to retain and withdraw such interest from the Custodial Account
pursuant to Section 3.04. Additionally, any other benefit derived
from the Custodial Account associated with the receipt, disbursement and
accumulation of principal, interest, taxes, hazard insurance, mortgage
insurance, etc. shall accrue to the Servicer.
(e) Permitted
Withdrawals from
Custodial Account.
The
Servicer shall, from time to time, withdraw funds from the Custodial Account
for
the following purposes:
55
(1) to
make
payments to the Master Servicer in the amounts and in the manner provided
for in
Section 4.03(a);
(2)
in the
event the Servicer has elected not to retain the Servicing Administration
Fee
out of any Mortgagor payments on account of interest or other recovery of
interest with respect to a particular Mortgage Loan (including late collections
of interest on such Mortgage Loan, or interest portions of Insurance Proceeds,
Liquidation Proceeds or Condemnation Proceeds) prior to the deposit of such
Mortgagor payment or recovery into the Custodial Account, to pay to itself
the
related Servicing Administration Fee from all such Mortgagor payments on
account
of interest or other such recovery for interest with respect to that Mortgage
Loan;
(3)
to
reimburse itself for unreimbursed Advances and Servicing Advances, the
Servicer’s right to reimburse itself pursuant to this subclause (3) with respect
to any Mortgage Loan being limited to related Liquidation Proceeds (net of
Liquidation Expenses), Condemnation Proceeds, Insurance Proceeds, REO
Disposition Proceeds and other amounts received in respect of the related
REO
Property, and such other amounts as may be collected by the Servicer from
the
Mortgagor or otherwise relating to such Mortgage Loan, it being understood
that,
in the case of any such reimbursement, the Servicer’s right thereto shall be
prior to the rights of the Noteholders;
(4)
to
reimburse itself for any previously unreimbursed Advances or Servicing Advances
that it determines are Nonrecoverable Advances, it being understood, in the
case
of each such reimbursement, that the Servicer’s right thereto shall be prior to
the rights of the Noteholders;
(5) to
pay
itself investment earnings on funds deposited in the Custodial
Account;
(6) to
transfer funds to another Eligible Account in accordance with Section 4.02(j)
hereof;
(7) to
invest
funds in certain Eligible Investments in accordance with Section 4.02(d)(i)
and
Section 4.02(i) hereof;
(8) to
withdraw funds deposited in error;
(9) to
clear
and terminate the Custodial Account upon the termination of this Agreement;
and
(10) to
pay
itself any Prepayment Interest Excess Amount.
(f) Establishment
of and
Deposits to Escrow Account. The Servicer shall segregate and
hold all funds collected and received pursuant to a Mortgage Loan constituting
Escrow Payments separate and apart from any of its own funds and general
assets
and shall establish and maintain one or more Escrow Accounts, in the form
of
time deposit or demand accounts, titled
56
“SunTrust
Mortgage, Inc. (or [_____________________________________], as Servicer)
in
trust for [_____________________________________], as Indenture Trustee,
for the
SunTrust [ ] Trust, Series 200[ ]-[__].” The Escrow
Accounts shall be established with an Eligible Institution in a manner that
shall provide maximum available insurance thereunder. Nothing herein
shall require the Servicer to compel a Mortgagor to establish an Escrow Account
in violation of applicable law. Funds deposited in the Escrow Account
may be drawn on by the Servicer in accordance with Section
4.02(g). The creation of any Escrow Account shall be evidenced by a
letter agreement in the form of Exhibit F hereto. A copy of such
certification or letter agreement shall be furnished to the Master
Servicer.
The
Servicer shall deposit in the Escrow Account or Accounts on a daily basis,
and
retain therein:
(i) all
Escrow Payments collected on account of the Mortgage Loans, for the purpose
of
effecting timely payment of any such items as required under the terms of
this
Agreement; and
(ii) all
amounts representing Insurance Proceeds or Condemnation Proceeds which are
to be
applied to the restoration or repair of any Mortgaged Property.
The
Servicer shall make withdrawals from the Escrow Account only to effect such
payments as are required under this Agreement, as set forth in Section
4.02(g). The Servicer shall be entitled to retain any interest
earnings paid on funds deposited in the Escrow Account by the depository
institution, other than interest on escrowed funds required by law to be
paid to
the Mortgagor. To the extent required by law, the Servicer shall pay
interest on escrowed funds to the Mortgagor notwithstanding that the Escrow
Account may be non-interest bearing or the interest earnings paid thereon
are
insufficient for such purposes.
(g) Permitted
Withdrawals from
Escrow Account. Withdrawals from the Escrow Account or
Accounts may be made by the Servicer only:
(i) to
effect
timely payments of ground rents, taxes, assessments, water rates, mortgage
insurance premiums, condominium charges, fire and hazard insurance premiums
or
other items constituting Escrow Payments for the related Mortgage;
(ii) to
reimburse the Servicer for any Servicing Advance of an Escrow Payment made
by
the Servicer with respect to a related Mortgage Loan, but only from amounts
received on the related Mortgage Loan which represent late collections of
Escrow
Payments thereunder;
(iii) to
refund
to any Mortgagor any funds found to be in excess of the amounts required
to be
escrowed under the terms of the related Mortgage Loan;
(iv) to
the
extent permitted by applicable law, for transfer to the Custodial Account
and
application to reduce the principal balance of the Mortgage Loan in accordance
with the terms of the related Mortgage and Mortgage Note;
57
(v) for
application to restoration or repair of the Mortgaged Property in accordance
with Section 4.02(o);
(vi) to
pay to
the Servicer, or any Mortgagor to the extent required by law, any interest
paid
on the funds deposited in the Escrow Account; and
(vii) to
clear
and terminate the Escrow Account on the termination of this
Agreement.
The
Servicer will be responsible for the administration of the Escrow Accounts
and
will be obligated to make Servicing Advances to the Escrow Account in respect
of
its obligations under this Agreement , reimbursable from the Escrow Accounts
or
Custodial Account to the extent not collected from the related Mortgagor,
anything to the contrary notwithstanding, when and as necessary to avoid
the
lapse of insurance coverage on the Mortgaged Property, or which the Servicer
knows, or in servicing the Mortgage Loans in accordance with Servicing Standards
should know, is necessary to avoid the loss of the Mortgaged Property due
to a
tax sale or the foreclosure as a result of a tax lien. If any such
payment has not been made and the Servicer receives notice of a tax lien
with
respect to the Mortgage being imposed, the Servicer will advance or cause
to be
advanced funds necessary to discharge such lien on the Mortgaged Property
in
order to prevent loss of title to the Mortgaged Property.
(h) Notification
of
Adjustments. With respect to each Mortgage Loan, the Servicer
shall adjust the Mortgage Rate on the related interest rate adjustment date
and
shall adjust the Scheduled Payment on the related mortgage payment adjustment
date, if applicable, in compliance with the requirements of applicable law
and
the related Mortgage and Mortgage Note. The Servicer shall execute
and deliver any and all necessary notices required under applicable law and
the
terms of the related Mortgage Note and Mortgage regarding the Mortgage Rate
and
Scheduled Payment adjustments. The Servicer shall promptly, upon
written request therefor, deliver to the Master Servicer such notifications
and
any additional applicable data regarding such adjustments and the methods
used
to calculate and implement such adjustments. Upon the discovery by
the Servicer or the receipt of notice from the Master Servicer that the Servicer
has failed to adjust a Mortgage Rate or Scheduled Payment in accordance with
the
terms of the related Mortgage Note, the Servicer shall immediately deposit
in
the Custodial Account from its own funds the amount of any interest loss
or
deferral caused the Seller thereby.
(i) Payment
of Taxes, Insurance
and Other Charges.
(i) With
respect to each Mortgage Loan which provides for Escrow Payments, the Servicer
shall maintain accurate records reflecting the status of ground rents, taxes,
assessments, water rates, sewer rents, and other charges which are or may
become
a lien upon the Mortgaged Property and the status of fire and hazard insurance
coverage and shall obtain, from time to time, all bills for the payment of
such
charges (including renewal premiums) (“Property Charges”)
and shall effect payment thereof prior to the applicable penalty or termination
date, employing for such purpose deposits of the Mortgagor in the Escrow
Account
which shall have been estimated and accumulated by the Servicer in amounts
sufficient for such purposes, as allowed under the terms of the
Mortgage. The Servicer shall effect timely payment
58
of
all
such charges irrespective of each Mortgagor’s faithful performance in the
payment of the same or the making of the Escrow Payments.
(ii) To
the
extent that a Mortgage does not provide for Escrow Payments, the Servicer
shall
make Servicing Advances from its own funds to effect payment of all Property
Charges upon receipt of notice of any failure to pay on the part of the
Mortgagor, or at such other time as the Servicer determines to be in the
best
interest of the Trust; provided, that
in any event the
Servicer shall pay such charges on or before any date by which payment is
necessary to preserve the lien status of the Mortgage. The Servicer
shall pay any late fee or penalty which is payable due to any delay in payment
of any Property Charge and necessary to avoid a lien on or loss on Mortgage
Property.
(j) Protection
of
Accounts. The Servicer may transfer the Custodial Account or
the Escrow Account to a different Eligible Institution from time to
time. Such transfer shall be made only upon obtaining the consent of
the Master Servicer, which consent shall not be withheld unreasonably, and
the
Servicer shall give notice to the Master Servicer, the Indenture Trustee
and the
Swap Counterparty of any change in the location of the Custodial
Account.
The
Servicer shall bear any expenses, losses or damages sustained by the Master
Servicer or the Indenture Trustee if the Custodial Account and/or the Escrow
Account are not Eligible Accounts.
Amounts
on deposit in the Custodial Account and the Pre-Funding Account may be invested
at the option of the Servicer and the Seller, respectively, but only in Eligible
Investments. Any such Eligible Investment with respect to the
Custodial Account shall mature no later than two (2) Business Days prior
to the
Servicer Remittance Date in each month; provided,however, that
if such Eligible
Investment is an obligation of an Eligible Institution (other than the Servicer)
that maintains the Custodial Account, then such Eligible Investment may mature
on the related Servicer Remittance Date. Any such Eligible Investment
shall be made in the name of the Servicer (with respect to the Custodial
Account) and the Seller (with respect to the Pre-Funding Account) in trust
for
the benefit of the Indenture Trustee. All income on or gain realized
from any such Eligible Investment shall be for the benefit of the Servicer
(with
respect to the Custodial Account) and the Seller (with respect to the
Pre-Funding Account) and may be withdrawn at any time by the Servicer (with
respect to the Custodial Account) and the Seller (with respect to the
Pre-Funding Account). Any losses incurred in respect of any such
investment shall be deposited in the Custodial Account by the Servicer (with
respect to the Custodial Account) and the Seller (with respect to the
Pre-Funding Account) out of its own funds immediately as
realized. If, at any time, the amount on deposit in the Custodial
Account or the Pre-Funding Account exceeds the amount of the applicable FDIC
insurance, such excess above the amount of the applicable FDIC insurance
shall
be invested in Eligible Investments.
(k) Maintenance
of Hazard
Insurance. The Servicer shall cause to be maintained for each
Mortgage Loan hazard insurance such that all buildings upon the Mortgaged
Property are insured by a generally acceptable insurer acceptable under
Servicing Standards against loss by fire, hazards of extended coverage and
such
other hazards as are customary in the area where the Mortgaged Property is
located, in an amount which is at least equal to the lesser of (i) the
replacement value of the improvements securing such Mortgage Loan and (ii)
the
greater of (a)
59
the
outstanding principal balance of the Mortgage Loan and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor or the
loss
payee from becoming a co-insurer.
If
upon
origination of the Mortgage Loan the related Mortgaged Property was located
in
an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards (and such flood insurance has been
made
available), a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration shall be in effect with
a
generally acceptable insurance carrier acceptable under Servicing Standards
in
an amount representing coverage equal to the lesser of (i) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss
on a
replacement cost basis (or the unpaid balance of the mortgage if replacement
cost coverage is not available for the type of building insured) and (ii)
the
maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. If at any time during the term of
the Mortgage Loan, the Servicer determines in accordance with applicable
law and
pursuant to Servicing Standards that a Mortgaged Property is located in a
special flood hazard area and is not covered by flood insurance or is covered in
an amount less than the amount required by the Flood Disaster Protection
Act of
1973, as amended, the Servicer shall notify the related Mortgagor that the
Mortgagor must obtain such flood insurance coverage, and if said Mortgagor
fails
to obtain the required flood insurance coverage within thirty (30) days after
such notification, the Servicer shall immediately force place the required
flood
insurance on the Mortgagor’s behalf.
The
Servicer shall cause to be maintained on each Mortgaged Property such other
or
additional insurance as may be required pursuant to such applicable laws
and
regulations as shall at any time be in force and as shall require such
additional insurance, or pursuant to the requirements of any private mortgage
guaranty insurer, or as may be required to conform with Servicing
Standards.
In
the
event that the Master Servicer or the Servicer shall determine that the
Mortgaged Property should be insured against loss or damage by hazards and
risks
not covered by the insurance required to be maintained by the Mortgagor pursuant
to the terms of the Mortgage, the Servicer shall communicate and consult
with
the Mortgagor with respect to the need for such insurance and bring to the
Mortgagor’s attention the desirability of protection of the Mortgaged
Property.
All
policies required hereunder shall name the Servicer as loss payee and shall
be
endorsed with standard or union mortgagee clauses, without contribution,
which
shall provide for at least 30 days prior written notice of any cancellation,
reduction in amount or material change in coverage.
The
Servicer shall not interfere with the Mortgagor’s freedom of choice in selecting
either his insurance carrier or agent; provided,however, that
the Servicer shall
not accept any such insurance policies from insurance companies unless such
companies are generally acceptable under Servicing Standards. The
Servicer shall determine that such policies provide sufficient risk coverage
and
amounts, that they insure the property owner, and that they properly describe
the property address. The Servicer shall furnish to the Mortgagor a
formal notice of
60
expiration
of any such insurance in sufficient time for the Mortgagor to arrange for
renewal coverage by the expiration date.
Pursuant
to Section 4.02(d), any amounts collected by the Servicer under any such
policies (other than amounts to be deposited in the Escrow Account and applied
to the restoration or repair of the related Mortgaged Property, or property
acquired in liquidation of the Mortgage Loan, or to be released to the
Mortgagor, in accordance with the Servicer’s normal servicing procedures) shall
be deposited in the Custodial Account subject to withdrawal pursuant to Section
4.02(e).
Notwithstanding
anything set forth in the preceding paragraph, the Servicer agrees to indemnify
the Indenture Trustee, the Issuing Entity, the Noteholders and the Master
Servicer for any claims, losses, damages, penalties, fines, forfeitures,
legal
fees and related costs, judgments and any other costs, fees and expenses
that
any such indemnified party may sustain in any way related to the failure
of the
Mortgagor (or the Servicer) to maintain hazard or flood insurance with respect
to the related Mortgaged Property which complies with the requirements of
this
section.
(l) Maintenance
of Mortgage
Impairment Insurance. In the event that the Servicer shall
obtain and maintain a blanket policy insuring against losses arising from
fire
and hazards covered under extended coverage on all of the Mortgage Loans,
then,
to the extent such policy provides coverage in an amount equal to the amount
required pursuant to Section 4.02(k) and otherwise complies with all other
requirements of Section 4.02(k), it shall conclusively be deemed to have
satisfied its obligations as set forth in Section 4.02(k). Any
amounts collected by the Servicer under any such policy relating to a Mortgage
Loan shall be deposited in the Custodial Account subject to withdrawal pursuant
to Section 4.02(e). Such policy may contain a deductible clause, in
which case, in the event that there shall not have been maintained on the
related Mortgaged Property a policy complying with Section 4.02(k), and there
shall have been a loss which would have been covered by such policy, the
Servicer shall deposit in the Custodial Account at the time of such loss
the
amount not otherwise payable under the blanket policy because of such deductible
clause, such amount to deposited from the Servicer’s funds, without
reimbursement therefor. Upon request of the Master Servicer or the
Indenture Trustee, the Servicer shall cause to be delivered to such person
a
certified true copy of such policy and a statement from the insurer thereunder
that such policy shall in no event be terminated or materially modified without
30 days’ prior written notice to the Master Servicer and the Indenture
Trustee.
(m) Maintenance
of Fidelity Bond
and Errors and Omissions Insurance. The Servicer shall
maintain with responsible companies, at its own expense, a blanket Fidelity
Bond
and an Errors and Omissions Insurance Policy, with broad coverage on all
officers, employees or other persons acting in any capacity requiring such
persons to handle funds, money, documents or papers relating to the Mortgage
Loans (“Servicer
Employees”). Any such Fidelity Bond and Errors and Omissions
Insurance Policy shall be in the form of the Mortgage Banker’s Blanket Bond and
shall protect and insure the Servicer against losses, including forgery,
theft,
embezzlement, fraud, errors and omissions and negligent acts of such Servicer
Employees. Such Fidelity Bond and Errors and Omissions Insurance
Policy also shall protect and insure the Servicer against losses in connection
with the release or satisfaction of a Mortgage Loan without
61
having
obtained payment in full of the indebtedness secured thereby. No
provision of this Section 4.02(m) requiring such Fidelity Bond and Errors
and
Omissions Insurance Policy shall diminish or relieve the Servicer from its
duties and obligations as set forth in this Agreement. The minimum
coverage under any such bond and insurance policy shall be at least equal
to the
coverage amounts which are acceptable for the Servicer as determined by Xxxxxx
Xxx and Xxxxxxx Mac. Upon the request of the Master Servicer or the
Indenture Trustee, the Servicer shall cause to be delivered to such party
a
certified true copy of such fidelity bond and insurance policy and a statement
from the surety and the insurer that such fidelity bond and insurance policy
shall in no event be terminated or materially modified without 30 days’ prior
written notice to the Master Servicer and the Indenture Trustee.
(n) Inspections. The
Servicer shall inspect the Mortgaged Property as often as deemed necessary
by
the Servicer to assure itself that the value of the Mortgaged Property is
being
preserved. In addition, the Servicer shall inspect the Mortgaged
Property and/or take such other actions as may be necessary or appropriate
in
accordance with Servicing Standards or as may be required by the primary
mortgage guaranty insurer. The Servicer shall keep a written report
of each such inspection.
(o) Restoration
of Mortgaged
Property. The Servicer need not obtain the approval of the
Master Servicer or the Indenture Trustee prior to releasing any Insurance
Proceeds or Condemnation Proceeds to the Mortgagor to be applied to the
restoration or repair of the Mortgaged Property if such release is in accordance
with Servicing Standards. At a minimum, the Servicer shall comply
with the following conditions in connection with any such release of Insurance
Proceeds or Condemnation Proceeds:
(i) the
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) the
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens; and
(iii) pending
repairs or restoration, the Servicer shall place the Insurance Proceeds or
Condemnation Proceeds in the Escrow Account.
(p) Title,
Management and
Disposition of REO Property. In the event that title to any
Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure,
the deed or certificate of sale shall be taken in the name of the Indenture
Trustee or its nominee in trust for the benefit of the Noteholders and the
Swap
Counterparty, or in the event the Indenture Trustee is not authorized or
permitted to hold title to real property in the state where the REO Property
is
located, or would be adversely affected under the “doing business” or tax laws
of such state by so holding title, the deed or certificate of sale shall
be
taken in the name of such Person or Persons as shall be consistent with an
Opinion of Counsel obtained by the Servicer (with a copy delivered to the
Indenture Trustee) from any attorney duly licensed to practice law in the
state
where the REO Property is located. The Person or Persons holding such
title other than the Indenture Trustee shall acknowledge in writing that
such
title is being held as nominee for the Indenture Trustee.
62
The
Servicer shall manage, conserve, protect and operate each REO Property for
the
Indenture Trustee solely for the purpose of its prompt disposition and
sale. The Servicer, either itself or through an agent selected by the
Servicer, shall manage, conserve, protect and operate the REO Property in
the
same manner that it manages, conserves, protects and operates other foreclosed
property for its own account, and in the same manner that similar property
in
the same locality as the REO Property is managed. The Servicer shall
attempt to sell the same (and may temporarily rent the same for a period
not
greater than one year, except as otherwise provided below) on such terms
and
conditions as the Servicer deems to be in the best interest of the Issuing
Entity, the Indenture Trustee and the Noteholders.
If
the
Servicer hereafter becomes aware that a Mortgaged Property is an Environmental
Problem Property, the Servicer will notify the Master Servicer of the existence
of the Environmental Problem Property. Additionally, the Servicer
shall set forth in such notice a description of such problem, a recommendation
to the Master Servicer relating to the proposed action regarding the
Environmental Problem Property, and the Servicer shall carry out the
recommendation set forth in such notice. Notwithstanding the
foregoing, the Servicer shall obtain the Master Servicer’s prior written consent
to any expenditures proposed to remediate Environmental Problem Properties
or to
defend any claims associated with Environmental Problem Properties if such
expenses, in the aggregate, are expected to exceed $100,000. Failure
to provide written notice of disapproval of the expenditure within five (5)
Business Days of receipt of such request for prepaid expenditures shall be
deemed an approval of such expenditure. If the Servicer has received
reliable instructions to the effect that a Property is an Environmental Problem
Property (e.g., Servicer obtains a broker’s price opinion which reveals the
potential for such problem), the Servicer will not accept a deed-in-lieu
of
foreclosure upon any such Property without first obtaining a preliminary
environmental investigation for the Property.
The
Servicer shall also maintain on each REO Property fire and hazard insurance
with
extended coverage in amount which is at least equal to the maximum insurable
value of the improvements which are a part of such property and, to the extent
required and available under the Flood Disaster Protection Act of 1973, as
amended, flood insurance in the amount required above.
The
proceeds of sale of the REO Property shall be promptly deposited in the
Custodial Account. As soon as practical thereafter the expenses of
such sale shall be paid and the Servicer shall reimburse itself for any related
unreimbursed Servicing Advances, unpaid Servicing Administration Fees and
unreimbursed advances made pursuant to this Section or Section
4.03.
The
Servicer shall make Servicing Advances of all funds necessary for the proper
operation, management and maintenance of the REO Property, including the
cost of
maintaining any hazard insurance pursuant to Section 4.02(k), such advances
to
be reimbursed from the disposition or liquidation proceeds of the REO
Property. The Servicer shall make monthly remittances on each
Servicer Remittance Date to the Master Servicer of the net cash flow from
the
REO Property (which shall equal the revenues from such REO Property net of
the
expenses described in this Section 4.02(p) and of any reserves reasonably
required from time to time to be maintained to satisfy anticipated liabilities
for such expenses).
63
(q) Real
Estate Owned
Reports. Together with the statement furnished pursuant to
Section 4.03(b), the Servicer shall furnish to the Master Servicer on or
before
the 10th calendar day in each month a statement with respect to any REO Property
covering the operation of such REO Property for the previous month and the
Servicer’s efforts in connection with the sale of such REO Property and any
rental of such REO Property incidental to the sale thereof for the previous
month. That statement shall be accompanied by such other information
as the Master Servicer shall reasonably request.
(r) Liquidation
Reports. Upon the foreclosure sale of any Mortgaged Property
or the acquisition thereof by the Indenture Trustee pursuant to a deed in
lieu
of foreclosure, the Servicer shall submit to the Indenture Trustee and the
Master Servicer a monthly liquidation report with respect to such Mortgaged
Property.
(s) Information
Reports. The Servicer shall file any information reports or
returns with respect to the receipt of mortgage interest received in a trade
or
business, foreclosures and abandonments of any Mortgaged Property and the
information returns relating to cancellation of indebtedness income with
respect
to any Mortgaged Property required by Sections 6050H, 6050J and 6050P of
the
Code, respectively. Such reports shall be in form and substance sufficient
to
meet the reporting requirements imposed by such Sections 6050H, 6050J and
6050P
of the Code.
(t) Prepayment
Premiums. All Prepayment Premiums collected shall be payable
to the holder of the Ownership Certificate and shall not be available to
make
payments to the Noteholders or the Swap Counterparty hereunder.
(u) Compliance
with Safeguarding
Customer Information Requirements. The Servicer has
implemented and will maintain security measures designed to meet the objectives
of the Interagency Guidelines Establishing Standards for Safeguarding Customer
Information published in final form on February 1, 2001, 66 Fed. Reg. 8616,
and
the rules promulgated thereunder, as amended from time to time (the
“Guidelines”).
(v) Presentment
of Claims and
Collection of Proceeds. The Servicer shall prepare and present
on behalf of the Indenture Trustee and the Noteholders all claims under the
Insurance Policies with respect to the Mortgage Loans, 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 Servicer in respect of such
policies or bonds shall be promptly deposited in the Custodial 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 requisite
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
4.03. Payments
To the Master
Servicer.
(a) Remittances. On
each Servicer Remittance Date, the Servicer shall remit on a scheduled/scheduled
basis by wire transfer of immediately available funds to the Master Servicer
(a)
all amounts deposited in the Custodial Account as of the close of business
on
the last day of the related Due Period (net of charges against or withdrawals
from the Custodial Account pursuant to Section 4.02(e)), plus (b) all Advances,
if any, which the Servicer is obligated to
64
make
pursuant to Section 4.03(c), minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds
or
REO Disposition Proceeds received after the applicable Prepayment Period,
which
amounts shall be remitted on the following Servicer Remittance Date, together
with any additional interest required to be deposited in the Custodial Account
in connection with such Principal Prepayment in accordance with Section
4.02(d)(ii)(G) and Section 4.04(c), and minus (d) any amounts
attributable to Scheduled Payments collected but due on a Due Date or Due
Dates
subsequent to the first day of the month in which such Servicer Remittance
Date
occurs, which amounts shall be remitted on the Servicer Remittance Date next
succeeding the Due Date related to such Scheduled Payment.
With
respect to any remittance received by the Master Servicer after the Servicer
Remittance Date on which such remittance was due, the Servicer shall pay
to the
Master Servicer interest on any such late remittance at an annual rate equal
to
the Prime Rate, adjusted as of the date of each change, plus three percentage
points, but in no event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the
Servicer on the date such late remittance is made and shall cover the period
commencing with the day following such Servicer Remittance Date and ending
with
the Business Day on which such remittance is made, both
inclusive. Such interest shall be remitted on the next succeeding
Servicer Remittance Date. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver
of any
Event of Default by the Servicer.
All
remittances required to be made to the Master Servicer shall be made to the
following wire account or to such other account as may be specified by the
Master Servicer from time to time:
[____________]
[____________]
ABA#: [____________]
Account
Name: [____________]
Account
Number: [____________]
For
further credit to: [____________],
[ ] 200[
]-[__]
(b) Statements
to Master
Servicer and Trust Administrator. On the 10th
day of
each calendar month (or, if such 10th
day is
not a Business Day, then on the next succeeding Business Day), the Servicer
shall furnish to the Master Servicer (i) a monthly remittance advice in the
format set forth in Exhibit G-1 hereto, a monthly defaulted loan report in
the
format set forth in Exhibit G-2 hereto and a realized loss report in the
format
set forth in Exhibit G-3 hereto (or in such other format mutually agreed
to
between the Servicer and the Master Servicer) relating to the period ending
on
the last day of the preceding calendar month and (ii) all such information
required pursuant to clause (i) above on a magnetic tape or other similar
media
reasonably acceptable to the Master Servicer. No later than three
Business Days after the fifteenth day of each calendar month, the Servicer
shall
furnish to the Master Servicer a monthly report containing such information
regarding prepayments of Mortgage Loans during the applicable Prepayment
Period
and in a format as mutually agreed to between the Servicer and the Master
Servicer.
65
Such
monthly remittance advice shall also be accompanied by a supplemental report
provided to the Master Servicer and the Seller which includes on an aggregate
basis for the previous calendar month (i) the amount of any insurance claims
filed, (ii) the amount of any claim payments made and (iii) the amount of
claims
denied or curtailed. The Master Servicer will convert such data into
a format acceptable to the Trust Administrator and provide monthly reports
to
the Trust Administrator pursuant to the Trust Agreement.
In
addition, not more than 75 days after the end of each calendar year, commencing
December 31, 200[ ], the Servicer shall provide (as such information becomes
reasonably available to the Servicer) to the Master Servicer and the Trust
Administrator such information concerning the Mortgage Loans and annual
remittances to the Master Servicer therefrom as is necessary for the Trust
Administrator to prepare the reports required by Section
5.09(c). Such obligation of the Servicer shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Servicer to the Master Servicer and the Trust Administrator
pursuant to any requirements of the Code as from time to time are in
force. The Servicer shall also provide to the Trust Administrator
such information as may be requested by it and required for the completion
of
any tax reporting responsibility of the Trust Administrator within such
reasonable time frame as shall enable the Trust Administrator to timely file
each Schedule Q (or other applicable tax report or return) required to be
filed
by it.
(c) Advances
by
Servicer. On each Servicer Remittance Date, the Servicer shall
deposit in the Custodial Account from its own funds or from amounts held
for
future payment, or a combination of both, an amount equal to all Scheduled
Payments (with interest adjusted to the Mortgage Loan Remittance Rate) which
were due on the Mortgage Loans during the applicable Due Period and which
were
delinquent at the close of business on the immediately preceding Determination
Date. Any amounts held for future payment and so used shall be
replaced by the Servicer by deposit in the Custodial Account on or before
any
future Servicer Remittance Date if funds in the Custodial Account on such
Servicer Remittance Date shall be less than remittances to the Master Servicer
required to be made on such Servicer Remittance Date. The Servicer
shall keep appropriate records of such amounts and will provide such records
to
the Master Servicer upon request.
The
Servicer’s obligation to make such Advances as to any Mortgage Loan will
continue through the last Scheduled Payment due prior to the payment in full
of
the Mortgage Loan, or through the last Remittance Date prior to the Remittance
Date for the payment of all Liquidation Proceeds and other payments or
recoveries (including Insurance Proceeds and Condemnation Proceeds) with
respect
to the related Mortgage Loan.
Notwithstanding
the foregoing, if the Servicer fails to make any Advance required to be made
by
this Section 4.03 with respect to any Remittance Date, then the Master Servicer
as successor servicer shall be obligated to make such Advance, subject to
its
determination of the recoverability of such Advance.
(d) Due
Dates Other Than the
First of the Month. Mortgage Loans having Due Dates other than
the first day of a month shall be accounted for as described in this Section
4.03(d). Any Scheduled Payment due on a day other than the first day
of each month shall be considered due on the first day of the month following
the month in which that payment is due as if such
66
payment
were due on the first day of that month. For example, a Scheduled
Payment due on November 15 shall be considered to be due on December
1. Any Scheduled Payment due and collected on a Mortgage Loan after
the Cut-off Date shall be deposited in the Custodial Account. For
Mortgage Loans with Due Dates on the first day of a month, deposits to the
Custodial Account begin with the Scheduled Payment due on the first of the
month
following the Cut-off Date.
(e) Credit
Reporting. For each Mortgage Loan, in accordance with its
current servicing practices, the Servicer will accurately and fully report
its
underlying borrower credit files to each of the following credit repositories
or
their successors: Equifax Credit Information Services, Inc., Trans
Union, LLC and Experian Information Solution, Inc., on a monthly basis in
a
timely manner. In addition, with respect to any Mortgage Loan
serviced for a Xxxxxx Mae pool, the Servicer shall transmit full credit
reporting data to each of such credit repositories in accordance with Xxxxxx
Xxx
Guide Announcement 95-19 (November 11, 1995), a copy of which is attached
hereto
as Exhibit K, reporting each of the following statuses, each month with respect
to a Mortgage Loan in a Xxxxxx Mae pool: New origination, current,
delinquent (30-60-90-days, etc), foreclosed or charged off.
Section
4.04. General
Servicing
Procedures.
(a) Transfers
of Mortgaged
Property. The Servicer shall use its best efforts to enforce
any “due-on-sale” provision contained in any Mortgage or Mortgage Note and to
deny assumption by the person to whom the Mortgaged Property has been or
is
about to be sold whether by absolute conveyance or by contract of sale, and
whether or not the Mortgagor remains liable on the Mortgage and the Mortgage
Note. When the Mortgaged Property has been conveyed by the Mortgagor,
the Servicer shall, to the extent it has knowledge of such conveyance, exercise
its rights to accelerate the maturity of such Mortgage Loan under the
“due-on-sale” clause applicable thereto; provided,
however, that the
Servicer shall
not exercise such rights if prohibited by law from doing so.
If
the
Servicer reasonably believes it is unable under applicable law to enforce
such
“due-on-sale” clause, the Servicer shall enter into (i) an assumption and
modification agreement with the person to whom such property has been conveyed
pursuant to which such person becomes liable under the Mortgage Note and
the
original Mortgagor remains liable thereon or (ii) in the event the Servicer
is
unable under applicable law to require that the original Mortgagor remain
liable
under the Mortgage Note and the Servicer has the prior consent of the primary
mortgage guaranty insurer, a substitution of liability agreement with the
seller
of the Mortgaged Property pursuant to which the original Mortgagor is released
from liability and the buyer of the Mortgaged Property is substituted as
Mortgagor and becomes liable under the Mortgage Note. In connection
with any such assumption, neither the Mortgage Rate borne by the related
Mortgage Note, the timing of principal or interest payments on the Mortgage
Loan, the term of the Mortgage Loan nor the outstanding principal amount
of the
Mortgage Loan shall be changed.
To
the
extent that any Mortgage Loan is assumable, the Servicer shall inquire
diligently into the creditworthiness of the proposed transferee, and shall
use
the underwriting criteria for approving the credit of the proposed transferee
which are used by the Servicer, its affiliates or Xxxxxx Xxx with respect
to
underwriting mortgage loans of the same type as the Mortgage
67
(b) Satisfaction
of Mortgages
and Release of Mortgage Files. Upon the payment in full of any
Mortgage Loan, or the receipt by the Servicer of a notification that payment
in
full will be escrowed in a manner customary for such purposes, the Servicer
shall notify the Master Servicer in the monthly remittance advice as provided
in
Section 4.03(b), and may request the release of any Mortgage Loan Documents
from
the Custodian in accordance with the Custodial Agreement.
If
the
Servicer satisfies or releases a Mortgage without first having obtained payment
in full of the indebtedness secured by the Mortgage or should the Servicer
otherwise prejudice any rights the Seller, the Indenture Trustee or the Issuing
Entity may have under the mortgage instruments, the Servicer shall deposit
into
the Custodial Account the entire outstanding principal balance, plus all
accrued
interest on such Mortgage Loan, on the day preceding the Servicer Remittance
Date in the month following the date of such release. The Servicer
shall maintain the Fidelity Bond and Errors and Omissions Insurance Policy
as
provided for in Section 4.02(m) insuring the Servicer against any loss it
may
sustain with respect to any Mortgage Loan not satisfied in accordance with
the
procedures set forth herein.
(c) Servicing
Compensation. As consideration for servicing the Mortgage
Loans subject to this Agreement, the Servicer shall be paid in the aggregate
the
relevant Servicing Administration Fee for each Mortgage Loan remaining subject
to this Agreement during any month or part thereof. Such Servicing
Administration Fee shall be payable monthly and retained by the
Servicer. Additional servicing compensation in the form of Ancillary
Income shall be retained by the Servicer only and is not required to be
deposited in the Custodial Account. The obligation of the Issuing
Entity to pay the Servicing Administration Fee is limited to, and the Servicing
Administration Fee is payable from, the interest portion (including recoveries
with respect to interest from Liquidation Proceeds) of such Scheduled Payment
collected by the Servicer, or as otherwise provided in Section
4.02(e)(2).
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder and shall not be entitled to reimbursement
thereof except as specifically provided for herein.
The
Servicing Administration Fee payable to or retained by the Servicer with
respect
to any Due Period shall be reduced by the Prepayment Interest Shortfall Amount
for the related Prepayment Period required to be deposited in the Custodial
Account and remitted to the Master Servicer on the related Servicer Remittance
Date. The Servicer shall be obligated to remit to the Master Servicer
on each Servicer Remittance Date the Prepayment Interest Shortfall Amount,
only
up to an amount equal to in the aggregate the Servicing Administration Fee
the
Servicer is entitled to receive for such Due Period.
(d) Annual
Audit
Report. The Servicer shall, at its own expense, cause a firm
of independent public accountants (who may also render other services to
the
Servicer), which is a member of the American Institute of Certified Public
Accountants, to furnish, as soon as
68
practicable
in each year beginning with 200[ ], but in no event later than March
15 of each calendar year, to the Seller, the Master Servicer, the Indenture
Trustee and the Sarbanes Certifying Party (i) year-end audited (if available)
financial statements of the Servicer and (ii) a statement to the effect that
such firm has examined certain documents and records for the preceding fiscal
year (or during the period from the date of commencement of such Servicer’s
duties hereunder until the end of such preceding fiscal year in the case
of the
first such certificate) and that, on the basis of such examination conducted
substantially in compliance with the Uniform Single Attestation Program for
Mortgage Bankers, such firm is of the opinion that the Servicer’s overall
servicing operations have been conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers except for such exceptions that,
in the
opinion of such firm, the Uniform Single Attestation Program for Mortgage
Bankers requires it to report, in which case such exceptions shall be set
forth
in such statement.
(e) Annual
Assessment and
Attestation. By March 15 of each year, commencing in March
200[ ], the Servicer, at its own expense, shall furnish to the Trust
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 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
8.02, 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.
By
March
15 of each year, commencing in March 200[ ], the Servicer, at its own
expense, shall cause, and 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 Servicer, 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 Trust 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 PCAOB, 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.
(f) Inspection. The
Servicer shall provide the Indenture Trustee and the Master Servicer, upon
five
(5) Business Days’
advance notice,
during normal business hours, access to all records maintained
by the Servicer in respect of its rights and obligations hereunder and access
to
officers of the Servicer responsible for such obligations. Upon
request, the Servicer
69
shall
furnish to the Indenture Trustee and the Master Servicer its most recent
publicly available financial statements and such other information relating
to
its capacity to perform its obligations under this Agreement.
Section
4.05. Representations,
Warranties
and Agreements.
(a) Representations,
Warranties
and Agreements of the Servicer. The Servicer, as a condition
to the consummation of the transactions contemplated hereby, hereby makes
the
following representations and warranties to the Master Servicer, the Swap
Counterparty, the Depositor, the Indenture Trustee and the Trust Administrator,
as of the Closing Date:
(i) Due
Organization and
Authority. The Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth
of
Virginia and is duly authorized and licensed to service the mortgage loans
(including without limitation the Mortgage Loans) and to carry on its business
as now being conducted as an operating subsidiary of a Georgia banking
corporation; the Servicer has the full corporate power and authority to execute
and deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and
the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Servicer (except to the extent bankruptcy, insolvency,
reorganization, fraudulent conveyance or similar laws affect the enforcement
of
creditor’s rights generally) and all requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(ii) Ordinary
Course of
Business. The consummation of the transactions contemplated by
this Agreement are in the ordinary course of business of the
Servicer;
(iii) No
Conflicts. Neither the execution and delivery of this
Agreement, the acquisition of the servicing responsibilities by the Servicer
or
the transactions contemplated hereby, nor the fulfillment of or compliance
with
the terms and conditions of this Agreement, will (a) conflict with or result
in
a breach of any of the terms, conditions or provisions of the Servicer’s
partnership agreement or any legal restriction or any agreement or instrument
to
which the Servicer is now a party or by which it is bound, (b) constitute
a
default under any of the foregoing, (c) result in an acceleration under any
of
the foregoing, (d) result in the violation of any law, rule, regulation,
order,
judgment or decree to which the Servicer or its property is subject or (e)
impair the ability of the Servicer to act as Servicer hereunder with respect
to
the Mortgage Loans, or impair the value of the Mortgage Loans;
(iv) Ability
to
Perform. The Servicer does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in this Agreement;
(v) No
Litigation
Pending. There is no action, suit, proceeding or investigation
pending or, to the Servicer’s knowledge, threatened against the Servicer which,
either in any one instance or in the aggregate, may result in any material
adverse change in the
70
business,
operations, financial condition, properties or assets of the Servicer, or
in any
material impairment of the right or ability of the Servicer to carry on its
business substantially as now conducted, or in any material liability on
the
part of the Servicer, or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
obligations of the Servicer contemplated herein, or which would be likely
to
impair materially the ability of the Servicer to perform under the terms
of this
Agreement;
(vi) No
Consent
Required. No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery
and
performance by the Servicer of or compliance by the Servicer with this
Agreement, or if required, such approval has been obtained prior to the Closing
Date;
(vii) No
Default. The Servicer is not in default, and no event or
condition exists that after the giving of notice or lapse of time or both,
would
constitute an event of default under any material mortgage, indenture, contract,
agreement, judgment, or other undertaking, to which the Servicer is a party
or
which purports to be binding upon it or upon any of its assets, which default
could impair materially the ability of the Servicer to perform under the
terms
of this Agreement;
(viii) Ability
to Service.
The Servicer is an approved seller/servicer of conventional residential mortgage
loans for Xxxxxx Xxx and Xxxxxxx Mac, with the facilities, procedures and
experienced personnel necessary for the sound servicing of mortgage loans
of the
same type as the Mortgage Loans. The Servicer is in good standing to
service mortgage loans for either Xxxxxx Mae or Xxxxxxx Mac, and no event
has
occurred, including but not limited to a change in insurance coverage, which
would make the Servicer unable to comply with either Xxxxxx Mae or Xxxxxxx
Mac
eligibility requirements or which would require notification to either of
Xxxxxx
Mae or Xxxxxxx Mac; and
(ix) No
Untrue
Information. Neither this Agreement nor any statement, report
or other document furnished or to be furnished by the Servicer pursuant to
this
Agreement or in connection with the transactions contemplated hereby contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained therein not misleading.
(b) Remedies
for Breach of
Representations and Warranties of the Servicer. It is
understood and agreed that the representations and warranties set forth in
Sections 4.05(a) shall survive the engagement of the Servicer to perform
the
servicing responsibilities as of the Closing Date hereunder and the delivery
of
the Servicing Files to the Servicer, and shall inure to the benefit of the
Indenture Trustee. Upon discovery by either the Servicer or the
Indenture Trustee of a breach of any of the foregoing representations and
warranties which materially and adversely affects the ability of the Servicer
to
perform its duties and obligations under this Agreement or otherwise materially
and adversely affects the value of the Mortgage Loans, the Mortgaged Property
or
the priority of the security interest on such Mortgaged Property or the
interests of the Indenture Trustee, the party discovering such breach shall
give
prompt written notice to the other parties.
71
Within
60
days of the earlier of either discovery by or notice to the Servicer of any
breach of a representation or warranty set forth in Section 4.05(a) which
materially and adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise materially and
adversely affects the value of the Mortgage Loans, the Mortgaged Property
or the
priority of the security interest on such Mortgaged Property, the Servicer
shall
use its best efforts promptly to cure such breach in all material respects
and,
if such breach cannot be cured, the Servicer shall, at the Indenture Trustee’s
option, assign its rights and obligations under this Agreement (or respecting
the affected Mortgage Loans) to a successor servicer. Such assignment
shall be made in accordance with Sections 4.06(e) and 4.06(f).
In
addition, the Servicer shall indemnify all other parties to this Agreement
and
hold each of them harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the
Servicer’s representations and warranties contained in Section
4.05.
Any
cause
of action against the Servicer relating to or arising out of the breach of
any
representations and warranties made in Section 4.05(a) shall accrue upon
(i)
discovery of such breach by the Servicer or notice thereof by the Depositor
or
the Indenture Trustee to the Servicer, (ii) failure by the Servicer to cure
such
breach within the applicable cure period, and (iii) demand upon the Servicer
by
the Indenture Trustee for compliance with this Agreement.
(i) Additional
Indemnification
by the Servicer. The Servicer shall indemnify the Depositor,
the Indenture Trustee, the Owner Trustee and the Trust Administrator and
hold
each of them harmless against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses (collectively, the
“Liabilities”) that the indemnified party may sustain in any way related to (i)
the Servicer’s willful misfeasance, bad faith or gross negligence in the
performance of its duties under this Agreement, or (ii) the failure of the
Servicer to perform its duties and service the Mortgage Loans in accordance
with
the terms of this Agreement. The Servicer shall immediately notify
the Depositor, the Indenture Trustee, the Owner Trustee and the Trust
Administrator if a claim is made by a third party with respect to this Agreement
or the Mortgage Loans that may result in such Liabilities, and the Servicer
shall assume (with the prior written consent of the indemnified party) the
defense of any such claim and pay all expenses in connection therewith,
including counsel fees, promptly pay, discharge and satisfy any judgment
or
decree which may be entered against it or any indemnified party in respect
of
such claim and follow any written instructions received from such indemnified
party in connection with such claim. The Servicer shall be reimbursed
promptly from the Trust Fund for all amounts advanced by it pursuant to the
preceding sentence except when the claim is in any way related to the Servicer’s
indemnification pursuant to this Section 4.05(d), or the failure of the Servicer
to service and administer the Mortgage Loans in accordance with the terms
of
this Agreement.
Section
4.06. The
Servicer.
(a) Merger
or Consolidation of
the Servicer. The Servicer shall keep in full effect its
existence, rights and franchises as a corporation, and shall obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which such qualification is or shall be
72
necessary
to protect the validity and enforceability of this Agreement or any of the
Mortgage Loans and to perform its duties under this Agreement.
Any
Person into which the Servicer may be merged or consolidated, or any entity
resulting from any merger (including a sale of all or substantially all assets),
conversion or consolidation to which the Servicer shall be a party, or any
Person succeeding to the business of the Servicer, shall be the successor
of the
Servicer hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, provided,
however, that the
successor or
surviving Person shall be an institution (i) having a net worth of not less
than
$15,000,000, (ii) which is a Xxxxxx Xxx- and Xxxxxxx Mac approved servicer
in
good standing, and (iii) which is a member in good standing of
MERS.
(b) Limitation
on Liability of
the Servicer and Others. Neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer shall be under any
liability to the Depositor, the Issuing Entity, the Indenture Trustee or
the
Trust Administrator for any action taken or for refraining from the taking
of
any action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that
this provision shall not protect the Servicer or any such person against
any
breach of warranties or representations made herein, or failure to perform
its
obligations in compliance with any standard of care set forth in this Agreement,
or any liability which would otherwise be imposed by reason of any breach
of the
terms and conditions of this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith
on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Mortgage Loans in
accordance with this Agreement and which in its opinion may involve it in
any
expense or liability; provided, however, that
the Servicer may
undertake any such action which it may deem necessary or desirable in respect
of
this Agreement and the rights and duties of the parties hereto. In
such event, the Servicer shall be entitled to reimbursement from the Trust
Fund
for the reasonable legal expenses and costs of such action.
(c) Limitation
on Resignation
and Assignment by the Servicer. This Agreement has been
entered into with the Servicer in reliance upon the independent status of
the
Servicer, and the representations as to the adequacy of its servicing
facilities, plant, personnel, records and procedures, its integrity, reputation
and financial standing, and the continuance thereof. Therefore,
except as expressly provided in this Section 4.06(c), the eighth paragraph
of
Section 4.08(a) and Section 4.02(a), the Servicer shall neither assign its
rights under this Agreement or the servicing hereunder (not including the
use of
Subservicers or Subcontractors), in each case, the prior written consent
of the
Seller, the Indenture Trustee and the Trust Administrator, which consent,
in the
case of an assignment of rights or delegation of duties, shall be granted
or
withheld in the discretion of the Seller, the Indenture Trustee and the Trust
Administrator; provided, that
in each case,
there must be delivered to the Seller, the Indenture Trustee and the Trust
Administrator a letter from each Rating Agency to the effect that such transfer
of servicing or sale or disposition of assets will not result in a
qualification, withdrawal or downgrade of the then-current rating of any
of the
Notes.
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The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except by mutual consent of the Servicer and the Indenture Trustee, or upon
the
determination that its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the
Servicer. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered
to
the Seller, the Indenture Trustee and the Indenture Trustee which Opinion
of
Counsel shall be in form and substance reasonably acceptable to each of
them. No such resignation shall become effective until a successor
shall have assumed the Servicer’s responsibilities and obligations hereunder in
the manner provided in Section 4.08.
Notwithstanding
anything to the contrary which may be set forth above, the parties to this
Agreement hereby specifically (i) consent to the pledge and assignment by
the Servicer of all the Servicer’s right, title and interest in, to and under
this Agreement to the Servicing Rights Pledgee, for the benefit of certain
lenders, and (ii) provided that no Servicer Event of Default exists, agree
that upon delivery to the Trust Administrator by the Servicing Rights Pledgee
of
a letter signed by the Servicer whereunder the Servicer shall resign as Servicer
under this Agreement, the Trust Administrator shall appoint the Servicing
Rights
Pledgee or its designee as successor servicer, provided that at the time
of such
appointment, the Servicing Rights Pledgee or such designee has the
characteristics set forth in clauses (i), (ii) and (iii) of the second paragraph
of Section 4.06(a) and agrees to be subject to the terms of this
Agreement. The Servicing Rights Pledgee is hereby agreed and
acknowledged to be approved by the Seller, the Indenture Trustee and the
Trust
Administrator as a successor servicer without the need for further approval
or
the ability of any such party to refuse to grant such approval; provided that the
appointment of the Servicing Rights Pledgee as successor Servicer may be
conditioned on the receipt of a letter from each Rating Agency to the effect
that a transfer of servicing to the Servicing Rights Pledgee will not result
in
a qualification, withdrawal or downgrade of the then-current rating of any
of
the Notes. If, pursuant to any provision hereof, the duties of the
Servicer are transferred to a successor servicer, the entire amount of the
Servicing Fee and other compensation payable to the Servicer pursuant hereto
shall thereafter be payable to such successor servicer.
Without
in any way limiting the generality of this Section 4.06, in the event that
the
Servicer either shall assign this Agreement or the servicing responsibilities
hereunder, except to the extent permitted by and in accordance with this
Section
4.06 and Section 4.02(a), without the prior written consent of the Seller,
the
Indenture Trustee and the Trust Administrator, then such parties shall have
the
right to terminate this Agreement upon notice given as set forth in Section
11.07 of the Agreement, without any payment of any penalty or damages and
without any liability whatsoever to the Servicer or any third
party.
(d) Successor
Servicer. The provisions of Sections 4.06(a), (b) and (c)
shall apply to any successor to SunTrust Mortgage, Inc., as Servicer
hereunder.
Section
4.07. Termination
for
Cause.
Any
of
the following occurrences shall constitute an event of default (a “Servicer
Event of Default”) on the part of the Servicer:
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(1) any
failure by the Servicer to remit to the Trust Administrator any payment required
to be made under the terms of this Agreement which continues unremedied for
a
period of one Business Day after the date upon which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer, and the Swap Counterparty, by the Trust Administrator; or
(2) failure
by the Servicer, duly to observe or perform in any material respect any other
of
the covenants or agreements on the part of the Servicer, set forth in this
Agreement which continues unremedied for a period of 30 days after the date
on
which written notice of such failure, requiring the same to be remedied,
shall
have been given to the Servicer and the Swap Counterparty by the Trust
Administrator; or
(3) failure
by the Servicer to maintain its license to do business or service residential
mortgage loans in any jurisdiction where the Mortgaged Properties are located
except where the failure to so maintain such license does not have a material
adverse effect on the Servicer’s ability to service the Mortgage Loans;
or
(4) a
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, including bankruptcy, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation
of its
affairs, shall have been entered against the Servicer and such decree or
order
shall have remained in force undischarged or unstayed for a period of 60
days;
or
(5) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all of its property; or
(6) the
Servicer shall admit in writing its inability to pay its debts generally
as they
become due, file a petition to take advantage of any applicable insolvency,
bankruptcy or reorganization statute, make an assignment for the benefit
of its
creditors, voluntarily suspend payment of its obligations;
(7) the
Servicer ceases to meet the qualifications of a Xxxxxx Xxx or Xxxxxxx Mac
lender/servicer;
(8) the
Servicer attempts to assign the servicing of the Mortgage Loans or its right
to
servicing compensation hereunder or the Servicer attempts to assign this
Agreement or the servicing responsibilities hereunder or to delegate its
duties
hereunder ar any portion thereof in a manner not permitted under this
Agreement;
(9) if
any of
the Rating Agencies reduces or withdraws the rating of any of the Notes due
to a
reason attributable to the Servicer; or
(10) the
net
worth of the Servicer shall be less than $15,000,000.
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In
each
and every such case, so long as an Event of Default shall not have been
remedied, in addition to whatsoever rights the Indenture Trustee may have
at law
or equity to damages, including injunctive relief and specific performance,
the
Indenture Trustee, by notice in writing to the Servicer, and the Servicing
Rights Pledgee and the Swap Counterparty, may terminate all the
rights and obligations of the Servicer under this Agreement and in and to
the
servicing contract established hereby and the proceeds thereof.
Upon
receipt by the Servicer, of such written termination notice, all authority
and
power of the Servicer, under this Agreement, whether with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in a successor servicer
appointed by the Indenture Trustee, in accordance with and subject to Section
4.08(a). The parties acknowledge that notwithstanding the preceding
sentence, there may be a transition period, not to exceed 90 days, in order
to
effect the transfer of servicing to a successor servicer. The
Indenture Trustee shall be entitled to be reimbursed by the Servicer, as
applicable (or by the Trust Estate, if the Servicer is unable to fulfill
its
obligations hereunder) for all reasonable costs associated with the transfer
of
servicing, including, without limitation, any such costs or expenses associated
with the complete transfer of all servicing data and the completion, correction
or manipulation of such servicing data, as may be required by the Indenture
Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Indenture Trustee to service the Mortgage Loans properly
and effectively. Upon written request from the Indenture Trustee, the
Servicer shall prepare, execute and deliver to the successor servicer any
and
all documents and other instruments, place in such successor’s possession all
Servicing Files, and do or cause to be done all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, including
but not limited to the transfer and endorsement or assignment of the Mortgage
Loans and related documents, at the Servicer’s sole expense. The
Servicer shall cooperate with the Indenture Trustee and such successor in
effecting the termination of the Servicer’s responsibilities and rights
hereunder, including without limitation, the transfer to such successor for
administration by it of all cash amounts which shall at the time be credited
by
the Servicer to the Custodial Account or Escrow Account or thereafter received
with respect to the Mortgage Loans.
By
a
written notice, the Indenture Trustee with the consent of the other parties,
may
waive any default by the Servicer in the performance of its obligations
hereunder and its consequences. Upon any waiver of a past default,
such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly
so
waived.
Section
4.08. Successor
to Servicer,
Miscellaneous Provisions.
(a) Successor
to the
Servicer. Simultaneously with the termination of the
Servicer’s responsibilities and duties under this Agreement pursuant to Sections
4.05, 4.06, or 4.07, the Master Servicer shall (i) within 90 days of the
Servicer’s notice of such termination, succeed to and assume all of the
Servicer’s responsibilities, rights, duties and obligations under this
Agreement, or (ii) appoint a successor having the characteristics set forth
in
clauses (i) and (ii) of Section 4.06(d) and which shall succeed to all rights
and assume all of the responsibilities, duties and liabilities of the Servicer
under this Agreement simultaneously with the termination of the Servicer’s
responsibilities, duties and liabilities under this Agreement. Any
successor to the
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Servicer
shall be subject to the approval of the Master Servicer, the Indenture Trustee
and the Trust Administrator. Any approval of a successor servicer by
the Master Servicer, the Indenture Trustee and the Trust Administrator, shall,
if the successor servicer is not at that time a servicer of other Mortgage
Loans
for the Trust, be conditioned upon the receipt by the Master Servicer, the
Seller, the Indenture Trustee and the Trust Administrator of a letter from
each
Rating Agency to the effect that such transfer of servicing will not result
in a
qualification, withdrawal or downgrade of the then-current rating of any
of the
Notes. In connection with such appointment and assumption, the Master
Servicer may make such arrangements for the compensation of such successor
out
of payments on Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted the Servicer under
this
Agreement. In the event that the Servicer’s duties, responsibilities
and liabilities under this Agreement should be terminated pursuant to the
aforementioned sections, the Servicer shall discharge such duties and
responsibilities during the period from the date it acquires knowledge of
such
termination until the effective date thereof with the same degree of diligence
and prudence which it is obligated to exercise under this Agreement, and
shall
take no action whatsoever that might impair or prejudice the rights or financial
condition of its successor. The resignation or removal of the
Servicer pursuant to the aforementioned sections shall not become effective
until a successor shall be appointed pursuant to this Section 4.08(a) and
shall
in no event relieve the Servicer of the representations and warranties made
pursuant to Sections 4.05 and the remedies available to the Master Servicer,
the
Indenture Trustee and the Seller under Sections 4.08(c), 4.05(d) and 4.05(e),
it
being understood and agreed that the provisions of such Sections 4.08(c),
4.05(d) and 4.05(e) shall be applicable to the Servicer notwithstanding any
such
resignation or termination of the Servicer, or the termination of this
Agreement. Neither the Master Servicer, in its capacity as successor
servicer, nor any other successor servicer shall be responsible for the lack
of
information and/or documents that it cannot otherwise obtain through reasonable
efforts.
Within
a
reasonable period of time, but in no event longer than 30 days of the
appointment of a successor entity, the Servicer shall prepare, execute and
deliver to the successor entity any and all documents and other instruments,
place in such successor’s possession all Servicing Files, and do or cause to be
done all other acts or things necessary or appropriate to effect the purposes
of
such notice of termination, including but not limited to the transfer of
any
Mortgage Notes and the related documents. The Servicer shall
cooperate with the Indenture Trustee, the Master Servicer or the Seller,
as
applicable, and such successor in effecting the termination of the Servicer’s
responsibilities and rights hereunder and the transfer of servicing
responsibilities to the successor Servicer, including without limitation,
the
transfer to such successor for administration by it of all cash amounts which
shall at the time be credited by the Servicer to the Custodial Account or
Escrow
Account or thereafter received with respect to the Mortgage Loans.
Any
successor appointed as provided herein shall execute, acknowledge and deliver
to
the Indenture Trustee, the Servicer, the Master Servicer, the Trust
Administrator and the Seller an instrument (i) accepting such appointment,
wherein the successor shall make the representations and warranties set forth
in
Section 4.05(a) and provide for the same remedies set forth in such Section
herein and (ii) an assumption of the due and punctual performance and observance
of each covenant and condition to be performed and observed by the Servicer
under this Agreement, whereupon such successor shall become fully vested
with
all the rights, powers,
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duties,
responsibilities, obligations and liabilities of the Servicer, with like
effect
as if originally named as a party to this Agreement. Any termination
or resignation of the Servicer or termination of this Agreement pursuant
to
Sections 4.05, 4.06 and 4.07 shall not affect any claims that the Seller,
the
Master Servicer, the Indenture Trustee or the Trust Administrator may have
against the Servicer arising out of the Servicer’s actions or failure to act
prior to any such termination or resignation.
The
Servicer shall deliver promptly to the successor servicer the funds in the
Custodial Account and Escrow Account and all Mortgage Loan documents and
related
documents and statements held by it hereunder and the Servicer shall account
for
all funds and shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and definitively vest
in the
successor all such rights, powers, duties, responsibilities, obligations
and
liabilities of the Servicer.
Upon
a
successor’s acceptance of appointment as such, it shall notify the Indenture
Trustee, the Trust Administrator, the Seller and Master Servicer and the
Depositor of such appointment.
(b) Costs. The
Seller shall pay the legal fees and expenses of its attorneys. Costs
and expenses incurred in connection with the transfer of the servicing
responsibilities, including fees for delivering Servicing Files, shall be
paid
by (i) the terminated or resigning Servicer if such termination or resignation
is a result of an occurrence of a termination event under Sections 4.05(c)
or
4.07, and (ii) in all other cases by the Trust.
Section
4.09. Miscellaneous
Servicing
Provisions.
(a) Protection
of Confidential
Information. The Servicer shall keep confidential and shall
not divulge to any party, other than an affiliate of the Servicer, without
the
Seller’s prior written consent, any nonpublic information pertaining to the
Mortgage Loans or any borrower thereunder, except to the extent that it is
appropriate for the Servicer to do so in working with legal counsel,
subservicers, special servicers, auditors, taxing authorities or other
governmental agencies.
(b) No
Solicitation. For so long as the Servicer services the
Mortgage Loans, it shall not take any action or permit or cause any action
to be
taken by any of its agents and Affiliates, or by any independent contractors
or
independent mortgage brokerage companies on the Servicer’s behalf, to
personally, by telephone or mail, solicit the Mortgagor under any Mortgage
Loan
for the purpose of refinancing such Mortgage Loan; provided, that the Servicer
may solicit any Mortgagor for whom the Servicer has received a request for
verification of mortgage, a request for demand for payoff, a mortgagor initiated
written or verbal communication indicating a desire to prepay the related
Mortgage Loan, another mortgage company has pulled a credit report on the
mortgagor or the mortgagor initiates a title search; provided further, it
is
understood and agreed that promotions undertaken by the Servicer or any of
its
Affiliates which (i) concern optional insurance products or other additional
products or (ii) are directed to the general public at large, including,
without
limitation, mass mailings based on commercially acquired mailing lists,
newspaper, radio, telephone and television advertisements shall not constitute
solicitation under this Section, nor is the Servicer prohibited from responding
to unsolicited requests or
78
inquiries
made by a Mortgagor or an agent of a Mortgagor. Furthermore, the Servicer
shall
be permitted to include in its monthly statements to borrowers or otherwise,
statements regarding the availability of the Servicer’s counseling services with
respect to refinancing mortgage loans.
(c) Intention
of the
Parties. It is the intention of the Seller and Servicer that
the Seller is conveying, and the Servicer is receiving the servicing rights
relating to the Mortgage Loans. The parties hereby acknowledge that
the Trust remains the sole and absolute owner of the Mortgage Loans (other
than
the servicing rights) and all rights related thereto, subject to the lien
of the
Indenture.
ARTICLE
V
ADMINISTRATION
AND MASTER SERVICING OF MORTGAGE LOANS BY THE
MASTER
SERVICER AND THE TRUST ADMINISTRATOR
(a) For
and
on behalf of the Issuing Entity, the Swap Counterparty, the Indenture Trustee
and the Noteholders, the Master Servicer shall master service the Mortgage
Loans
from and after the Closing Date in accordance with the provisions of this
Article V. The Master Servicer hereby represents and warrants to the
Depositor, the Issuing Entity, the Swap Counterparty, the Indenture Trustee,
the
Trust Administrator, and the Servicer, as of the Closing Date,
that:
(i) it
is
validly existing and in good standing as
a [_________________] and as Master Servicer has
full power and authority to transact any and all business contemplated by
this
Agreement and to execute, deliver and comply with its obligations under the
terms of this Agreement, the execution, delivery and performance of which
have
been duly authorized by all necessary corporate action on the part of the
Master
Servicer;
(ii) the
execution and delivery of this Agreement by the Master Servicer and its
performance and compliance with the terms of this Agreement will not (A)
violate
the Master Servicer’s charter or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or (C) constitute
a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Master Servicer is a party or
by
which it is bound or to which any of its assets are subject, which violation,
default or breach would materially and adversely affect the Master Servicer’s
ability to perform its obligations under this Agreement;
(iii) this
Agreement constitutes, assuming due authorization, execution and delivery
hereof
by the other respective parties hereto, a legal, valid and binding obligation
of
the Master Servicer, enforceable against it in accordance with the terms
hereof,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights in general, and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
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(iv) the
Master Servicer is not in default with respect to any order or decree of
any
court or any order or regulation of any federal, state, municipal or
governmental agency to the extent that any such default would materially
and
adversely affect its performance hereunder;
(v) the
Master Servicer is not a party to or bound by any agreement or instrument
or
subject to any charter provision, bylaw or any other corporate restriction
or
any judgment, order, writ, injunction, decree, law or regulation that may
materially and adversely affect its ability as Master Servicer to perform
its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Master
Servicer of its obligations under this Agreement;
(vi) no
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened against the Master Servicer which would prohibit its entering
into
this Agreement or performing its obligations under this Agreement;
(vii) the
Master Servicer, or an affiliate thereof the primary business of which is
the
servicing of conventional residential mortgage loans, is a Xxxxxx Xxx- or
Xxxxxxx Mac-approved seller/servicer;
(viii) no
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of or compliance by the Master Servicer with this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
consents, approvals, authorizations and orders (if any) as have been
obtained;
(ix) the
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer;
(x) the
Master Servicer has obtained an Errors and Omissions Insurance Policy and
a
Fidelity Bond in accordance with Section 5.02 each of which is in full force
and
effect, and each of which provides at least such coverage as is required
hereunder; and
(xi) the
information about the Master Servicer under the heading “The Master Servicer” in
the Offering Documents relating to the Master Servicer does not include an
untrue statement of a material fact and does not omit to state a material
fact,
with respect to the statements made, necessary in order to make the statements
in light of the circumstances under which they were made not
misleading.
(b) It
is
understood and agreed that the representations and warranties set forth in
this
Section 5.01 shall survive the execution and delivery of this
Agreement. The Master Servicer shall indemnify the Depositor, the
Issuing Entity, the Indenture Trustee, the Owner Trustee, the Trust
Administrator, and the Servicer and hold them harmless against any loss,
damages, penalties, fines, forfeitures, legal fees and related costs, judgments,
and other costs and expenses resulting from any claim, demand, defense or
assertion based on or grounded upon, or resulting from, a breach of the Master
Servicer’s representations and warranties contained in this Section
5.01. It is understood and agreed that the enforcement of the
obligation of the Master Servicer set forth in this Section to indemnify
the
foregoing parties as provided in this Section constitutes the sole remedy
(other
than as set forth in Section 8.01) of such parties respecting a breach of
the
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foregoing
representations and warranties. Such indemnification shall survive
any termination of the Master Servicer as Master Servicer hereunder, and
any
termination of this Agreement.
Any
cause
of action against the Master Servicer relating to or arising out of the breach
of any representations and warranties made in this Section shall accrue upon
discovery of such breach by the Depositor, the Issuing Entity, the Indenture
Trustee, the Trust Administrator, or the Servicer or notice thereof by any
one
of such parties to the other parties. Notwithstanding anything in
this Agreement to the contrary, the Master Servicer shall not be liable for
special, indirect or consequential losses or damages of any kind whatsoever
(including, but not limited to, lost profits).
Section
5.02. Master
Servicer Fidelity
Bond and Master Servicer Errors and Omissions Insurance
Policy.
(a) The
Master Servicer, at its expense, shall maintain in effect a Master Servicer
Fidelity Bond and a Master Servicer 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 Master Servicer Errors and Omissions Insurance Policy
and the Master Servicer Fidelity Bond shall be in such form and amount that
would be consistent with coverage customarily maintained by master servicers
of
mortgage loans similar to the Mortgage Loans and shall by its terms not be
cancelable without thirty days’ prior written notice to the Indenture
Trustee. The Master Servicer shall provide the Depositor and the
Indenture Trustee, upon request, with a copy of such policy and fidelity
bond. The Master Servicer shall (i) require the Servicer to maintain
an Errors and Omissions Insurance Policy and a Servicer Fidelity Bond in
accordance with the provisions of Section 4.02(m) of this Agreement, (ii)
cause
the Servicer to provide to the Master Servicer certificates evidencing that
such
policy and bond is in effect and to furnish to the Master Servicer any notice
of
cancellation, non-renewal or modification of the policy or bond received
by it,
as and to the extent provided in Section 4.02(m) of the Agreement, and (iii)
furnish copies of such policies and of the certificates and notices referred
to
in clause (ii) to the Indenture Trustee upon request.
(b) The
Master Servicer shall promptly report to the Indenture Trustee and the Trust
Administrator any material changes that may occur in the Master Servicer’s
Fidelity Bond or the Master Servicer Errors and Omissions Insurance Policy
and
shall furnish either such party, on request, certificates evidencing that
such
bond and insurance policy are in full force and effect. The Master
Servicer shall promptly report to the Indenture Trustee and the Trust
Administrator all cases of embezzlement or fraud, if such events involve
funds
relating to the Mortgage Loans. The total losses, regardless of
whether claims are filed with the applicable insurer or surety, shall be
disclosed in such reports together with the amount of such losses covered
by
insurance. If a bond or insurance claim report is filed with any of
such bonding companies or insurers, the Master Servicer shall promptly furnish
a
copy of such report to the Indenture Trustee and the Trust
Administrator. Any amounts relating to the Mortgage Loans collected
by the Master Servicer under any such bond or policy shall be promptly remitted
by the Master Servicer to the Indenture Trustee for deposit into the Collection
Account. Any amounts relating to the Mortgage Loans collected by the
Servicer under any such bond or policy shall be remitted to the Master
Servicer.
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Section
5.03. Master
Servicer’s Financial
Statements and Related Information. For each year this
Agreement is in effect, the Master Servicer shall deliver to the Trust
Administrator, the Indenture Trustee, each Rating Agency and the Depositor
a
copy of its annual unaudited financial statements on or prior to May 31 of
each
year, beginning May 31, 200[ ]. Such financial statements shall
include a balance sheet, income statement, statement of retained earnings,
statement of additional paid-in capital, statement of changes in financial
position and all related notes and schedules and shall be in comparative
form,
certified by a nationally recognized firm of Independent Accountants to the
effect that such statements were examined and prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
that
of the preceding year.
Section
5.04. Power
to Act;
Procedures.
(a) The
Master Servicer shall master service the Mortgage Loans, provided that the
Master Servicer shall not take, or knowingly permit the Servicer to take,
any
action that is inconsistent with or prejudices the interests of the Issuing
Entity, the Indenture Trustee or the Noteholders in any Mortgage Loan or
the
rights and interests of the Depositor, the Issuing Entity, the Indenture
Trustee
and the Noteholders under this Agreement and the Indenture. The
Master Servicer shall represent and protect the interests of the Issuing
Entity,
the Indenture Trustee and the Noteholders in the same manner as it protects
its
own interests in mortgage loans in its own portfolio in any claim, proceeding
or
litigation regarding a Mortgage Loan. Without limiting the generality
of the foregoing, the Master Servicer in its own name, and the Servicer,
to the
extent such authority is delegated to such Servicer under this Agreement,
is
hereby authorized and empowered by the Indenture Trustee when the Master
Servicer or such Servicer, as the case may be, believes it appropriate in
its
best judgment and in accordance with Servicing Standards, to execute and
deliver, on behalf of itself and the Noteholders, the Trust Administrator,
the
Indenture Trustee or any of them, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Mortgage Loans and with respect
to
the Mortgaged Properties. The Indenture Trustee (or the Trust
Administrator acting for the Indenture Trustee) shall furnish the Master
Servicer, upon request, 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 this Agreement, and the Indenture Trustee shall execute and
deliver such other documents as the Master Servicer may request, necessary
or
appropriate to enable the Master Servicer to master service the Mortgage
Loans
and carry out its duties hereunder, and to allow the Servicer to service
the
Mortgage Loans in each case in accordance with Servicing Standards (and the
Indenture Trustee or the Trust Administrator shall have no liability for
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, then upon request
of
the Indenture Trustee, the Master Servicer shall join with the Indenture
Trustee
in the appointment of a co-trustee pursuant to Section 6.10 of the
Indenture. In no event shall the Master Servicer, without the
Indenture Trustee’s written consent: (i) initiate any action, suit or
proceeding solely under the Indenture Trustee’s name
82
without
indicating the Master Servicer’s representative capacity or (ii) take any action
with the intent to cause, and which actually does cause, the Indenture Trustee
to be registered to do business in any state. The Master Servicer
shall indemnify the Indenture Trustee for any and all costs, liabilities
and
expenses incurred by the Indenture Trustee in connection with the negligent
or
willful misuse of such powers of attorney by the Master Servicer. 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 Indenture Trustee, be deemed to be the agent
of
the Indenture Trustee.
(b) In
master
servicing and administering the Mortgage Loans, the Master Servicer shall
employ
procedures and exercise the same care that it customarily employs and exercises
in master servicing and administering loans for its own account, giving due
consideration to Servicing Standards where such practices do not conflict
with
this Agreement. Consistent with the foregoing, the Master Servicer
may, and may permit the Servicer to, in its discretion (i) waive any late
payment charge and (ii) extend the due dates for payments due on a Mortgage
Note
for a period not greater than 120 days; provided, however, that the
maturity of any Mortgage Loan shall not be extended past the date on which
the
final payment is due on the latest maturing Mortgage Loan as of the Cut-off
Date. In the event of any extension described in clause (ii) above,
the Master Servicer shall make or cause the Servicer to make Advances on
the
related Mortgage Loan in accordance with the provisions of Section 4.03 on
the
basis of the amortization schedule of such Mortgage Loan without modification
thereof by reason of such extension.
Section
5.05. Enforcement
of Servicer’s
and Master Servicer’s Obligations.
(a) The
Master Servicer shall not be required to (i) take any action with respect
to the
servicing of any Mortgage Loan that the Servicer is not required to take
under
this Agreement and (ii) cause the Servicer to take any action or refrain
from
taking any action if this Agreement does not require the Servicer to take
such
action or refrain from taking such action.
(b) The
Master Servicer, for the benefit of the Issuing Entity, the Swap Counterparty,
the Indenture Trustee and the Noteholders, shall enforce the obligations
of the
Servicer hereunder, and shall, in the event that the Servicer fails to perform
its obligations in accordance herewith, terminate the rights and obligations
of
the Servicer hereunder and either act as servicer of the related Mortgage
Loans
or cause other parties hereto to either assume the obligations of the
Servicer-under this Agreement (or agree to execute and deliver a successor
servicing or sub-servicing agreement with a successor servicer). Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of servicing or sub-servicing rights and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer, in its good faith business judgment,
would require were it the owner of the related Mortgage Loans. The
Master Servicer shall pay the costs of such enforcement at its own expense,
and
shall be reimbursed therefor initially (i) from a general recovery resulting
from such enforcement only to the extent, if any, that such recovery exceeds
all
amounts due in respect of the related Mortgage Loans, (ii) from a specific
recovery of costs, expenses or attorneys’ fees against the party against whom
such enforcement is directed, and then, (iii) to the extent that such amounts
are insufficient to reimburse the Master Servicer for the costs of such
enforcement, from the Collection Account.
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Section
5.06.
[Reserved].
Section
5.07. Collection
Account.
(a) On
the
Closing Date, the Trust Administrator shall open and shall thereafter maintain
a
segregated account held in trust in the name of the Securities Intermediary
(the
“Collection Account”), entitled “Collection Account, [____________],
as Indenture Trustee, in trust for Holders of the SunTrust
[ ] Trust, Series 200[ ]-[__],
Mortgage-Backed Notes.” The Collection Account shall relate solely to
the Notes issued by the Issuing Entity, and funds deposited in the Collection
Account shall not be commingled with any other monies.
(b) The
Collection Account shall be an Eligible Account. If an existing
Collection Account ceases to be an Eligible Account, the Trust Administrator
shall establish a new Collection Account that is an Eligible Account within
10
days and transfer all funds and investment property on deposit in such existing
Collection Account into such new Collection Account.
(c)
The
Trust Administrator shall give to the Master Servicer and the Indenture Trustee
prior written notice of the name and address of the depository institution
at
which the Collection Account is maintained and the account number of such
Collection Account. The Trust Administrator shall take such actions as are
necessary to cause the depository institution holding the Collection Account
to
hold such account in the name of the Indenture Trustee. On each Payment Date,
the entire amount on deposit in the Collection Account relating to the Mortgage
Loans (subject to permitted withdrawals set forth in Section 5.08), other
than
amounts not included in Interest Funds or Principal Funds to be paid to
Noteholders for such Payment Date, shall be applied to make the requested
payment of principal and/or interest on each Class of Notes.
(d) The
Master Servicer shall deposit or cause to be deposited into the Collection
Account, no later than the Business Day following the Closing Date, any amounts
received with respect to the Mortgage Loans representing Scheduled Payments
on
the Mortgage Loans due after the Cut-off Date and unscheduled payments received
on or after the Cut-off Date and on or before the Closing
Date. Thereafter, the Master Servicer shall deposit or cause to be
deposited in the Collection Account on the earlier of the applicable Payment
Date and one Business Day following receipt thereof, the following amounts
received or payments made by the Master Servicer (other than in respect of
principal of and interest on the Mortgage Loans due on or before the Cut-off
Date):
(i) all
remittances from the Custodial Account to the Master Servicer pursuant to
Section 4.03;
(ii) all
Advances made by the Servicer or the Master Servicer pursuant to Section
6.05
hereof and any payment in respect of Prepayment Interest Shortfalls paid
by the
Master Servicer pursuant to Section 5.21 hereof;
(iii) the
Purchase Price of any Mortgage Loan repurchased by the Depositor or the Seller
during the related Prepayment Period or any other Person and any Substitution
Amount related to any Qualifying Substitute Mortgage Loan; and
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(iv) any
Net
Swap Receipts or any swap breakage costs (as reported to the Trust Administrator
by the Swap Counterparty) received by the Trust Administrator.
(e)
Funds in
the Collection Account may be invested by the Trust Administrator in Eligible
Investments selected by and at the written direction of the Trust Administrator,
which shall mature not later than one Business Day prior to the next Payment
Date (or on the Payment Date with respect to any Eligible Investment of the
Trust Administrator or any other fund managed or advised by it or any Affiliate)
and any such Eligible Investment shall not be sold or disposed of prior to
its
maturity. All such Eligible Investments shall be made in the name of the
Master
Servicer in trust for the benefit of the Indenture Trustee and the Noteholders
and the Swap Counterparty. All income and gain realized from any Eligible
Investment shall be for the benefit of the Master Servicer and shall be subject
to its withdrawal or order from time to time, subject to Section 5.08 and
shall
not be part of the Trust Estate. The amount of any losses incurred in respect
of
any such investments shall be deposited in such Collection Account by the
Master
Servicer out of its own funds, without any right of reimbursement therefor,
immediately as realized. The foregoing requirements for deposit in the
Collection Account are exclusive, it being understood and agreed that, without
limiting the generality of the foregoing, payments of interest on funds in
the
Collection Account and payments in the nature of late payment charges,
assumption fees and other incidental fees and charges relating to the Mortgage
Loans need not be deposited by the Master Servicer in the Collection Account
and
may be retained by the Master Servicer or the Servicer, as applicable, as
additional servicing compensation. If the Master Servicer deposits in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from such Collection Account.
Section
5.08. Application
of Funds in the
Collection Account. The Trust Administrator may, from time to
time, make, or cause to be made, withdrawals from the Collection Account
for the
following purposes:
(i)
to
reimburse the Master Servicer or the Servicer, as applicable, for any previously
unreimbursed Advances or Servicing Advances made by any such party, such
right
to reimbursement pursuant to this subclause (i) being limited to amounts
received on or in respect of a particular Mortgage Loan (including, for this
purpose, Liquidation Proceeds and amounts representing Insurance Proceeds
with
respect to the property subject to the related Mortgage) which represent
late
recoveries (net of the applicable Servicing Administration Fee) of payments
of
principal or interest respecting which any such Advance was made, it being
understood, in the case of any such reimbursement, that the Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Noteholders;
(ii)
to
reimburse the Master Servicer or the Servicer following a final liquidation
of a
Mortgage Loan for any previously unreimbursed Advances made by any such party
(A) that such party determines in good faith will not be recoverable from
amounts representing late recoveries of payments of principal or interest
respecting the particular Mortgage Loan as to which such Advance was made
or
from Liquidation Proceeds or Insurance Proceeds with respect to such Mortgage
Loan and/or (B) to the extent that such unreimbursed Advances exceed the
related
Liquidation Proceeds or Insurance Proceeds, it being understood, in the case
of
each such reimbursement, that the Master Servicer’s or Servicer’s right thereto
shall be prior to the rights of the Noteholders;
85
(iii) to
reimburse the Master Servicer or the Servicer from Liquidation Proceeds for
Liquidation Expenses and for amounts expended by it pursuant to Section 4.02(o)
in good faith in connection with the restoration of damaged property and,
to the
extent that Liquidation Proceeds after such reimbursement exceed the unpaid
principal balance of the related Mortgage Loan, together with accrued and
unpaid
interest thereon at the applicable Mortgage Rate less the applicable Servicing
Administration Fee Rate and Master Servicing Fee Rate for such Mortgage Loan
to
the Due Date next succeeding the date of its receipt of such Liquidation
Proceeds, to pay to the Master Servicer or the Servicer out of such excess
the
amount of any unpaid assumption fees, late payment charges or other Mortgagor
charges on the related Mortgage Loan and to retain any excess remaining
thereafter as additional servicing compensation, it being understood, in
the
case of any such reimbursement or payment, that such Master Servicer’s or
Servicer’s right thereto shall be prior to the rights of the
Noteholders;
(iv) to
pay to
the Depositor or the Seller or any other Person, as applicable, with respect
to
each Mortgage Loan or REO Property acquired in respect thereof that has been
purchased pursuant to this Agreement, all amounts received thereon and not
paid
on the date on which the related repurchase was effected, and to pay to the
applicable party any Advances and Servicing Advances to the extent specified
in
the definition of Purchase Price;
(v) to
the
extent not paid by the Servicer, to pay any Insurance Premium with respect
to a
Mortgage Loan;
(vi) to
pay to
the Master Servicer income earned on the investment of funds on deposit in
the
Collection Account;
(vii) on
each
Payment Date, to make payment to the Noteholders in the amounts and in the
manner provided for in Section 6.02 for the related Payment Date (to the
extent
collected by the Master Servicer or the Servicer);
(viii) on
each
Payment Date, to the extent not previously collected and retained by
the Servicer, to make payment to the Servicer, all Prepayment Premiums received
during the immediately preceding Prepayment Period;
(ix) to
make
payment to itself, the Master Servicer, the Servicer, the Indenture Trustee,
the
Custodian, the Owner Trustee and others pursuant to any provision of this
Agreement, the Trust Agreement, the Indenture or the Custodial
Agreement;
(x) to
withdraw funds deposited in error in the Collection Account;
(xi) to
clear
and terminate the Collection Account pursuant to Article IX;
(xii) to
reimburse a successor master servicer (solely in its capacity as successor
master servicer), for any fee or advance occasioned by a termination of the
Master Servicer, and the assumption of such duties by the Indenture Trustee
or a
successor master servicer appointed by the Indenture Trustee pursuant to
Section
8.01, in each case to the extent not reimbursed by the terminated Master
Servicer, it being understood, in the case of any such reimbursement or payment,
that the right of the Master Servicer or the Indenture Trustee thereto shall
be
prior to the rights of the Noteholders;
86
(xiii) to
pay
the Swap Counterparty any Net Swap Payments and any swap termination payments
(as reported to the Trust Administrator by the Swap Counterparty) two Business
Days prior to each applicable Payment Date; and
(xiv) to
make
payment to the Owner Trustee, the Owner Trustee Fee for such Payment Date,
if
any.
In
connection with withdrawals pursuant to subclauses (i), (ii), (iii) and (iv)
above, the Master Servicer’s or the Servicer’s or such other Person’s
entitlement thereto is limited to collections or other recoveries on the
related
Mortgage Loan. The Trust Administrator shall therefore keep and
maintain a separate accounting for each Mortgage Loan for the purpose of
justifying any withdrawal from the Collection Account it maintains pursuant
to
such subclauses.
Section
5.09. Reports
to Indenture Trustee
and Noteholders.
(a)
On each
Payment Date, the Trust Administrator shall make available to the Indenture
Trustee and each Noteholder and the Swap Counterparty, a report setting forth
the following information (on the basis of Mortgage Loan level information
obtained from the Servicer and information provided by the Swap
Counterparty):
(i) the
aggregate amount of the payment to be made on such Payment Date to the Holders
of each Class of Notes, to the extent applicable, allocable to principal
on the
Mortgage Loans, including Liquidation Proceeds and Insurance Proceeds, stating
separately the amount attributable to scheduled principal payments and
unscheduled payments in the nature of principal;
(ii) the
aggregate amount of the payment to be made on such Payment Date to the Holders
of each Class of Notes allocable to interest and the calculation
thereof;
(iii) the
amount, if any, of any payment to the Holder of the Ownership
Certificate;
(iv) (A)
the
aggregate amount of any Advances required to be made by or on behalf of the
Servicer (or the Master Servicer) with respect to such Payment Date, (B)
the
aggregate amount of such Advances actually made, and (C) the amount, if any,
by
which (A) above exceeds (B) above;
(v) the
total
number of Mortgage Loans, the aggregate Stated Principal Balance of all the
Mortgage Loans as of the close of business on the last day of the related
Due
Period, after giving effect to payments allocated to principal reported under
clause (i) above;
(vi) the
Class
Principal Amount of each Class of Notes, to the extent applicable, as of
such
Payment Date after giving effect to payments allocated to principal reported
under clause (i) above;
(vii) the
amount of all Prepayment Premiums paid to the holder of the Ownership
Certificate.
87
(viii) the
amount of any Realized Losses incurred with respect to the Mortgage Loans
(x) in
the applicable Prepayment Period and (y) in the aggregate since the Cut-off
Date;
(ix) the
amount of the Owner Trustee Fee, Master Servicing Fee and Servicing
Administration Fee paid during the Due Period to which such payment
relates;
(x) the
number and aggregate Stated Principal Balance of Mortgage Loans, as reported
to
the Trust Administrator by the Servicer, (a) remaining outstanding, (b)
delinquent 30 to 59 days on a contractual basis, (c) delinquent 60 to 89
days on
a contractual basis, (d) delinquent 90 or more days on a contractual basis,
(e)
as to which foreclosure proceedings have been commenced as of the close of
business on the last Business Day of the calendar month immediately preceding
the month in which such Payment Date occurs, (f) in bankruptcy and (g) that
are
REO Properties;
(xi) the
number and aggregate Stated Principal Balance as of the related Determination
Date of any Mortgage Loans with respect to which the related Mortgaged Property
became an REO Property as of the close of business on the last Business Day
of
the calendar month immediately preceding the month in which such Payment
Date
occurs;
(xii) with
respect to substitution of Mortgage Loans in the preceding calendar month,
the
Stated Principal Balance of each Deleted Mortgage Loan and of each Qualifying
Substitute Mortgage Loan;
(xiii) whether
a
Trigger Event has occurred;
(xiv) the
Interest Rate applicable to such Payment Date with respect to each Class
of
Notes;
(xv) the
Interest Funds and the Principal Funds applicable to such Payment
Date;
(xvi) if
applicable, the amount of any shortfall (i.e., the difference between the
aggregate amounts of principal and interest which Noteholders would have
received if there were sufficient available amounts in the Collection Account
and the amounts actually paid);
(xvii) the
amount of any Overcollateralization Deficiency after giving effect to the
payments made on such Payment Date;
(xviii) LIBOR
with respect to such Payment Date;
(xix) the
Available Funds Shortfall of each Class of Notes, if any; and
(xx) to
the
extent such information is provided to the Master Servicer by the Servicer,
the
number of Mortgage Loans with respect to which (a) a reduction in the Mortgage
Rate has occurred or (b) the related Mortgagor’s obligation to repay interest on
a monthly basis has been suspended or reduced pursuant to the Civil Relief
Act
or the California Military and Veterans Code, as amended; and the amount
of
interest not required to be paid with respect to
88
any
such
Mortgage Loans during the related Due Period as a result of such reductions,
in
the aggregate and with respect to the Group 1 Mortgage Loans and the Group
2
Mortgage Loans.
In
the
case of information furnished pursuant to subclauses (i), (ii) and (vi) above,
the amounts shall (except in the case of the report delivered to the holder
of
the Ownership Certificate) be expressed as a dollar amount per $1,000 of
original principal amount of Notes.
The
Trust
Administrator will make such report and additional loan level information
(and,
at its option, any additional files containing the same information in an
alternative format) available each month to the Rating Agencies and Noteholders
via the Trust Administrator’s website. The Trust Administrator’s
website can be accessed at [____________]. Assistance in
using the website can be obtained by calling the Trust Administrator’s customer
service desk at [____________]. Such parties that are
unable to use the website are entitled to have a paper copy mailed to them
via
first class mail by notifying the Trust Administrator
at [_________________________] and indicating such. The
Trust Administrator shall have the right to change the way such statements
are
distributed in order to make such distribution more convenient and/or more
accessible to the above parties and the Trust Administrator shall provide
timely
and adequate notification to all above parties regarding any such
changes.
The
foregoing information and reports shall be prepared and determined by the
Trust
Administrator based solely on Mortgage Loan data provided to the Trust
Administrator by the Master Servicer (in a format agreed to by the Trust
Administrator and the Master Servicer) no later than 12:00 p.m.(noon) Eastern
Standard Time four Business Days prior to the Payment Date. In
preparing or furnishing the foregoing information, the Trust Administrator
and
the Master Servicer shall be entitled to rely conclusively on the accuracy
of
the information or data regarding the Mortgage Loans and the related REO
Property that has been provided to the Master Servicer by the Servicer, and
neither the Trust Administrator nor the Master Servicer shall be obligated
to
verify, recompute, reconcile or recalculate any such information or
data. The Trust Administrator and the Master Servicer shall be
entitled to conclusively rely on the Mortgage Loan data provided to the Master
Servicer and shall have no liability for any errors in such Mortgage Loan
data.
(b) Upon
the
reasonable advance written request of any Noteholder that is a savings and
loan,
bank or insurance company, which request, if received by the Indenture Trustee
shall be forwarded promptly to the Trust Administrator, the Trust Administrator
shall provide, or cause to be provided (or, to the extent that such information
or documentation is not required to be provided by the Servicer, shall use
reasonable efforts to obtain such information and documentation from the
Servicer, and provide), to such Noteholder such reports and access to
information and documentation regarding the Mortgage Loans as such Noteholder
may reasonably deem necessary to comply with applicable regulations of the
Office of Thrift Supervision or its successor or other regulatory authorities
with respect to an investment in the Notes; provided, however, that the
Trust Administrator shall be entitled to be reimbursed by such Noteholder
for
actual expenses incurred in providing such reports and access.
(c)
Within
90 days, or such shorter period as may be required by statute or regulation,
after the end of each calendar year, the Trust Administrator shall have prepared
and shall make available to each Person who at any time during the calendar
year
was a Noteholder of record,
89
and
make
available to Security Owners (identified as such by the Clearing Agency)
in
accordance with applicable regulations, a report summarizing the items provided
to the Noteholders pursuant to Section 5.09(a) on an annual basis as may
be
required to enable such Holders to prepare their federal income tax returns;
provided, however, that
this Section 5.09(c) shall not be applicable where relevant reports or summaries
are required elsewhere in this Agreement. Such information shall
include the amount of original issue discount accrued on each Class of Notes
and
information regarding the expenses of the Issuing Entity. The Trust
Administrator shall be deemed to have satisfied such requirement if it forwards
such information in any other format permitted by the Code. The
Master Servicer shall provide the Trust Administrator with such information
as
is necessary for the Indenture Trustee to prepare such reports.
(d) The
Trust
Administrator shall furnish any other information that is required by the
Code
and regulations thereunder to be made available to Noteholders. The
Master Servicer shall provide the Trust Administrator with such information
as
is necessary for the Trust Administrator to prepare such reports (and the
Trust
Administrator may rely solely upon such information).
Section
5.10. Termination
of Servicer;
Successor Servicers.
(a) The
Master Servicer shall be entitled to terminate the rights and obligations
of the
Servicer upon the occurrence of a Servicer Event of Default as set forth
in
Section 4.07; provided,
however, that in the event of termination of the Servicer by the Master
Servicer, the Master Servicer shall provide for the servicing of the Mortgage
Loans by a successor servicer as provided in Section 4.08.
The
parties acknowledge that notwithstanding the preceding sentence, there may
be a
transition period, not to exceed 90 days, in order to effect the transfer
of
servicing to a successor servicer. The Master Servicer shall be
entitled to be reimbursed by the Servicer (or by the Trust Estate, if the
Servicer is unable to fulfill its obligations hereunder) for all costs
associated with the transfer of servicing, including without limitation,
any
costs or expenses associated with the complete transfer of all servicing
data
and the completion, correction or manipulation of such servicing data, as
may be
required by the Master Servicer to correct any errors or insufficiencies
in the
servicing data or otherwise to enable the Master Servicer to service the
Mortgage Loans properly and effectively.
(b) If
the
Master Servicer acts as a successor Servicer, it shall not assume liability
for
the representations and warranties of the Servicer that it
replaces. The Master Servicer shall use reasonable efforts to have
the successor Servicer assume liability for the representations and warranties
made by the terminated Servicer and in the event of any such assumption by
the
successor servicer, the Master Servicer may, in the exercise of its business
judgment, release the terminated Servicer from liability for such
representations and warranties.
(c) If
the
Master Servicer acts as a successor Servicer, it will have no obligation
to make
an Advance if it determines in its reasonable judgment that such Advance
would
constitute a Nonrecoverable Advance.
90
Section
5.11. Master
Servicer Liable for
Enforcement. The Master Servicer shall use commercially
reasonable efforts to ensure that the Mortgage Loans are serviced in accordance
with the provisions of this Agreement and shall use commercially reasonable
efforts to enforce the provisions of Article IV for the benefit of the
Noteholders and the Swap Counterparty. The Master Servicer shall be
entitled to enter into any agreement with any Servicer for indemnification
of
the Master Servicer and nothing contained in this Agreement shall be deemed
to
limit or modify such indemnification. Except as expressly set forth
herein, the Master Servicer shall have no liability for the acts or omissions
of
the Servicer in the performance by such Servicer of its obligations under
Article IV.
Section
5.12. Assumption
of Master
Servicing by Indenture Trustee.
(a) In
the
event the Master Servicer shall for any reason no longer be the Master Servicer
(including by reason of any Master Servicer Event of Default under Section
8.01
of this Agreement), the Indenture Trustee shall thereupon assume all of the
rights and obligations of such Master Servicer hereunder. The
Indenture Trustee, its designee or any successor master servicer appointed
by
the Indenture Trustee shall be deemed to have assumed all of the Master
Servicer’s interest herein, except that the Master Servicer shall not thereby be
relieved of any liability or obligations of the Master Servicer accruing
prior
to its replacement as Master Servicer, and shall be liable to the Indenture
Trustee, and hereby agrees to indemnify and hold harmless the Indenture Trustee
from and against all costs, damages, expenses and liabilities (including
reasonable attorneys’ fees) incurred by the Indenture Trustee as a result of
such liability or obligations of the Master Servicer and in connection with
the
Indenture Trustee’s assumption (but not its performance, except to the extent
that costs or liability of the Indenture Trustee are created or increased
as a
result of negligent or wrongful acts or omissions of the Master Servicer
prior
to its replacement as Master Servicer) of the Master Servicer’s obligations,
duties or responsibilities thereunder.
(b) The
Master Servicer that has been terminated shall, upon request of the Indenture
Trustee but at the expense of such Master Servicer, deliver to the assuming
party all documents and records relating to the Mortgage Loans and an accounting
of amounts collected and held by it and otherwise use its best efforts to
effect
the orderly and efficient transfer of master servicing to the assuming
party.
Section
5.13.
[Reserved].
Section
5.14. Release
of Mortgage
Files.
(a) Upon
(i)
becoming aware of the payment in full of any Mortgage Loan or (ii) the receipt
by the Master Servicer of a notification that payment in full has been or
will
be escrowed in a manner customary for such purposes, the Master Servicer
will,
or will cause the Servicer to, promptly notify the Indenture Trustee (or
the
Custodian) by a certification (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 the Trust
Administrator pursuant to Section 5.07 have been or will be so deposited)
of a
Servicing Officer and shall request (on the form attached to the Custodial
Agreement) the Indenture Trustee or the Custodian, to deliver to the Servicer
the related Mortgage File. Upon receipt of such
91
certification
and request, the Indenture Trustee or the Custodian (with the consent, and
at
the direction of the Indenture Trustee), shall promptly 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 Master Servicer is authorized, and 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, the Indenture Trustee shall execute such documents as shall be prepared
and furnished to the Indenture Trustee by the Master Servicer, or by the
Servicer, as applicable, (in form reasonably acceptable to the Indenture
Trustee) and as are necessary to the prosecution of any such
proceedings. The Indenture Trustee or the Custodian, shall, upon
request of the Master Servicer or of the Servicer, as applicable, and delivery
to the Indenture Trustee or the Custodian, of a trust receipt signed by a
Servicing Officer substantially in the form attached to the Custodial Agreement,
release the related Mortgage File held in its possession or control to the
Master Servicer (or the Servicer, as applicable). Such trust receipt
shall obligate the Master Servicer or the Servicer, as applicable, to return
the
Mortgage File to the Indenture Trustee or the Custodian, as applicable, when
the
need therefor by the Master Servicer or the Servicer, as applicable, 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 trust receipt shall be released by the Indenture Trustee or the Custodian,
as applicable, to the Master Servicer or the Servicer as
applicable.
Section
5.15. Documents,
Records and Funds
in Possession of Master Servicer To Be Held for Indenture
Trustee.
(a) The
Master Servicer shall transmit, or cause the Servicer to 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 to be delivered to the Indenture Trustee or the
Custodian. 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 the Servicer as Liquidation Proceeds or Insurance Proceeds
in
respect of any Mortgage Loan shall be held for the benefit of the Indenture
Trustee and the Noteholders and the Swap Counterparty subject to the Master
Servicer’s right to retain or withdraw amounts provided in this Agreement and to
the right of the Servicer to retain its Servicing Administration Fee and
other
amounts as provided herein. The Master Servicer shall, and shall
cause the Servicer to, provide access to information and documentation regarding
the Mortgage Loans to the Indenture Trustee, 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
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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 or the 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 or by the Servicer
for and on behalf of the Indenture Trustee as the Indenture Trustee’s agent and
bailee for purposes of perfecting the Indenture Trustee’s security interest
therein as provided by relevant Uniform Commercial Code or laws; 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 and shall be authorized to
remit
such funds to the Indenture Trustee in accordance with this
Agreement.
(c) The
Master Servicer hereby acknowledges that concurrently with the execution
of this
Agreement, the Indenture Trustee shall own or, to the extent that a court
of
competent jurisdiction shall deem the conveyance of the Mortgage Loans from
the
Seller to the Depositor not to constitute a sale, the Indenture Trustee shall
have a security interest in the Mortgage Loans and in all Mortgage Files
representing such Mortgage Loans and in all funds and investment property
now or
hereafter held by, or under the control of, the Servicer or the Master Servicer
that are collected by the Servicer or the Master Servicer in connection with
the
Mortgage Loans, whether as scheduled installments of principal and interest
or
as full or partial prepayments of principal or interest or as Liquidation
Proceeds or Insurance Proceeds or otherwise, and in all proceeds of the
foregoing and proceeds of proceeds (but excluding any fee or other amounts
to
which the Servicer or the Master Servicer is entitled to hereunder); and
the
Master Servicer agrees that so long as the Mortgage Loans are assigned to
and
held by the Indenture Trustee or the Custodian, all documents or instruments
constituting part of the Mortgage Files, and such funds relating to the Mortgage
Loans which come into the possession or custody of, or which are subject
to the
control of, the Master Servicer or the Servicer shall be held by the Master
Servicer or the Servicer for and on behalf of the Indenture Trustee as the
Indenture Trustee’s agent and bailee for purposes of perfecting the Indenture
Trustee’s security interest therein as provided by the applicable Uniform
Commercial Code or other applicable laws.
(d) The
Master Servicer agrees that it shall not, and shall not authorize the Servicer
to, create, incur or subject any Mortgage Loans, or any funds that are deposited
in any Custodial Account, Escrow Account or the Collection Account, or any
funds
that otherwise are or may become due or payable to the Indenture Trustee,
to any
claim, lien, security interest, judgment, levy, writ of attachment or other
encumbrance, nor assert by legal action or otherwise any claim or right of
setoff against any Mortgage Loan or any funds collected on, or in connection
with, a Mortgage Loan.
Section
5.16. Opinion. On
or before the Closing Date, the Master Servicer shall cause to be delivered
to
the Depositor, the Seller, the Indenture Trustee, the Issuing Entity, the
Trust
Administrator, the Swap Counterparty and the Servicer one or more Opinions
of
Counsel, dated the Closing Date, in form and substance reasonably satisfactory
to the Depositor and a
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representative
of the Underwriters, as to the due authorization, execution and delivery
of this
Agreement by the Master Servicer and the enforceability thereof.
Section
5.17.
[Reserved].
Section
5.18.
[Reserved].
Section
5.19.
[Reserved].
Section
5.20. Indenture
Trustee To Retain
Possession of Certain Insurance Policies and Documents. The
Indenture Trustee (or the Custodian on behalf of the Indenture Trustee) shall
retain possession and custody of the originals of the 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 payable in respect of the Notes
have been paid in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Indenture Trustee (or the Custodian)
shall
also 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 the Servicer to deliver to the
Indenture Trustee (or the Custodian), upon the execution or receipt thereof
the
originals of the primary mortgage insurance policies and any certificates
of
renewal thereof, and such other documents or instruments that constitute
portions of the Mortgage File that come into the possession of the Master
Servicer or the Servicer from time to time.
Section
5.21. Compensation
to the Master
Servicer. As compensation for its services hereunder, the
Master Servicer shall be entitled to retain all income and gain realized
from
any investment of funds in the Collection Account pursuant to Section
5.07(e) and the Master Servicing Fee (together, the “Master Servicing
Compensation”). Notwithstanding the foregoing, the Master Servicer
shall deposit in the Collection Account, on or before the related Payment
Date,
an amount equal to the lesser of (i) its master servicing compensation with
respect to such Payment Date and (ii) the amount of any Compensating Interest
Payment required to be paid by the Servicer with respect to such Payment
Date
pursuant to this Agreement, but which is not paid by the
Servicer. The Master Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not
be
entitled to reimbursement therefor except as provided in this
Agreement.
Section
5.22.
[Reserved].
Section
5.23. Reports
to the Indenture
Trustee.
(a) Not
later
than 30 days after each Payment Date, the Trust Administrator shall, upon
request, forward to the Indenture Trustee a statement, deemed to have been
certified by a officer of the Trust Administrator, setting forth the status
of
the Collection Account maintained by the Trust Administrator as of the close
of
business on the related Payment Date, indicating that all payments required
by
this Agreement to be made by the Trust Administrator have been made (or if
any
required payment has not been made by the Trust Administrator, specifying
the
nature and status thereof) and showing, for the period covered by such
statement, the aggregate of deposits into and withdrawals from the Collection
Account maintained by the Trust Administrator. Copies of such
statement shall be provided by the Trust Administrator, upon
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request,
to the Depositor, Attention: Contract Finance and any Noteholders (or
by the Indenture Trustee at the Trust Administrator’s expense if the Trust
Administrator shall fail to provide such copies to the Noteholders, unless
(i)
the Trust Administrator shall have failed to provide the Indenture Trustee
with
such statement or (ii) the Indenture Trustee shall be unaware of the Trust
Administrator’s failure to provide such statement).
(b) Not
later
than two Business Days following each Payment Date, the Trust Administrator
shall deliver to one Person designated by the Depositor, in a format consistent
with other electronic loan level reporting supplied by the Master Servicer
in
connection with similar transactions, “loan level” information with respect to
the Mortgage Loans as of the related Determination Date, to the extent that
such
information has been provided to the Master Servicer by the Servicer or by
the
Depositor.
(c) All
information, reports and statements prepared by the Master Servicer under
this
Agreement shall be based on information supplied to the Master Servicer by
the
Servicer without independent verification thereof and the Master Servicer
shall
be entitled to rely on such information.
The
Servicer, the Indenture Trustee and each Additional Servicer shall deliver
to
the Depositor and the Trust Administrator on or before March 10 (with a 5
calendar day cure period) of each year, commencing in March 200[ ],
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 an Additional Servicer, 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 an Additional Servicer,
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.
Section
5.25. Assessment
of Compliance and
Attestation Reports.
(a) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March
200[ ], the Servicer, the Indenture Trustee and any Additional
Servicer, each at its own expense, shall furnish, and each of the preceding
parties, as applicable, shall cause any Servicing Function Participant engaged
by it to furnish, each at its own expense, to the Trust 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 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 8.07(c), 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
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issued
an
attestation report on such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for such period.
(b) When
the
Servicer, the Indenture Trustee, or any Additional Servicer submit their
assessments to the Trust Administrator, such parties will also at such time
include the assessment (and attestation pursuant to Section 5.25(c)) of each
Servicing Function Participant engaged by it and shall indicate to the Trustee
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function
Participant. Promptly after receipt of each such report on assessment
of compliance, the Trust Administrator shall confirm that the assessments,
taken
as a whole, address all of the Servicing Criteria and taken individually
address
the Relevant Servicing Criteria for each party as set forth on Exhibit L
and
notify the Depositor of any exceptions.
(c) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March
200[ ], the Servicer, each Additional Servicer and the Indenture
Trustee, each at its own expense, shall cause, and each of the preceding
parties, as applicable, 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 Servicer, the Additional Servicers
and the Indenture Trustee, 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 a report to the Trust 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 PCAOB, 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.
(d) Promptly
after receipt of such report from the Servicer, the Additional Servicers
and the
Indenture Trustee, or any Servicing Function Participant engaged by such
parties, the Trust Administrator shall confirm that each assessment submitted
pursuant to Section 5.25(a) is coupled with an attestation meeting the
requirements of this Section and notify the Depositor of any
exceptions.
Section
5.26. Merger
or
Consolidation. Any Person into which the Master Servicer may
be merged or consolidated, or any Person resulting from any merger, conversion,
other change in form 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 to the Master Servicer hereunder, without the execution or
filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that the
successor or resulting Person to the Master Servicer shall be a Person that
shall be qualified and approved (or that have an Affiliate that is qualified
and
approved) to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and shall
have
a net worth of not less than $15,000,000.
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Section
5.27. Resignation
of Master
Servicer. Except as otherwise provided in Sections 5.26 and
this Section 5.27 hereof, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it unless it or the Indenture Trustee
determines that the Master Servicer’s duties hereunder are no longer permissible
under applicable law or are in material conflict by reason of applicable
law
with any other activities carried on by it and cannot be cured. Any
such determination permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Counsel that shall be Independent to such effect
delivered to the Indenture Trustee. No such resignation shall become
effective until the Indenture Trustee shall have assumed, or a successor
master
servicer shall have been appointed by the Indenture Trustee and until such
successor shall have assumed, the Master Servicer’s responsibilities and
obligations under this Agreement. Notice of such resignation shall be
given promptly by the Master Servicer and the Depositor to the Indenture
Trustee.
Section
5.28. Assignment
or Delegation of
Duties by the Master Servicer. Except as expressly provided
herein, the Master Servicer shall not assign or transfer any of its rights,
benefits or privileges hereunder to any other Person, or delegate to or
subcontract with, or authorize or appoint any other Person to perform any
of the
duties, covenants or obligations to be performed by the Master Servicer
hereunder, unless the Indenture Trustee and the Depositor shall have consented
to such action; provided,
however, that the Master Servicer shall have the right without the prior
written consent of the Indenture Trustee or the Depositor to delegate or
assign
to or subcontract with or authorize or appoint an Affiliate of the Master
Servicer to perform and carry out any duties, covenants or obligations to
be
performed and carried out by the Master Servicer hereunder. In no
case, however, shall any such delegation, subcontracting or assignment to
an
Affiliate of the Master Servicer relieve the Master Servicer of any liability
hereunder. Notice of such permitted assignment shall be given
promptly by the Master Servicer to the Depositor and the Indenture
Trustee. If, pursuant to any provision hereof, the duties of the
Master Servicer are transferred to a successor master servicer, the entire
amount of compensation payable to the Master Servicer pursuant hereto, including
amounts payable to or permitted to be retained or withdrawn by the Master
Servicer pursuant to Section 5.21 hereof, shall thereafter be payable to
such
successor master servicer.
Section
5.29. Limitation
on Liability of
the Master Servicer and Others.
(a) The
Master Servicer undertakes to perform such duties and only such duties as
are
specifically set forth in this Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Master Servicer
from liability for its own negligent action, its own negligent failure to
act or
its own willful misconduct; provided, however, that the
duties and obligations of the Master Servicer shall be determined solely
by the
express provisions of this Agreement, the Master Servicer shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement; no implied covenants or obligations shall be
read
into this Agreement against the Master Servicer and, in absence of bad faith
on
the part of the Master Servicer, the Master Servicer may conclusively rely,
as
to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Master Servicer
and
conforming to the requirements of this Agreement.
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(c) Neither
the Master Servicer nor any of the directors, officers, employees or agents
of
the Master Servicer shall be under any liability to the Indenture Trustee
or the
Noteholders for any action taken or for refraining from the taking of any
action
in good faith pursuant to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Master Servicer or any such person against
any
liability that would otherwise be imposed by reason of willful misfeasance,
fraud, bad faith or negligence in its performance of its duties or by reason
of
reckless disregard for its obligations and duties under this
Agreement. The Master Servicer and any director, officer, employee or
agent of the Master Servicer shall be entitled to indemnification by the
Trust
Estate and will be held harmless against any loss, liability or expense incurred
in connection with any legal action relating to this Agreement or the Notes
other than any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of his or its duties
hereunder or by reason of reckless disregard of his or its obligations and
duties hereunder. 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. The Master Servicer shall be under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties to master service the Mortgage Loans in accordance
with
this Agreement and that in its opinion may involve it in any expenses or
liability; provided, however,
that the Master
Servicer may in its sole discretion undertake any such
action that it may deem necessary or desirable in respect to this Agreement
and
the rights and duties of the parties hereto and the interests of the Noteholders
hereunder. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
of the Issuing Entity and the Master Servicer shall be entitled to be reimbursed
therefor out of the Collection Account it maintains as provided by Section
5.08.
Section
5.30. Indemnification;
Third-Party
Claims. The Master Servicer agrees to indemnify the Depositor,
the Issuing Entity and the Indenture Trustee, the Owner Trustee, the Swap
Counterparty, and the Servicer and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liability, fees and expenses that the Depositor,
the Issuing Entity, the Indenture Trustee, the Owner Trustee, the Swap
Counterparty, or the Servicer may sustain as a result of the failure of the
Master Servicer to perform its duties and master service the Mortgage Loans
in
compliance with the terms of this Agreement. The Depositor, the
Issuing Entity, the Indenture Trustee, the Owner Trustee, and the Servicer
shall
immediately notify the Master Servicer if a claim is made by a third party
with
respect to this Agreement, the Mortgage Loans entitling the Depositor, the
Issuing Entity, the Indenture Trustee, the Owner Trustee, or the Servicer
to
indemnification under this Section 5.30, whereupon the Master Servicer shall
assume the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against it or them in respect of
such
claim.
Section
5.31. Alternative
Index. In the event that the Index for any Mortgage Loan, as
specified in the related Mortgage Note, becomes unavailable for any reason,
the
Master Servicer shall select an alternative index in accordance with the
terms
of such Mortgage Note or, if such Mortgage Note does not make provision for
the
selection of an alternative index in such event, the Master Servicer shall,
subject to applicable law, select an alternative index based on
98
information
comparable to that used in connection with the original Index and, in either
case, such alternative index shall thereafter be the Index for such Mortgage
Loan.
Section
5.32. Transfer
of
Servicing. The Servicer agrees that it shall provide written
notice to the Master Servicer and the Indenture Trustee and the Swap
Counterparty thirty days prior to any proposed transfer or assignment by
the
Servicer of the servicing of the Mortgage Loans. In addition, the
ability of the Servicer to transfer or assign the servicing hereunder to
a
successor servicer shall be subject to the following conditions:
(i) receipt
of written consent of the Master Servicer and Indenture Trustee to such
transfer;
(ii) Such
successor servicer must be qualified to service loans for FNMA or FHLMC,
and
must be a member in good standing of MERS;
(iii) Such
successor servicer must satisfy the servicer eligibility standards set forth
in
Section 4.06(d);
(iv) Such
successor servicer must execute and deliver to the Indenture Trustee an
agreement, in form and substance reasonably satisfactory to the Indenture
Trustee, that contains an assumption by such successor servicer of the due
and
punctual performance and observance of each covenant and condition to be
performed and observed by the Servicer;
(v) If
the
successor servicer is not a Servicer of Mortgage Loans at the time of the
transfer, there must be delivered to the Indenture Trustee a letter from
each
Rating Agency to the effect that such transfer of servicing will not result
in a
qualification, withdrawal or downgrade of the then-current rating of any
of the
Notes; and
(vi) The
Servicer shall, at its cost and expense, take such steps, or cause the
terminated Servicer to take such steps, as may be necessary or appropriate
to
effectuate and evidence the transfer of the servicing of the Mortgage Loans
to
such successor servicer, including, but not limited to, the
following: (A) to the extent required by the terms of the Mortgage
Loans and by applicable federal and state laws and regulations, the Seller
shall
cause the prior Servicer to timely mail to each obligor under a Mortgage
Loan
any required notices or disclosures describing the transfer of servicing
of the
Mortgage Loans to the successor servicer; (B) prior to the effective date
of
such transfer of servicing, the Seller shall cause the prior Servicer to
transmit to any related insurer notification of such transfer of servicing;
(C)
on or prior to the effective date of such transfer of servicing, the Seller
shall cause the prior Servicer to deliver to the successor servicer all Mortgage
Loan Documents and any related records or materials; (D) on or prior to the
effective date of such transfer of servicing, the Seller shall cause the
prior
Servicer to transfer to the successor servicer, or, if such transfer occurs
after a Servicer Remittance Date but before the next succeeding Payment Date,
to
the Indenture Trustee, all funds held by the prior Servicer in respect of
the
Mortgage Loans; (E) on or prior to the effective date of such transfer of
servicing, the Seller shall cause the prior Servicer to, after the effective
date of the transfer of servicing to the successor servicer, continue to
forward
to such successor servicer, within one Business Day of receipt, the amount
of
any payments or other recoveries received by the prior Servicer, and to notify
the successor servicer of the source and proper
99
application
of each such payment or recovery; and (F) the Seller shall cause the prior
Servicer to, after the effective date of transfer of servicing to the successor
servicer, continue to cooperate with the successor servicer to facilitate
such
transfer in such manner and to such extent as the successor servicer may
reasonably request. Notwithstanding the foregoing, the prior Servicer
shall be obligated to perform the items listed above to the extent provided
in
the applicable Servicing Agreement.
ARTICLE
VI
Section
6.01. The
Collection
Account.
(a) The
Trust
Administrator shall establish and maintain in the name of the Securities
Intermediary the Collection Account as provided in Section 5.07, which account
shall be pledged to the Indenture Trustee for the benefit of the Noteholders
and
the Swap Counterparty.
(b)
The
Trust Administrator shall make withdrawals from the Collection Account only
for
the purposes set forth in Section 5.08.
Section
6.02. Payments
from the Collection
Account.
(a) On
each
Payment Date, the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) shall withdraw from the Collection Account the Total
Remittance Amount (to the extent such amount is on deposit in the Collection
Account) and shall pay such amount as specified in this Section. All
allocations and payments made between and with respect to Group 1 and Group
2 in
this Section shall be made concurrently.
(b)
On each
Payment Date, the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) shall pay the Interest Funds for Group 1 for such date
in the
following order of priority in accordance with the report of the Trust
Administrator:
(i) to
the
Swap Counterparty, to the extent not previously paid from the Collection
Account, the Group 1 Percentage of any Net Swap Payment for such Payment
Date
and swap termination amounts payable to the Swap Counterparty in the event
that
the Trust is a defaulting party or an affected party under the terms of the
Swap
Agreement;
(ii) to
the Class 1-A Notes,
Current Interest thereon for such Payment Date;
(iii) pro
rata, to the Class 2-A1
Notes, the Class 2-A2 Notes and the Class 2-A3 Notes, Current Interest thereon
(after giving effect to the payment of the Interest Funds for Group 2) for
such
Payment Date; and
(iv) for
application pursuant to clause (d) below, any Interest Funds for
Group 1 remaining undistributed for such Payment Date.
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(c)
On each
Payment Date, the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) shall pay the Interest Funds for Group 2 for such date
in the
following order of priority in accordance with the report of the Trust
Administrator:
(i) to
the
Swap Counterparty, to the extent not previously paid from the Collection
Account, the Group 2 Percentage of any Net Swap Payment for such Payment
Date
and swap termination amounts payable to the Swap Counterparty in the event
that
the Trust is a defaulting party or an affected party under the terms of the
Swap
Agreement;
(ii) pro
rata, to Class 2-A1
Notes, Class 2-A2 Notes and Class 2-A3 Notes, Current Interest thereon for
such
Payment Date;
(iii) to
the Class 1-A
Notes, Current Interest thereon (after giving effect to the payment
of the Interest Funds for Group 1) for such Payment Date; and
(iv) for
application pursuant to clause (d) below, any Interest Funds for
Group 2 remaining undistributed for such Payment Date.
(d)
On each
Payment Date, the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) shall pay the aggregate of any remaining Interest Funds
for
Group 1 and Group 2 from Section 6.02(b)(iv) and Section 6.02(c)(iv),
respectively, for such Payment Date in the following order of priority in
accordance with the report of the Trust Administrator:
(i) to
the
Class M1 Notes, Current Interest for such Class for such Payment
Date;
(ii) to
the
Class M2 Notes, Current Interest for such Class for such Payment
Date;
(iii) to
the
Class M3 Notes, Current Interest for such Class for such Payment
Date;
(iv) to
the
Class M4 Notes, Current Interest for such Class for such Payment
Date;
(v) to
the
Class M5 Notes, Current Interest for such Class for such Payment
Date;
(vi) to
the
Class M6 Notes, Current Interest for such Class for such Payment
Date;
(vii) to
the
Class M7 Notes, Current Interest for such Class for such Payment
Date;
(viii) to
the
Indenture Trustee, the Owner Trustee, the Master Servicer, the Trust
Administrator, and the Servicer, previously unreimbursed extraordinary costs,
liabilities and expenses to the extent provided in this Agreement;
and
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(ix) for
application as part of Monthly Excess Cashflow for such Payment Date, as
provided in subsection (f) of this Section any Interest Funds for Group 1
and
Group 2 remaining undistributed for such Payment Date.
(e) On
each
Payment Date, the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) shall pay the Principal Funds for such date in accordance
with the report of the Trust Administrator as follows:
(i) On
each
Payment Date (a) prior to the Stepdown Date or (b) with respect to which
a
Trigger Event is in effect, the Indenture Trustee (or the Paying Agent on
behalf
of the Indenture Trustee) shall make the following payments to the extent
of
funds then in the Collection Account available therefor,
concurrently:
(1) For
Group 1: The
Principal Payment Amount for Group 1 will be paid in the following order
of
priority:
(A) to
the
Swap Counterparty, to the extent not previously paid from the Collection
Account, the Group 1 Percentage of swap termination amounts payable to the
Swap
Counterparty in the event that the Trust is a defaulting party or an affected
party under the terms of the Swap Agreement;
(B)
to the
Class 1-A Notes, until the Class Principal Amount of such Class has been
reduced
to zero;
(C) sequentially,
to the Class 2-A1, Class 2-A2 and Class 2-A3 Notes, in that order, after
giving
effect to payments pursuant to subsection 6.02(e)(i)(2)(B), until the Class
Principal Amount of each such Class has been reduced to zero; provided that if on any
Payment Date the Total Principal Deficiency Amount exceeds the aggregate
of the
Class Principal Amounts of the Class M Notes, all payments pursuant to this
clause shall be made concurrently, on a pro rata basis, to the Class
2-A1 Notes, the Class 2-A2 Notes and the Class 2-A3 Notes;
(D) to
the
Class M1 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(E) to
the
Class M2 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(F) to
the
Class M3 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(G) to
the
Class M4 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(H) to
the
Class M5 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
102
(I) to
the
Class M6 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(J) to
the
Class M7 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(K) to
the
Swap Counterparty, to the extent not previously paid, the Group 1 Percentage
of
swap termination amounts payable to the Swap Counterparty in the event that
the
Swap Counterparty is a defaulting party or the sole affected party under
the
terms of the Swap Agreement; and
(L) for
application as part of Monthly Excess Cashflow for such Payment Date, as
provided for in subsection (f) of this Section, any such Principal Payment
Amount for Group 1 remaining after application pursuant to clauses (A) through
(K) above.
(2) For
Group 2: The
Principal Payment Amount for Group 2 will be paid in the following order
of
priority:
(A) to
the
Swap Counterparty, to the extent not previously paid from the Collection
Account, the Group 2 Percentage of swap termination amounts payable to the
Swap
Counterparty in the event that the Trust is a defaulting party or an affected
party under the terms of the Swap Agreement;
(B)
sequentially, to the Class 2-A1, Class 2-A2 and Class 2-A3 Notes, until the
Class Principal Amount of each such Class has been reduced to zero; provided that if on any
Payment Date the Total Principal Deficiency Amount exceeds the aggregate
of the
Class Principal Amounts of the Class M Notes, all payments pursuant to this
clause shall be made concurrently, on a pro rata basis, to the Class
2-A1 Notes, the Class 2-A2 Notes and the Class 2-A3 Notes;
(C) to
the
Class 1-A Notes, after giving effect to payments pursuant to subsection
6.02(e)(i)(1)(B), until the Class Principal Amount of such Classes has been
reduced zero;
(D) to
the
Class M1 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(E) to
the
Class M2 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(F) to
the
Class M3 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(G) to
the
Class M4 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
103
(H) to
the
Class M5 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(I) to
the
Class M6 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(J) to
the
Class M7 Notes, until the Class Principal Amount of such Class has been reduced
to zero;
(K) to
the
Swap Counterparty, to the extent not previously paid, the Group 2 Percentage
of
swap termination amounts payable to the Swap Counterparty in the event that
the
Swap Counterparty is a defaulting party or the sole affected party under
the
terms of the Swap Agreement; and
(L) for
application as part of Monthly Excess Cashflow for such Payment Date, as
provided for in subsection (f) of this Section, any such Principal Payment
Amount for Group 2 remaining after application pursuant to clauses (A) through
(K) above.
(ii) On
each
Payment Date (a) on or after the Stepdown Date and (b) with respect to which
a
Trigger Event is not in effect, the Indenture Trustee (or the Paying Agent
on
behalf of the Indenture Trustee) shall pay the Principal Payment Amount for
such
date in the following order of priority:
(1) to
the
Swap Counterparty, to the extent not previously paid from the Collection
Account, swap termination amounts payable to the Swap Counterparty in the
event
that the Trust is a defaulting party or an affected party under the terms
of the
Swap Agreement;
(2) to
the Class 1-A Notes (from amounts in Group 1 except as provided below) and,
sequentially, to the Class 2-A1, Class 2-A2 and Class 2-A3 Notes (from amounts
in Group 2 except as provided below), in that order, in each case, an amount
equal to the lesser of (x) the Principal Payment Amount for the related Mortgage
Group for such Payment Date and (y) the Related Senior Principal Payment
Amount
for such Mortgage Group for such Payment Date, in each case until the Class
Principal Amount of each such Class or Classes has been reduced to zero;
provided, however, to the
extent that the Principal Payment Amount for a Mortgage Group exceeds the
Related Senior Principal Payment Amount for such Mortgage Group, such excess
shall be applied to the Class or Classes of Senior Notes of the other Mortgage
Group (with respect to the Class 1-A Notes, pro rata, and with respect
to
the Class 2-A1, Class 2-A2 and Class 2-A3 Notes, sequentially, in that order),
but in an amount not to exceed the Senior Principal Payment Amount for such
Payment Date (as reduced by any payments pursuant to subclauses (x) and (y)
of this Subsection (2)(a) on such Payment Date; provided that if on any
Payment Date the Total Principal Deficiency Amount exceeds the aggregate
of the
Class Principal Amounts of the Class M Notes, to the Class 1-A Notes (from
amounts in Group 1) and to the Class 2-A1, Class 2-A2
104
and
Class
2-A3 Notes (from amounts in Group 2), pro rata, the Principal
Payment Amount for the related Mortgage Group for such Payment
Date;
(3) to
the
Class M1 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes on such Payment
Date
pursuant to clause (2) above, and (y) the M1 Principal Payment Amount for
such
Payment Date, until the Class Principal Amount of such Class has been reduced
to
zero;
(4) to
the
Class M2 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes and the Class M1
Notes
on such Payment Date pursuant to clauses (2) and (3) above, respectively,
and
(y) the M2 Principal Payment Amount for such Payment Date, until the Class
Principal Amount of such Class has been reduced to zero;
(5) to
the
Class M3 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes and the Class M1
and
Class M2 Notes on such Payment Date pursuant to clauses (2), (3) and (4)
above,
respectively, and (y) the M3 Principal Payment Amount for such Payment Date,
until the Class Principal Amount of such Class has been reduced to
zero;
(6) to
the
Class M4 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes and the Class M1,
Class M2 and Class M3 Notes on such Payment Date pursuant to clauses (2),
(3),
(4) and (5) above,
respectively, and (y) the M4 Principal Payment Amount for such Payment Date,
until the Class Principal Amount of each such Class has been reduced to
zero;
(7) to
the
Class M5 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes and the Class M1,
Class M2, Class M3 and Class M4 Notes on such Payment Date pursuant to clauses
(2), (3), (4), (5)
and
(6) above,
respectively, and (y) the M5 Principal Payment Amount for such Payment Date,
until the Class Principal Amount of each such Class has been reduced to
zero;
(8) to
the
Class M6 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes and the Class M1,
Class M2, Class M3, Class M4 and Class M5 Notes on such Payment Date pursuant
to
clauses (2), (3), (4), (5), (6) and (7) above, respectively,
105
and
(y)
the M6 Principal Payment Amount for such Payment Date, until the Class Principal
Amount of each such Class has been reduced to zero;
(9) to
the
Class M7 Notes, an amount equal to the lesser of (x) the excess of (a) the
aggregate Principal Payment Amounts for each of Group 1 and Group 2 for such
Payment Date over (b) the amount paid to the Senior Notes and the Class M1,
Class M2, Class M3, Class M4, Class M5 and Class M6 Notes on such Payment
Date
pursuant to clauses (2), (3), (4), (5), (6), (7) and (8) above,
respectively, and (y) the M7 Principal Payment Amount for such Payment Date,
until the Class Principal Amount of each such Class has been reduced to zero;
and
(10) to
the
Swap Counterparty, to the extent not previously paid, swap termination amounts
payable to the Swap Counterparty in the event that the Swap Counterparty
is a
defaulting party or the sole affected party under the terms of the Swap
Agreement; and
(11) for
application as part of Monthly Excess Cashflow for such Payment Date, as
provided in subsection (e) of this Section, any Principal Payment Amount
remaining after application pursuant to clauses (1) through (10)
above.
(f)
On each
Payment Date, the Indenture Trustee (or the Paying Agent on behalf of the
Indenture Trustee) shall pay the Monthly Excess Cashflow for such date in
accordance with the report of the Trust Administrator as follows:
(i)
for each
Payment Date occurring (a) before the Stepdown Date or (b) on or after the
Stepdown Date but for which a Trigger Event is in effect:
(a)
up to the Overcollateralization Deficiency Amount for such Payment Date,
in the
following order of priority:
i. concurrently,
in proportion to the aggregate Class Principal Amounts of each Class of
Senior Notes, after giving effect to previous principal payments on
such Payment Date pursuant to subsections 6.02(e)(i)(1) and 6.02(e)(i)(2),
to
the Class 1-A, Class 2-A1, Class 2-A2 and Class 2-A3 Notes (with
respect to the Class 2-A1, Class 2-A2 and Class 2-A3 Notes, to be paid
sequentially, in that order; provided that if on any
Payment Date the Total Principal Deficiency Amount exceeds the aggregate
Class
Principal Amounts of the Class M Notes, all payments pursuant to this clause
will be made concurrently, on a pro rata basis, to the
Class
2-A1 Notes, the Class 2-A2 Notes and the Class 2-A3 Notes), until the Class
Principal Amount of each such Class has been reduced to zero;
ii. to
the
Class M1 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero;
106
iii. to
the
Class M2 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero;
iv. to
the
Class M3 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero;
v. to
the
Class M4 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero;
vi. to
the
Class M5 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero;
vii. to
the
Class M6 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero; and
viii. to
the
Class M7 Notes, in reduction of their Class Principal Amount, until the Class
Principal Amount of such Class has been reduced to zero;
(b)
to the extent of any Available Funds Shortfall, to the payment of such amounts
to the Notes, in the order of priority of the Classes of Notes as set forth
immediately above in proportion and with respect to the Senior Notes to their
amount of unpaid Available Funds Shortfalls, until each such Class has received
in full all amounts of any Available Funds Shortfall.
(c)
to the Swap Counterparty, to the extent not previously paid, swap termination
amounts payable to the Swap Counterparty in the event that the Swap Counterparty
is a defaulting party or the sole affected party under the terms of the Swap
Agreement;
(d)
sequentially, to the Class M1 Notes, Class M2 Notes, Class M3 Notes, Class
M4
Notes, Class M5 Notes, Class M6 Notes and Class M7 Notes in that order, Deferred
Interest, if any, for such Class, until each such Class has received in full
its
Deferred Interest; and
(e)
to the Ownership Certificate, any amount remaining on such date after
application pursuant to clauses (a) through (d) above; or
(ii) for
each
Payment Date occurring on or after the Stepdown Date and for which a Trigger
Event is not in effect, the Indenture Trustee (or the Paying Agent on behalf
of
the Indenture Trustee) shall pay, in accordance with the report of the Trust
Administrator, in the following order of priority:
107
(a)
concurrently, in proportion to the aggregate Class Principal Amounts of each
Class of Senior Notes, after giving effect to previous principal payments
on
such Payment Date pursuant to subsections 6.02(d)(ii)(1) and 6.02(d)(ii)(2),
to
the Class 1-A, Class 2-A1, Class 2-A2 and Class 2-A3 Notes(with respect to
the
Class 2-A1, Class 2-A2 and Class 2-A3 Notes, to be paid sequentially, in
that
order; provided that if
on any Payment Date the Total Principal Deficiency Amount exceeds the aggregate
Class Principal Amounts of the Class M Notes, all payments pursuant to this
clause will be made concurrently, on a pro rata basis, to the
Class
2-A1 Notes, the Class 2-A2 Notes and the Class 2-A3 Notes), until the
aggregate Class Principal Amount of each such Class, after giving effect
to
payments on such Payment Date, equals the Senior Target Amount;
(b)
to the Class M1 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3 and Class M1 Notes, after giving effect to payments on such Payment
Date,
equals the M1 Target Amount;
(c)
to the Class M2 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3, Class M1 and Class M2 Notes, after giving effect to payments on such
Payment Date, equals the M2 Target Amount;
(d)
to the Class M3 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3, Class M1, Class M2 and Class M3 Notes, after giving effect to payments
on
such Payment Date, equals the M3 Target Amount;
(e)
to the Class M4 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3, Class M1, Class M2, Class M3 and Class M4 Notes, after giving effect
to
payments on such Payment Date, equals the M4 Target Amount;
(f)
to the Class M5 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3, Class M1, Class M2, Class M3, Class M4 and Class M5 Notes, after giving
effect to payments on such Payment Date, equals the M5 Target
Amount;
(g)
to the Class M6 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3, Class M1, Class M2, Class M3, Class M4, Class M5 and Class M6 Notes,
after
giving effect to payments on such Payment Date, equals the M6 Target
Amount;
108
(h)
to the Class M7 Notes, in reduction of their Class Principal Amount, until
the
aggregate Class Principal Amount of the Class 1-A, Class 2-A1, Class 2-A2,
Class
2-A3, Class M1, Class M2, Class M3, Class M4, Class M5, Class M6 and Class
M7
Notes, after giving effect to payments on such Payment Date, equals the M7
Target Amount;
(o)
to the extent of any Available Funds Shortfall, to the payment of such amounts
to the Notes, in the order of priority of the Classes of Notes as set forth
immediately above, and with respect to the Senior Notes, in proportion to
their
amount of unpaid Available Funds Shortfalls, until each such Class has received
in full all amounts of any Available Funds Shortfall;
(p)
to the Swap Counterparty, to the extent not previously paid, swap termination
amounts payable to the Swap Counterparty in the event that the Swap Counterparty
is a defaulting party or the sole affected party under the terms of the Swap
Agreement under the Swap Agreement;
(q)
sequentially, to the Class M1 Notes, Class M2 Notes, Class M3 Notes, Class
M4
Notes, Class M5 Notes, Class M6 Notes and Class M7 Notes, in that order,
Deferred Interest, if any, for such Class, until each such Class has received
in
full its Deferred Interest; and
(r)
to the Ownership Certificate, any amount remaining on such date after
application pursuant to clauses (a) through (q) above.
On
the
Redemption Date, the Indenture Trustee (or the Paying Agent on behalf of
the
Indenture Trustee) shall distribute to each Class of Notes the related
Redemption Price therefor, as set forth in the Indenture.
Section
6.03. Net
Swap Payments and Net
Swap Receipts.
(a) Any
Net
Swap Receipts shall be deposited by the Swap Counterparty into the Basis
Risk
Reserve Account in accordance with the terms of the Swap
Agreement. On any Payment Date for which there are funds on deposit
in the Basis Risk Reserve Account, the Indenture Trustee (or the Paying Agent
on
behalf of the Indenture Trustee) shall withdraw such amounts from the Basis
Risk
Reserve Account and deposit such amounts in the Collection Account, and from
the
Collection Account shall apply the Group 1 Percentage of such Net Swap Receipt
as Interest Funds for Group 1 and shall make payments specified in the order
and
priority described in Section 6.02 above.
(b) Any
Net
Swap Receipts shall be deposited by the Swap Counterparty into the Basis
Risk
Reserve Account in accordance with the terms of the Swap
Agreement. On any Payment Date for which there are funds on deposit
in the Basis Risk Reserve Account, the Indenture Trustee (or the
Paying Agent on behalf of the Indenture Trustee) shall deposit such amounts
in
the Collection Account, and from the Collection Account, shall apply
the Group 2 Percentage of such Net Swap Receipt as Interest Funds for Group
2
and shall make payments specified in the order and priority described in
Section
6.02 above.
109
Section
6.04.
Control
of the Trust Account and Deferred Interest.
(a) The
Depositor, the Issuing Entity and the Indenture Trustee hereby
appoint the Trust Administrator as Securities Intermediary with
respect to the Trust Account, and the Issuing Entity has, pursuant to the
Indenture, granted to the Indenture Trustee, for the benefit of the Noteholders
and the Swap Counterparty, a security interest to secure all amounts due
Noteholders and the Swap Counterparty hereunder in and to the Trust Account
and
the Security Entitlements to all Financial Assets credited to the Trust Account,
including without limitation all amounts, securities, investments, Financial
Assets, investment property and other property from time to time deposited
in or
credited to the Trust Account and all proceeds thereof. Amounts held
from time to time in the Trust Account will continue to be held by the
Securities Intermediary for the benefit of the Indenture Trustee, as collateral
agent, for the benefit of the Noteholders and the Swap
Counterparty. Upon the termination of the Issuing Entity or the
discharge of the Indenture, the Indenture Trustee shall inform the Securities
Intermediary and the Swap Counterparty of such termination. By
acceptance of their Notes or interests therein, the Noteholders shall be
deemed
to have appointed the Trust Administrator as Securities
Intermediary. The Trust Administrator hereby accepts such appointment
as Securities Intermediary.
(b) With
respect to the Trust Account Property credited to the Trust Account, the
Securities Intermediary agrees that:
(i) with
respect to any Trust Account Property that is held in deposit accounts, each
such deposit account shall be subject to the exclusive custody and control
of
the Securities Intermediary, and the Securities Intermediary shall have sole
signature authority with respect thereto;
(ii) the
sole
assets permitted in the Trust Account shall be those as the Securities
Intermediary agrees to treat as Financial Assets; and
(iii) any
such
Trust Account Property that is, or is treated as, a Financial Asset shall
be
physically delivered (accompanied by any required endorsements) to, or credited
to an account in the name of, the Securities Intermediary or other eligible
institution maintaining the Trust Account in accordance with the Securities
Intermediary’s customary procedures such that the Securities Intermediary or
such other institution establishes a Security Entitlement in favor of the
Indenture Trustee with respect thereto over which the Securities Intermediary
or
such other institution has Control;
(c) The
Securities Intermediary hereby confirms that (A) the Trust Account is an
account
to which Financial Assets are or may be credited, and the Securities
Intermediary shall, subject to the terms of this Agreement, treat the Indenture
Trustee, as collateral agent, as entitled to exercise the rights that comprise
any Financial Asset credited to the Trust Account, (B) all Trust Account
Property in respect of the Trust Account will be promptly credited by the
Securities Intermediary to such account, and (C) all securities or other
property underlying any Financial Assets credited to the Trust Account shall
be
registered in the name of the Securities Intermediary, endorsed to the
Securities Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case will
any
Financial
110
Asset
credited to the Trust Account be registered in the name of the Depositor
or the
Issuing Entity, payable to the order of the Depositor or the Issuing Entity
or
specially endorsed to the Depositor or the Issuing Entity, except to the
extent
the foregoing have been specially endorsed to the Securities Intermediary
or in
blank;
(d) The
Securities Intermediary hereby agrees that each item of property (whether
investment property, Financial Asset, security, instrument or cash) credited
to
the Trust Account shall be treated as a Financial Asset;
(e) If
at any
time the Securities Intermediary shall receive an Entitlement Order from
the
Indenture Trustee directing transfer or redemption of any Financial Asset
relating to the Trust Account, the Securities Intermediary shall comply with
such Entitlement Order without further consent by the Depositor, the Issuing
Entity or any other Person. If at any time the Indenture Trustee or
the Trust Administrator notifies the Securities Intermediary in writing that
the
Issuing Entity has been terminated or the Indenture discharged in accordance
herewith and with the Trust Agreement or the Indenture, as applicable, and
the
security interest granted pursuant to the Indenture has been released, then
thereafter if the Securities Intermediary shall receive any order from the
Depositor or the Issuing Entity directing transfer or redemption of any
Financial Asset relating to the Trust Account, the Securities Intermediary
shall
comply with such Entitlement Order without further consent by the Indenture
Trustee or any other Person;
(f) In
the
event that the Securities Intermediary has or subsequently obtains by agreement,
operation of law or otherwise a security interest in the Trust Account or
any
Financial Asset credited thereto, the Securities Intermediary hereby agrees
that
such security interest shall be subordinate to the security interest of the
Indenture Trustee. The Financial Assets credited to the Trust Account
will not be subject to deduction, set-off, banker’s lien, or any other right in
favor of any Person other than the Indenture Trustee (except that the Securities
Intermediary may set-off (i) all amounts due to it in respect of its customary
fees and expenses for the routine maintenance and operation of the Trust
Account
and (ii) the face amount of any checks which have been credited to the Trust
Account but are subsequently returned unpaid because of uncollected or
insufficient funds);
(g) There
are
no other agreements entered into between the Securities Intermediary in such
capacity and the Depositor or the Issuing Entity with respect to the Trust
Account. In the event of any conflict between this Agreement (or any
provision of this Agreement) and any other agreement now existing or hereafter
entered into, the terms of this Agreement shall prevail;
(h) The
rights and powers granted under the Indenture and herein to the Indenture
Trustee have been granted in order to perfect its security interest in the
Trust
Account and the Security Entitlements to the Financial Assets credited thereto,
and are powers coupled with an interest and will neither be affected by the
bankruptcy of the Depositor or the Issuing Entity nor by the lapse of
time. The obligations of the Securities Intermediary hereunder shall
continue in effect until the security interest of the Indenture Trustee in
the
Trust Account, and in such Security Entitlements, has been terminated pursuant
to the terms of this Agreement and the Indenture Trustee or the Issuing Entity,
as applicable, has notified the Securities Intermediary of such termination
in
writing; and
111
(i) Notwithstanding
anything else contained herein, the Depositor and the Issuing Entity agree
that
the Trust Account will be established only with the Securities Intermediary
or
another institution meeting the requirements of this Section, which by
acceptance of its appointment as Securities Intermediary agrees substantially
as
follows: (1) it will comply with Entitlement Orders related to the
Trust Account issued by the Indenture Trustee, as collateral agent, without
further consent by the Depositor or the Issuing Entity, without further consent
by the Depositor; (2) until termination of the Issuing Entity or discharge
of
the Indenture, it will not enter into any other agreement related to such
accounts pursuant to which it agrees to comply with Entitlement Orders of
any
Person other than the Indenture Trustee, as collateral agent; and (3) all
assets
delivered or credited to it in connection with such account and all investments
thereof will be promptly credited to the applicable account.
(j) Notwithstanding
the foregoing, the Issuing Entity shall have the power, revocable by the
Indenture Trustee or by the Owner Trustee with the consent of the Indenture
Trustee, to instruct the Indenture Trustee, the Trust Administrator and the
Master Servicer to make withdrawals and payments from the Trust Account for
the
purpose of permitting the Master Servicer, the Trust Administrator or the
Owner
Trustee to carry out its respective duties hereunder or permitting the Indenture
Trustee to carry out its duties under the Indenture.
(k) Each
of
the Depositor and the Issuing Entity agrees to take or cause to be taken
such
further actions, to execute, deliver and file or cause to be executed, delivered
and filed such further documents and instruments (including, without limitation,
any financing statements under the Relevant UCC or this Agreement) as may
be
necessary to perfect the interests created by this Section in favor of the
Issuing Entity and the Indenture Trustee and otherwise fully to effectuate
the
purposes, terms and conditions of this Section. The Depositor
shall:
(i) promptly
execute, deliver and file any financing statements, amendments, continuation
statements, assignments, certificates and other documents with respect to
such
interests and perform all such other acts as may be necessary in order to
perfect or to maintain the perfection of the Issuing Entity’s and the Indenture
Trustee’s security interest in the Trust Account Property; and
(ii) make
the
necessary filings of financing statements or amendments thereto within five
days
after the occurrence of any of the following: (1) any change in its
corporate name or any trade name or its jurisdiction of organization; (2)
any
change in the location of its chief executive office or principal place of
business; and (3) any merger or consolidation or other change in its identity
or
corporate structure and promptly notify the Issuing Entity and the Indenture
Trustee of any such filings.
(iii) Neither
the Depositor nor the Issuing Entity shall organize under the law of any
jurisdiction other than the State under which each is organized as of the
Closing Date (whether changing its jurisdiction of organization or organizing
under an additional jurisdiction) without giving 30 days prior written notice
of
such action to its immediate and mediate transferee, including the Indenture
Trustee. Before effecting such change, each of the Depositor or the
Issuing Entity proposing to change its jurisdiction of organization shall
prepare and file in the appropriate filing office any financing statements
or
other statements necessary to continue the perfection of the interests of
its
immediate and mediate transferees, including the Indenture
112
Trustee,
in the Trust Account Property. In connection with the transactions
contemplated by the Operative Agreements relating to the Trust Account Property,
each of the Depositor and the Issuing Entity authorizes its immediate or
mediate
transferee, including the Indenture Trustee, to file in any filing office
any
initial financing statements, any amendments to financing statements, any
continuation statements, or any other statements or filings described in
this
Section 6.04.
None
of
the Securities Intermediary or any director, officer, employee or agent of
the
Securities Intermediary shall be under any liability to the Indenture Trustee
or
the Noteholders for any action taken; or not taken, in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Securities Intermediary against any liability
to
the Indenture Trustee or the Noteholders which would otherwise be imposed
by
reason of the Securities Intermediary’s willful misconduct, fraud, bad faith or
negligence in the performance of its obligations or duties
hereunder. The Securities Intermediary and any director, officer,
employee or agent of the Securities Intermediary may rely in good faith on
any
document of any kind which, prima facie, is properly executed and submitted
by
any Person respecting any matters arising hereunder. The Securities
Intermediary shall be under no duty to inquire into or investigate the validity,
accuracy or content of such document. The Issuing Entity shall
indemnify the Securities Intermediary for and hold it harmless against any
loss,
liability or expense arising out of or in connection with this Agreement
and
carrying out its duties hereunder, including the costs and expenses of defending
itself against any claim of liability, except in those cases where the
Securities Intermediary has been guilty of fraud, bad faith, negligence or
willful misconduct. The foregoing indemnification shall survive any
termination of this Agreement or the resignation or removal of the Securities
Intermediary.
Section
6.05. Advances
by Master Servicer
and Servicer.
(a) Subject
to Section 4.03(c), Advances shall be made in respect of each Servicer
Remittance Date as provided herein. If, on any Determination Date,
the Servicer determines that any Scheduled Payments due during the related
Due
Period have not been received, such Servicer shall advance such amount to
the
extent provided in Section 4.03(c) hereof. If any Servicer fails to
remit Advances required to be made under Section 4.03(c) hereof, the Master
Servicer shall itself make, or shall cause the successor Servicer to make,
such
Advance on the Servicer Remittance Date immediately following such Determination
Date. If the Master Servicer determines that an Advance is required,
it shall on the Business Day immediately prior to the related Payment Date
remit
to the Trust Administrator from its own funds (or funds advanced by the
applicable Servicer) for deposit in the Collection Account immediately available
funds in an amount equal to such Advance. The Master Servicer and the
Servicer shall be entitled to be reimbursed from the Collection Account,
and the
Servicer shall be entitled to be reimbursed from its respective Custodial
Account, for all Advances made by it as provided in Section
4.02(e). Notwithstanding anything to the contrary herein, in the
event the Master Servicer determines in its reasonable judgment that an Advance
is a Nonrecoverable Advance, the Master Servicer shall be under no obligation
to
make such Advance.
(b) In
the
event that the Master Servicer or Servicer fails for any reason to make an
Advance required to be made pursuant to this Section 6.05, the Indenture
Trustee, as successor Master Servicer, shall, on or before the related Payment
Date, deposit in the Collection Account an amount equal to the excess of
(a)
Advances required to be made by the Master Servicer or the
113
Servicer
that would have been deposited in such Collection Account over (b) the amount
of
any Advance made by the Master Servicer or the Servicer with respect to such
Payment Date; provided,
however, that the Indenture Trustee as successor Master Servicer, or any
other successor Master Servicer, shall be required to make such Advance only
if
it is not prohibited by law from doing so and it has determined that such
Advance would be recoverable from amounts to be received with respect to
such
Mortgage Loan, including late payments, Liquidation Proceeds, Insurance
Proceeds, or otherwise. The Indenture Trustee as successor Master
Servicer, or any other successor Master Servicer, shall be entitled to be
reimbursed from the Collection Account for Advances made by it pursuant to
this
Section 6.05 as if it were the Master Servicer.
Section
6.06. Pre-Funding
Account.
(a) The
Trust
Administrator has heretofore established or caused to be established and
shall
hereafter maintain or cause to be maintained a separate account denominated
the
Pre-Funding Account, which is and shall continue to be an Eligible Account
in
the name of the Trust Administrator and shall be designated “ [____________], as
Trust Administrator of the SunTrust [ ]
Trust, Series 200[ ]-[__] Pre-Funding Account.” Any investment earnings from the
Pre-Funding Account will be paid to the Seller on the first Business Day
of the
month following each Payment Date during the Pre-Funding Period; provided,
however, that if the final Subsequent Transfer Date occurs after the Payment
Date in a month, on such Subsequent Transfer Date, the Trust Administrator
shall
(i) transfer the Excess Funding Amount from the Pre-Funding Account to the
Collection Account, (ii) transfer any investment earnings to the Seller as
soon
as practicable and (iii) close the Pre-Funding Account. The amount on
deposit in the related Subaccount of the Pre-Funding Account shall be invested
in Eligible Investments at the direction of the Seller in accordance with
the
provisions of Section 4.02(j). All investment earnings on funds on
deposit in the Pre-Funding Account will be treated as owned by, and will
be
taxable to, the Seller.
(b) On
the
Closing Date, the Seller will cause to be deposited (1) $ [____________]
in the
Pool 1 Subaccount and (2) $ [____________] in the Pool 2 Subaccount, in each
case from the sale of the Notes.
(c) On
each
Subsequent Transfer Date, (i) the Seller shall instruct the Trust Administrator
to withdraw from the Pre-Funding Account an amount equal to 100% of the
aggregate Stated Principal Balances of the Subsequent Mortgage Loans sold
to the
Trust on such Subsequent Transfer Date and (ii) the Trust Administrator shall
pay such amounts to or upon the order of the Seller with respect to such
transfer.
(d) If
at the
end of the Pre-Funding Period amounts still remain in the Pre-Funding Account,
the Trust Administrator shall withdraw such amounts, exclusive of investment
income, from the Pre-Funding Account on the immediately following Payment
Date
and deposit such amounts in the Collection Account.
(e) Unless
closed as provided in Section 6.06(a) above, the Pre-Funding Account shall
be
closed at the close of business on the Payment Date immediately following
the
end of the Pre-Funding Period.
114
Section
6.07.
Establishment of Basis Risk Reserve Account.
(a) The
Trust
Administrator shall establish and maintain an Eligible Account in its name
in
trust for the benefit of the Noteholders, the Basis Risk Reserve
Account.
(b) The
Swap
Counterparty shall deposit any Net Swap Receipts into the Basis Risk Reserve
Account as provided in the Swap Agreement. Amounts on deposit in the
Basis Risk Reserve Account shall remain uninvested.
ARTICLE
VII
ADMINISTRATION
OF THE AGREEMENTS
Section
7.01. Duties
of the Trust
Administrator.
(a) The
Trust
Administrator agrees to perform all of the duties of the Issuing Entity under
the Depository Agreement. In addition to its duties performed under
the Depository Agreement, the Trust Administrator shall take all appropriate
action that is the duty of the Issuing Entity to take with respect to the
following matters under the Trust Agreement, this Agreement and the
Indenture:
(i) the
duty
to cause the Note Register to be kept if the Issuing Entity assumes the duties
of Note Registrar, and to give the Indenture Trustee notice of any appointment
of a new Note Registrar and the location, or change in location, of the Note
Register (Section 2.04 of the Indenture);
(ii) the
duty
to cause the Certificate Register to be kept if the Issuing Entity assumes
the
duties of Certificate Registrar, and to give the Owner Trustee notice of
any
appointment of a new Certificate Registrar and the location, or change in
location, of the Certificate Register (Section 3.03 of the Trust
Agreement);
(iii) causing
the preparation of the Notes for execution by the Owner Trustee upon the
registration of any transfer or exchange of the Notes (Sections 2.04 and
2.05 of
the Indenture);
(iv) causing
the preparation of Definitive Notes in accordance with the instructions of
any
Clearing Agency, the duty to attempt to locate a qualified successor to the
Clearing Agency, if necessary, and the preparation of written notice to the
Indenture Trustee of termination of the book-entry system through the Clearing
Agency (Section 2.12 of the Indenture);
(v) the
maintenance of an office for registration of transfer or exchange of Notes
(Section 3.02 of the Indenture);
(vi) the
maintenance of an office for registration of transfer or exchange of the
Ownership Certificate (Section 3.03 of the Trust Agreement);
115
(vii) the
calculation of accrual of original issue discount and the amortization of
premium on the Notes (Section 3.03(v) of the Indenture);
(viii) upon
written notice or actual knowledge thereof, the notification to the Indenture
Trustee and each Rating Agency of a Servicer Event of Default or a Master
Servicer Event of Default under this Agreement (Section 3.07(d) of the
Indenture);
(ix) upon
written notice or actual knowledge thereof, the delivery of notice to the
Indenture Trustee and each Rating Agency of each Indenture Event of Default
under the Indenture (Section 3.19 of the Indenture);
(x) the
furnishing of the Indenture Trustee with the names and addresses of Holders
of
Notes during any period when the Indenture Trustee is not the Note Registrar
(Section 7.01 of the Indenture);
(xi) causing
the preparation of any financing statements and continuation statements
necessary to protect the Collateral (Section 3.05 of the
Indenture);
(xii) the
preparation (but not the execution) of the annual Officer’s Certificate
regarding the Issuing Entity’s compliance with the terms of the Indenture
(Section 3.09 of the Indenture);
(xiii) the
delivery of notice to the Indenture Trustee and each Rating Agency of each
Indenture Event of Default under the Indenture (Section 3.19);
(xiv) causing
the preparation of an Officer’s Certificate and the obtaining of the Opinion of
Counsel (which shall not be at the expense of the Trust Administrator) with
respect to any request by the Issuing Entity to the Indenture Trustee to
take
any action under the Indenture (Sections 4.01 and 11.01 of the
Indenture);
(xv) the
compliance with any directive of the Indenture Trustee with respect to the
sale
of the Collateral in a commercially reasonable manner if an Indenture Event
of
Default shall have occurred and be continuing under the Indenture (Section
5.04
of the Indenture);
(xvi) causing
the preparation of an Issuing Entity Request and Officer’s Certificate (and
executing the same on behalf of the Issuing Entity) and the obtaining of
an
Opinion of Counsel (which shall not be at the expense of the Trust
Administrator), if necessary, for the release of the Collateral, as defined
in
the Indenture (Section 8.03 of the Indenture);
(xvii) the
mailing to the Noteholders of notices with respect to their consent to any
supplemental indentures (Sections 9.01, 9.02, 9.03 and 9.06 of the Indenture);
and
(xviii) any
other
duties expressly required to be performed by the Trust Administrator under
the
Indenture or the Trust Agreement.
Notwithstanding
the foregoing, the Seller shall undertake the duties of the Issuing Entity
under
the Indenture to cause the preparation of Issuing Entity Orders (and execute
the
same on behalf of the Issuing Entity), and to obtain Opinions of Counsel
with
respect to the execution of
116
supplemental
indentures and, if necessary, to mail to the Noteholders notices with respect
to
their consent to such supplemental indentures (Sections 9.01, 9.02, 9.03
and
9.06 of the Indenture).
(b) The
Issuing Entity will indemnify the Owner Trustee and the Trust Administrator,
and
their respective agents for, and hold them harmless against, any losses,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of
the transactions contemplated by the Trust Agreement, this Agreement or the
Swap
Agreement, including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance
of
any of their powers or duties under the Trust Agreement, the Indenture or
this
Agreement.
(c) Subject
to the penultimate paragraph of this Section 7.01, and in accordance with
the
directions of the Owner Trustee, the Trust Administrator shall perform or
supervise the performance of such other activities in connection with the
Collateral (including the Operative Agreements) as are not covered by any
of the
foregoing provisions and as are expressly requested in writing by the Owner
Trustee and are reasonably within the capability of the Trust
Administrator.
(d) In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Trust Administrator may enter into transactions with or otherwise
deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuing Entity and shall be, in the Trust
Administrator’s opinion, no less favorable to the Issuing Entity than would be
available from unaffiliated parties.
In
carrying out the foregoing duties or any of its other obligations under this
Agreement, the Trust Administrator shall be subject to the same standard
of care
and have the same rights, indemnifications and immunities as the Indenture
Trustee under the Indenture, including, without limitation, the right to
reimbursement and indemnification on behalf of the Issuing Entity from funds
in
the Collection Account for all losses, costs and expenses of any kind or
nature
(including without limitation attorneys’ fees and disbursements) incurred by the
Trust Administrator (including without limitation in its various capacities
as
Paying Agent, Certificate Paying Agent, Certificate Registrar and Note
Registrar) in connection with the performance of its duties hereunder or
under
any other Operative Agreement.
The
Trust
Administrator in its capacity as the Certificate Registrar, and upon a request
received from the Owner Trustee, shall promptly notify the Certificateholders
of
(i) any change in the Corporate Trust Office of the Owner Trustee, (ii) any
amendment to the Trust Agreement requiring notice be given to the
Certificateholders and (iii) any other notice required to be given to the
Certificateholders by the Owner Trustee under the Trust Agreement.
Section
7.02. Duties
of the Trust
Administrator With Respect to the Indenture, the Trust Agreement and this
Agreement.
(a) The
Trust
Administrator shall take all appropriate action that is the duty of the
Indenture Trustee to take with respect to the following matters under the
Indenture, the Trust Agreement and this Agreement:
117
(i) the
duties of an authenticating agent for authentication of the Notes (Sections
2.01, 2.02 and 2.11 of the Indenture);
(ii) the
duties of Note Registrar to be kept (Sections 2.03, 2.04, 2.05 and 2.07 of
the
Indenture);
(iii) to
provide notices and instructions to the Clearing Agency (Section 2.10 of
the
Indenture);
(iv) the
duties of Paying Agent (Sections 3.03, 4.01, 4.02 and 5.02 of the Indenture);
and
(v) the
duties of agent or attorney-in-fact for the purposes of filing financing
and
continuation statements for the Issuing Entity (Section 3.05 of the
Indenture).
(b) The
Issuing Entity will indemnify the Owner Trustee and the Trust Administrator,
and
their respective agents for, and hold them harmless against, any losses,
liability or expense incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of
the transactions contemplated by the Trust Agreement or this Agreement,
including the reasonable costs and expenses of defending themselves against
any
claim or liability in connection with the exercise or performance of any
of
their powers or duties under the Trust Agreement, the Indenture or this
Agreement.
Section
7.03. Records. The
Trust Administrator shall maintain appropriate books of account and records
relating to services performed hereunder, which books of account and records
shall be accessible for inspection by the Issuing Entity and the Depositor
at
any time during normal business hours.
Section
7.04. Compensation. The
Trust Administrator will perform the duties and provide the services called
for
under Section 7.01 and 7.02 above for such compensation as shall be agreed
upon
between the Trust Administrator and the Master Servicer.
Section
7.05. Additional
Information to be
Furnished to the Issuing Entity. The Depositor shall furnish
to the Issuing Entity from time to time such additional information regarding
the Collateral as the Issuing Entity shall reasonably request.
Section
7.06. Independence
of the Trust
Administrator. For all purposes of this Agreement, the Trust
Administrator shall be an independent contractor and shall not be subject
to the
supervision of the Issuing Entity or the Owner Trustee with respect to the
manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuing Entity, the
Trust Administrator shall have no authority to act for or represent the Issuing
Entity or the Owner Trustee in any way and shall not otherwise be deemed
an
agent of the Issuing Entity or the Owner Trustee.
Section
7.07. No
Joint
Venture. Nothing contained in this Agreement (i) shall
constitute the Trust Administrator or the Depositor, respectively, and either
of
the Issuing Entity or the Owner Trustee, as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as
118
such
on
any of them or (iii) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf
of
the others.
Section
7.08. Other
Activities of Trust
Administrator and the Depositor. Nothing herein shall prevent
the Trust Administrator, the Depositor or their respective Affiliates from
engaging in other businesses or, in its sole discretion, from acting in a
similar capacity as an Trust Administrator for any other person or entity
even
though such person or entity may engage in business activities similar to
those
of the Issuing Entity or the Owner Trustee.
Section
7.09. Resignation
and Removal of
Trust Administrator.
(a) Subject
to Section 7.09(d) hereof, the Trust Administrator may resign its duties
hereunder by providing the Issuing Entity with at least 60 days’ prior written
notice.
(b) Subject
to Section 7.09(d) hereof, the Issuing Entity may remove the Trust Administrator
without cause by providing the Trust Administrator with at least 60 days’ prior
written notice.
(c) Subject
to Section 7.09(d) hereof, the Issuing Entity may remove the Trust Administrator
immediately upon written notice of termination from the Issuing Entity to
the
Trust Administrator if any of the following events shall occur:
(i) the
Trust
Administrator shall default in the performance of any of its duties under
this
Agreement and, after notice of such default, shall not cure such default
within
ten days (or, if such default cannot be cured in such time, shall not give
within ten days such assurance of cure as shall be reasonably satisfactory
to
the Issuing Entity); or
(ii) a
court
having jurisdiction in the premises shall (x) enter a decree or order for
relief, which decree or order shall not have been vacated within 60 days,
in
respect of the Trust Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
(y)
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator
or
similar official for the Trust Administrator or any substantial part of its
property, or (z) order the winding-up or liquidation of the Trust
Administrator’s affairs; or
(iii) the
Trust
Administrator shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent
to the
entry of an order for relief in an involuntary case under any such law, or
shall
consent to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official for the Trust Administrator or
any
substantial part of its property, shall consent to the taking of possession
by
any such official of any substantial part of its property, shall make any
general assignment for the benefit of creditors or shall fail generally to
pay
its debts as they become due.
The
Trust
Administrator agrees that if any of the events specified in clauses (ii)
or
(iii) of this Section 7.09(c) shall occur, it shall give written notice thereof
to the Issuing Entity and the Indenture Trustee within seven days after the
occurrence of such event.
119
(d)
No
resignation or removal of the Trust Administrator pursuant to this Section
shall
be effective until (i) a successor Trust Administrator shall have been appointed
by the Issuing Entity in accordance with the Trust Agreement and (ii) such
successor Trust Administrator shall have agreed in writing to be bound by
the
terms of this Agreement in the same manner as the Trust Administrator is
bound
hereunder. If a successor Trust Administrator does not take office within
60
days after the retiring Trust Administrator resigns or is removed, the resigning
or removed Trust Administrator or the Issuing Entity may petition any court
of
competent jurisdiction for the appointment of a successor Trust
Administrator.
(e)
The
appointment of any successor Trust Administrator shall be effective only
after
receipt of a letter from each Rating Agency to the effect that such proposed
appointment will not cause a reduction or withdrawal of the then current
ratings
of the Notes.
(f) Subject
to Sections 7.09(d) and 7.09(e) above, the Trust Administrator acknowledges
that
upon the appointment of a successor Master Servicer pursuant to Section 8.01,
the Trust Administrator shall immediately resign and such successor Master
Servicer shall automatically become the Trust Administrator under this
Agreement. Any such successor Master Servicer shall be required to
agree to assume the duties of the Trust Administrator under the terms and
conditions of this Agreement and the other Operative Agreements in its
acceptance of appointment as successor Master Servicer.
Section
7.10. Action
upon Termination,
Resignation or Removal of the Trust Administrator. Promptly
upon the effective date of termination of this Agreement or the resignation
or
removal of the Trust Administrator pursuant to Section 7.09 hereof, the Trust
Administrator shall be entitled to be paid all reimbursable expenses, including
any reasonable out-of-pocket attorneys’ fees, accruing to it to the date of such
termination, resignation or removal. The Trust Administrator shall
forthwith upon such termination pursuant to Section 7.09 deliver to the
successor Trust Administrator all property and documents of or relating to
the
Collateral then in the custody of the Trust Administrator, or if this Agreement
has been terminated, to the Depositor. In the event of the
resignation or removal of the Trust Administrator pursuant to Section 7.09,
the
Trust Administrator shall cooperate with the Issuing Entity and take all
reasonable steps requested to assist the Issuing Entity in making an orderly
transfer of the duties of the Trust Administrator.
ARTICLE
VIII
Section
8.01. Master
Servicer Events of
Default; Indenture Trustee To Act; Appointment of Successor.
(a)
The
occurrence of any one or more of the following events shall constitute a
“Master
Servicer Event of Default”:
(i) Any
failure by the Master Servicer to furnish to the Trust Administrator the
Mortgage Loan data sufficient to prepare the reports described in Section
5.09(a) which continues unremedied for a period of one (1) Business Day after
the date upon which written
120
notice
of
such failure shall have been given to such Master Servicer by the Indenture
Trustee or the Trust Administrator or to such Master Servicer and the Indenture
Trustee by the Holders of not less than 25% of the Class Principal
Amount of each Class of Notes affected thereby; or
(ii) Any
failure on the part of the Master Servicer duly to observe or perform in
any
material respect any other of the covenants or agreements on the part of
the
Master Servicer contained in this Agreement which continues unremedied for
a
period of 30 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Indenture Trustee or the Trust Administrator or to the Master Servicer
and the Indenture Trustee by the Majority Noteholders; or
(iii) A
decree
or order of a court or agency or supervisory authority having jurisdiction
for
the appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have
been entered against the Master Servicer, and such decree or order shall
have
remained in force undischarged or unstayed for a period of 60 days or any
Rating
Agency reduces or withdraws or threatens to reduce or withdraw the rating
of the
Notes because of the financial condition or loan servicing capability of
such
Master Servicer; or
(iv) The
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities, voluntary liquidation or similar proceedings of or relating
to the
Master Servicer or of or relating to all or substantially all of its property;
or
(v) The
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors or voluntarily suspend payment of its obligations; or
(vi) The
Master Servicer shall be dissolved, or shall dispose of all or substantially
all
of its assets, or consolidate with or merge into another entity or shall
permit
another entity to consolidate or merge into it, such that the resulting entity
does not meet the criteria for a successor servicer as specified in Section
5.26
hereof; or
(vii) If
a
representation or warranty set forth in Section 5.01 hereof shall prove to
be
incorrect as of the time made in any respect that materially and adversely
affects the interests of the Noteholders, and the circumstance or condition
in
respect of which such representation or warranty was incorrect shall not
have
been eliminated or cured within 30 days after the date on which written notice
of such incorrect representation or warranty shall have been given to the
Master
Servicer by the Indenture Trustee or the Trust Administrator, or to the Master
Servicer and the Indenture Trustee by the Majority Noteholders; or
(viii) A
sale or
pledge of any of the rights of the Master Servicer hereunder or an assignment
of
this Agreement by the Master Servicer or a delegation of the rights or duties
of
the Master Servicer hereunder shall have occurred in any manner not otherwise
permitted
121
hereunder
and without the prior written consent of the Indenture Trustee and the Majority
Noteholders; or
(ix) The
Master Servicer has notice or actual knowledge that the Servicer at any time
is
not either an FNMA- or FHLMC- approved Seller/Servicer, and the Master Servicer
has not terminated the rights and obligations of such Servicer under this
Agreement and replaced the Servicer with an FNMA- or FHLMC-approved servicer
within 60 days of the date the Master Servicer receives such notice or acquires
such actual knowledge; or
(x) Any
failure of the Master Servicer to remit to the Trust Administrator any Advance
required to be made to the Trust Administrator for the benefit of Noteholders
under the terms of this Agreement, which failure continues unremedied as
of the
close of business on the Business Day prior to a Payment Date.
If
a
Master Servicer Event of Default described in clauses (i) through (ix) of
this
Section 8.01 shall occur, then, in each and every case, subject to applicable
law, so long as any such Master Servicer Event of Default shall not have
been
remedied within any period of time prescribed by this Section 8.01, the
Indenture Trustee, by notice in writing to the Master Servicer may, and shall,
if so directed by the Majority Noteholders, terminate all of the rights and
obligations of the Master Servicer hereunder and in and to the Mortgage Loans
and the proceeds thereof. If a Master Servicer Event of Default
described in clause (x) of this Section 8.01 shall occur, then, in each and
every case, subject to applicable law, so long as such Master Servicer Event
of
Default shall not have been remedied within the time period prescribed by
clause
(x) of this Section 8.01, the Indenture Trustee, by notice in writing to
the
Master Servicer, shall promptly terminate all of the rights and obligations
of
the Master Servicer hereunder and in and to the Mortgage Loans and the proceeds
thereof. On or after the receipt by the Master Servicer of such
written notice, all authority and power of the Master Servicer, and only
in its
capacity as Master Servicer under this Agreement, whether with respect to
the
Mortgage Loans or otherwise, shall pass to and be vested in the Indenture
Trustee pursuant to and under the terms of this Agreement; and the Indenture
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the defaulting Master Servicer as attorney-in-fact or otherwise, any and
all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents or otherwise. The defaulting
Master Servicer agrees to cooperate with the Indenture Trustee in effecting
the
termination of the defaulting Master Servicer’s responsibilities and rights
hereunder as Master Servicer including, without limitation, notifying the
Servicers of the assignment of the master servicing function and providing
the
Indenture Trustee or its designee all documents and records in electronic
or
other form reasonably requested by it to enable the Indenture Trustee or
its
designee to assume the defaulting Master Servicer’s functions hereunder and the
transfer to the Indenture Trustee for administration by it of all amounts
which
shall at the time be or should have been deposited by the defaulting Master
Servicer in the Collection Account maintained by such defaulting Master Servicer
and any other account or fund maintained with respect to the Notes or thereafter
received with respect to the Mortgage Loans. The Master Servicer
being terminated shall bear all reasonable out-of-pocket costs of a master
servicing transfer, including but not limited to those of the Indenture Trustee,
legal fees and expenses, accounting and financial consulting fees and expenses,
and costs of amending the Agreement, if necessary.
122
The
Indenture Trustee shall be entitled to be reimbursed from the Master Servicer
(or by the Trust Estate, if the Master Servicer is unable to fulfill its
obligations hereunder) for all costs associated with the transfer of servicing
from the predecessor Master Servicer, including, without limitation, any
costs
or expenses associated with the complete transfer of all servicing data and
the
completion, correction or manipulation of such servicing data as may be required
by the Indenture Trustee to correct any errors or insufficiencies in the
servicing data or otherwise to enable the Indenture Trustee to master service
the Mortgage Loans properly and effectively. If the terminated Master
Servicer does not pay such reimbursement within thirty (30) days of its receipt
of an invoice therefore, such reimbursement shall be an expense of the Trust
Estate and the Indenture Trustee shall be entitled to withdraw such
reimbursement from amounts on deposit in the Collection Account pursuant
to
Section 5.07(c); provided that
the terminated
Master Servicer shall reimburse the Trust Estate for any
such expense incurred by the Trust Estate; and provided, further, that the
Indenture Trustee shall decide whether and to what extent it is in the best
interest of the Noteholders to pursue any remedy against any party obligated
to
make such reimbursement.
Notwithstanding
the termination of its activities as Master Servicer, each terminated Master
Servicer shall continue to be entitled to reimbursement to the extent provided
in Section 5.08 to the extent such reimbursement relates to the period prior
to
such Master Servicer’s termination.
If
any
Master Servicer Event of Default shall occur, of which a Responsible Officer
of
the Indenture Trustee has actual knowledge, the Indenture Trustee shall promptly
notify each Rating Agency of the nature and extent of such Master Servicer
Event
of Default. The Trust Administrator or the Master Servicer shall
immediately give written notice to the Indenture Trustee upon the Master
Servicer’s failure to remit Advances on the date specified herein.
(b) On
and
after the time the Master Servicer receives a notice of termination from
the
Indenture Trustee pursuant to Section 8.01(a) or the Indenture Trustee receives
the resignation of the Master Servicer evidenced by an Opinion of Counsel
pursuant to Section 5.27, the Indenture Trustee, unless another master servicer
shall have been appointed, shall be the successor in all respects to the
Master
Servicer in its capacity as such under this Agreement and the transactions
set
forth or provided for herein and shall have all the rights and powers and
be
subject to all the responsibilities, duties and liabilities relating thereto
and
arising thereafter placed on the Master Servicer hereunder, including the
obligation to make Advances; provided, however, that any
failure to perform such duties or responsibilities caused by the Master
Servicer’s failure to provide information required by this Agreement shall not
be considered a default by the Indenture Trustee hereunder. In
addition, the Indenture Trustee shall have no responsibility for any act
or
omission of the Master Servicer prior to the issuance of any notice of
termination and shall have no liability relating to the representations and
warranties of the Master Servicer set forth in Section 5.01. In the
Indenture Trustee’s capacity as such successor, the Indenture Trustee shall have
the same limitations on liability herein granted to the Master
Servicer. As compensation therefor, the Indenture Trustee shall be
entitled to receive all compensation payable to the Master Servicer under
this
Agreement.
(c) Notwithstanding
the above, the Indenture Trustee may, if it shall be unwilling to continue
to so
act, or shall, if it is unable to so act, appoint, or petition a court of
competent
123
jurisdiction
to appoint, any established housing and home finance institution servicer,
master servicer, servicing or mortgage servicing institution having a net
worth
of not less than $15,000,000 and meeting such other standards for a successor
master servicer as are set forth in this Agreement, as the successor to such
Master Servicer in the assumption of all of the responsibilities, duties
or
liabilities of a master servicer, like the Master Servicer. Such
successor Master Servicer may be an Affiliate of the Indenture Trustee; provided, however, that,
unless such Affiliate meets the net worth requirements and other standards
set
forth herein for a successor master servicer, the Indenture Trustee, in its
individual capacity shall agree, at the time of such designation, to be and
remain liable to the Issuing Entity and the Indenture Trustee for such
Affiliate’s actions and omissions in performing its duties
hereunder. 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 no such compensation
shall be in excess of that permitted to the
Master Servicer hereunder. The Indenture Trustee and such successor
shall take such actions, consistent with this Agreement, as shall be necessary
to effectuate any such succession and may make other arrangements with respect
to the servicing to be conducted hereunder which are not inconsistent
herewith. The Master Servicer shall cooperate with the Indenture
Trustee and any successor master servicer in effecting the termination of
the
Master Servicer’s responsibilities and rights hereunder including, without
limitation, notifying Servicers of the assignment of the master servicing
functions and providing the Indenture Trustee and successor master servicer,
as
applicable, all documents and records in electronic or other form reasonably
requested by it to enable it to assume the Master Servicer’s functions hereunder
and the transfer to the Indenture Trustee or such successor master servicer,
as
applicable, all amounts or investment property which shall at the time be
or
should have been deposited by the Master Servicer in the Collection Account
and
any other account or fund maintained with respect to the Notes or thereafter
be
received with respect to the Mortgage Loans. 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 payment
hereunder or any portion thereof caused by (i) the failure of the Master
Servicer to deliver, or any delay in delivering, cash, documents or records
to
it, (ii) the failure of the Master Servicer to cooperate as required by this
Agreement, (iii) the failure of the Master Servicer to deliver the Mortgage
Loan
data to the Indenture Trustee as required by this Agreement or (iv) restrictions
imposed by any regulatory authority having jurisdiction over the Master
Servicer.
Section
8.02. Additional
Remedies of
Indenture Trustee Upon Event of Default. During the
continuance of any Master Servicer Event of Default, so long as such Master
Servicer Event of Default shall not have been remedied, the Indenture Trustee,
in addition to the rights specified in Section 8.01, shall have the right,
in
its own name and as trustee of an express trust, to take all actions now
or
hereafter existing at law, in equity or by statute to enforce its rights
and
remedies and to protect the interests, and enforce the rights and remedies,
of
the Noteholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and
debt
in connection therewith). Except as otherwise expressly provided in
this Agreement, no remedy provided for by this Agreement shall be exclusive
of
any other remedy, and each and every remedy shall be cumulative and in addition
to any other remedy, and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of
any
Event of Default.
124
Section
8.03. Waiver
of
Defaults. The Majority Noteholders may, on behalf of all
Noteholders, waive any default or Master Servicer Event of Default by the
Master
Servicer in the performance of its obligations hereunder, except that a default
in the making of any required deposit to the Collection Account that would
result in a failure of the Indenture Trustee to make any required payment
of
principal of or interest on the Notes may only be waived with the consent
of
100% of the affected Noteholders. Upon any such waiver of a past
default, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly
so
waived.
Section
8.04. Notification
to
Holders. Upon termination of the Master Servicer or
appointment of a successor to the Master Servicer, in each case as provided
herein, the Indenture Trustee shall promptly mail notice thereof by first
class
mail to the Noteholders at their respective addresses appearing on the
applicable Register. The Indenture Trustee shall also, within 45 days
after the occurrence of any Master Servicer Event of Default known to the
Indenture Trustee, give written notice thereof to Noteholders, unless such
Event
of Default shall have been cured or waived prior to the issuance of such
notice
and within such 45-day period.
Section
8.05. Directions
by Noteholders
and Duties of Indenture Trustee During Master Servicer Event of
Default. During the continuance of any Master Servicer Event
of Default, the Majority Noteholders may direct the time, method and place
of
conducting any proceeding for any remedy available to the Indenture Trustee,
or
exercising any trust or power conferred upon the Indenture Trustee, under
this
Agreement; provided, however,
that the Indenture
Trustee shall be under no obligation to pursue any
such remedy, or to exercise any of the trusts or powers vested in it by this
Agreement (including, without limitation, (i) the conducting or defending
of any
administrative action or litigation hereunder or in relation hereto and (ii)
the
terminating of the Master Servicer or any successor master servicer from
its
rights and duties as master servicer hereunder) at the request, order or
direction of any of the Noteholders, unless such Noteholders shall have offered
to the Indenture Trustee reasonable security or indemnity against the cost,
expenses and liabilities which may be incurred therein or thereby; and, provided further, that, the
Indenture Trustee shall have the right to decline to follow any such direction
if the Indenture Trustee, in accordance with an Opinion of Counsel, determines
that the action or proceeding so directed may not lawfully be taken or if
the
Indenture Trustee in good faith determines that the action or proceeding
so
directed would involve it in personal liability for which it is not indemnified
to its satisfaction or be unjustly prejudicial to the non-assenting
Noteholders.
Section
8.06. Action
Upon Certain Failures
of the Master Servicer and Upon Master Servicer Event of
Default. In the event that a Responsible Officer of the
Indenture Trustee or the Trust Administrator shall have actual knowledge
of any
action or inaction of the Master Servicer that would become a Master Servicer
Event of Default upon the Master Servicer’s failure to remedy the same after
notice, the Indenture Trustee or Trust Administrator, as applicable, shall
give
notice thereof to the Master Servicer.
125
Section
8.07. Preparation
of
Reports.
(a) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K.
(b) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Trust Administrator shall prepare and file on behalf of
the
Trust any Form 10-D required by the Exchange Act, in form and substance as
required by the Exchange Act. The Trust Administrator shall file each
Form 10-D with a copy of the related Monthly Statement attached
thereto. Any necessary disclosure in addition to the Monthly
Statement that is required to be included on Form 10-D (“Additional Form
10-D
Disclosure”) shall, pursuant to the paragraph immediately below, be
reported by the parties set forth on Exhibit M-1 and directed and approved
by
the Depositor, and the Trust Administrator will have no duty or liability
for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure absent such reporting, direction and approval.
(ii) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
within 5 calendar days after the related Distribution Date, (i) the parties
to
this SunTrust [ ] Trust, Series 200[ ]-[__]
transaction listed on Exhibit M-1 hereto shall be required to provide to
the
Trust Administrator and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Trust Administrator and the Depositor and such party,
the
form and substance of the Additional Form 10-D Disclosure described on Exhibit
M-1 applicable to such party, (ii) include with such Additional Form 10-D
Disclosure, an Additional Disclosure Notification in the form attached hereto
as
Exhibit M-4 and (iii) 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 Trust Administrator has no duty under
this Agreement to monitor or enforce the performance by the parties listed
on
Exhibit M-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 assessed or incurred by the Trust Administrator in connection
with including any Additional Form 10-D Disclosure on Form 10-D pursuant
to this
paragraph.
(iii) After
preparing the Form 10-D, the Trust Administrator shall forward electronically
a
draft copy of the Form 10-D to the Depositor for review. If a Form
10-D cannot be filed on time or if a previously filed Form 10-D needs to
be
amended, the Trust Administrator will follow the procedures set forth in
Section
8.07(e). Promptly (but no later than 1 Business Day) after filing
with the Commission, the Trust Administrator will make available on its internet
website a final executed copy of each Form 10-D. The parties to this
Agreement acknowledge that the performance by the Trust Administrator of
its
duties under this Section 8.07 related to the timely preparation and filing
of
Form 10-D is contingent upon such parties strictly observing all applicable
deadlines in the performance of their duties under this Section
8.07. The Trust Administrator shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare and/or timely file such Form 10-D, where such failure results from
the
Trust Administrator’s inability or failure to receive, on a
126
timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 10-D, not resulting from its own negligence,
bad
faith or willful misconduct.
(c) Reports
Filed on Form 10-K.
(i) Within
90
days after the end of each fiscal year of the Trust 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 Trust ends
on December 31st of each year), commencing in March 200[ ], the Trust
Administrator shall prepare and file on behalf of the Trust a Form 10-K,
in form
and substance as required by the Exchange Act. Each such Form 10-K
shall include the following items, in each case to the extent they have been
delivered to the Trust Administrator within the applicable time frames set
forth
in this Agreement, the following items:
(A) an
annual
compliance statement for the Servicer, each Additional Servicer and the
Indenture Trustee, as described under Section 5.24;
(B) (1)
the
annual reports on assessment of compliance with servicing criteria for the
Servicer, each Additional Servicer and the Indenture Trustee, and any Servicing
Function Participant engaged by such parties, as described under Section
5.25(a), and (2) if the Servicer’s, each Additional Servicer’s or the Indenture
Trustee’s, or any such Servicing Function Participant’s, report on assessment of
compliance with servicing criteria described under Section 5.25(a) identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if the Servicer’s, each Additional Servicer’s, the Indenture
Trustee’s or any such Servicing Function Participant’s report on assessment of
compliance with servicing criteria described under Section 5.25(a) 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;
(C) (1)
the
registered public accounting firm attestation report for the Servicer, each
Additional Servicer and the Indenture Trustee, and any Servicing Function
Participant engaged by such parties, as described under Section 5.25(c),
and (2)
if any registered public accounting firm attestation report described under
Section 5.25(c) 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
(D) a
Xxxxxxxx-Xxxxx Certification (“Xxxxxxxx-Xxxxx
Certification”) as described in Section 8.07(c)(v).
(ii) 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, pursuant to the paragraph immediately below, be
reported by the parties set forth on Exhibit M-2 and directed and approved
by
the Depositor, and the Trust Administrator will have no duty or liability
for
any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure absent such reporting, direction and approval.
127
(iii) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
no later than March 10 (with a 5 calendar day cure period), commencing in
March
200[ ] (i) the parties to this SunTrust [ ]
Trust, Series 200[ ]-[_] transaction listed on Exhibit M-2 hereto shall be
required to provide to the Trust Administrator and the Depositor, to the
extent
known by a responsible officer thereof, in XXXXX-compatible form, or in such
other form as otherwise agreed upon by the Trust Administrator and the Depositor
and such party, the form and substance of the Additional Form 10-K Disclosure
described on Exhibit M-2 applicable to such party, (ii) include with such
Additional Form 10-K Disclosure, an Additional Disclosure Notification in
the
form attached hereto as Exhibit M-4, and (iii) 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 on Form 10-K. The Trust Administrator
has no duty under this Agreement to monitor or enforce the performance by
the
parties listed on Exhibit M-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 assessed or incurred by the Trust Administrator
in
connection with including any Additional Form 10-K Disclosure on Form 10-K
pursuant to this paragraph.
(iv) After
preparing the Form 10-K, the Trust Administrator shall forward electronically
a
draft copy of the Form 10-K to the Depositor for review. If a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to
be
amended, the Trust Administrator will follow the procedures set forth in
Section
8.07(c). Promptly (but no later than 1 Business Day) after filing
with the Commission, the Trust Administrator will make available on its internet
website a final executed copy of each Form 10-K. The parties to this
Agreement acknowledge that the performance by the Trust Administrator of
its
duties under this Section 8.07(c) related to the timely preparation and filing
of Form 10-K is contingent upon such parties (and any Additional Servicer
or
Servicing Function Participant) strictly observing all applicable deadlines
in
the performance of their duties under this Section 8.07(c), Section 8.07(c)(v),
Section 5.24, Section 5.25(a) and Section 5.25(c). The Trust
Administrator shall have no liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare and/or
timely
file such Form 10-K, where such failure results from the Trust Administrator’s
inability or failure to receive, on a timely basis, any information from
any
other party hereto needed to prepare, arrange for execution or file such
Form
10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(v) Each
Form
10-K shall include a certification (the “Xxxxxxxx-Xxxxx
Certification”), exactly as set forth in Exhibit [_] attached hereto,
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx
Act. The Servicer, any Additional Servicer and the Indenture Trustee
shall provide, and each such party shall cause any Servicing Function
Participant engaged by it to provide, to the Person who signs the Xxxxxxxx-Xxxxx
Certification (the “Certifying Person”),
by March [ ] of each year in which the Trust is subject to the
reporting requirements of the Exchange Act and otherwise within a reasonable
period of time upon request, a certification (each, a “Back-Up
Certification”), in the form attached hereto as Exhibit [_], 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, “Certification
Parties”) can reasonably rely. The senior officer of the
Depositor in charge of securitization shall serve as the Certifying Person
on
behalf of the Trust. In the event the Servicer, any Additional
Servicer and the Indenture Trustee, or any Servicing Function
128
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 Certifying Person pursuant
to
this Section 8.07(c) with respect to the period of time it was subject to
this
Agreement or any other applicable agreement, as the case may be.
(d) Reports
Filed on Form 8-K.
(i) 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 and to the extent it receives the Form
8-K
Disclosure Information described below, the Trust Administrator shall prepare
and file on behalf of the Trust any Form 8-K, as required by the Exchange
Act,
provided that
the Depositor shall file the initial Form 8-Ks in connection with the issuance
of the Certificates. Any disclosure or information related to a
Reportable Event or that is otherwise required to be included on Form 8-K
(“Form 8-K Disclosure
Information”) shall, pursuant to the paragraph immediately below, be
reported by the parties set forth on Exhibit M-3 and directed and approved
by
the Depositor, and the Trust Administrator will have no duty or liability
for
any failure hereunder to determine or prepare any Form 8-K Disclosure
Information absent such reporting, direction and approval.
(ii) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
no later than Noon (New York City time) on the 2nd Business Day after the
occurrence of a Reportable Event (A) the parties to this SunTrust
[ ] Trust, Series 200[ ][__] transaction on
Exhibit M-3 hereto shall be required to provide to the Trust Administrator
and
the Depositor, to the extent known by a responsible officer thereof, in
XXXXX-compatible form, or in such other form as otherwise agreed upon by
the
Trust Administrator and the Depositor and such party, the form and substance
of
the Form 8-K Disclosure Information described on Exhibit M-3 applicable to
such
party, (B) include with such Additional Form 8-K Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit M-4, and (C)
the
Depositor will 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 Trust Administrator has no duty under this Agreement to
monitor or enforce the performance by the parties listed on Exhibit M-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
Trust Administrator in connection with including any Form 8-K Disclosure
Information on Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Trust Administrator shall forward, no later than
Noon (New York City time) on the third Business Day after the Reportable
Event,
electronically a draft copy of the Form 8-K to the Depositor for
review. If a Form 8-K cannot be filed on time or if a previously
filed Form 8-K needs to be amended, the Trust Administrator will follow the
procedures set forth in Section 8.07(e)(ii). Promptly (but no later
than 1 Business Day) after filing with the Commission, the Trust Administrator
will make available on its internet website a final executed copy of each
Form
8-K. The parties to this Agreement acknowledge that the performance
by the Trust Administrator of its duties under this Section 8.07(d) related
to
the timely preparation and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section
129
8.07(d). The
Trust Administrator shall have no liability for any loss, expense, damage,
claim
arising out of or with respect to any failure to properly prepare and/or
timely
file such Form 8-K, where such failure results from the Trust Administrator’s
inability or failure to receive, on a timely basis, any information from
any
other party hereto needed to prepare, arrange for execution or file such
Form
8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(e) Delisting;
Amendments; Late Filings.
(i) On
or
prior to January 30 of the first year in which the Trust Administrator is
able
to do so under applicable law, the Trust Administrator shall propose and
file a
Form 15 Suspension Notification relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act.
(ii) In
the
event that the Trust 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 Trust Administrator will promptly
notify the Depositor of such inability to make a timely filing with the
Commission. In the case of Form 10-D and 10-K, the Depositor,
Servicer and the Trust Administrator will cooperate to prepare and file a
Form
12b-25 and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of
the
Exchange Act. In the case of Form 8-K, the Trust 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
the next succeeding Form 10-D to be filed for the Trust. In the event
that any previously filed Form 8-K, 10-D or 10-K needs to be amended, the
Trust
Administrator will notify the Depositor and the Servicer and such parties
agree
to 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 a senior officer of the Depositor in charge of securitization. The
Depositor and Servicer acknowledge that the performance by the Trust
Administrator of its duties under this Section 8.07(e) related to the timely
preparation and filing of Form 15, a Form 12b-25 or any amendment to Form
8-K,
10-D or 10-K is contingent upon the Servicer and the Depositor performing
their
duties under this Section. The Trust Administrator shall have no
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare 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 Trust Administrator’s inability or failure to receive, on a timely basis,
any information from any other party hereto 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, not resulting from its own negligence, bad faith or willful
misconduct.
ARTICLE
IX
Section
9.01. Termination. The
respective obligations and responsibilities of the Master Servicer, the Trust
Administrator, the Depositor, the Issuing Entity, the Servicer, and the
Indenture Trustee created hereby (other than obligations expressly stated
to
survive the
130
termination
of the Trust) shall terminate on the day after the day on which the Notes
are
paid in full (including payment pursuant to Section 9.02 below) (the
“Termination Date”).
Section
9.02. Termination
Prior to
Maturity Date; and Optional Redemption. On any Payment Date on
which the Aggregate Collateral Balance at the beginning of the Due Period
related to that Payment Date is less than 1% of the sum of the Aggregate
Collateral Balance as of the Closing Date, the Servicer acting directly or
through one or more Affiliates, shall have the option to purchase the Mortgage
Loans, any REO Property and any other property remaining in the Trust for
a
price equal to the Redemption Price. The Master Servicer and the
Servicer will be reimbursed from the Redemption Price for any outstanding
Advances, Servicing Advances and unpaid Servicing Administration Fees and
other
amounts not previously reimbursed pursuant to the provisions of this Agreement,
as applicable, and the Trust Administrator, the Owner Trustee and the Indenture
Trustee shall be reimbursed for any previously unreimbursed amounts for which
they are entitled to be reimbursed pursuant to this Agreement, the Indenture
or
the Trust Agreement, as applicable. If such option is exercised, the
Trust will be terminated resulting in a mandatory redemption of the
Notes. The Servicer shall deliver written notice of its intention to
exercise such option to the Issuing Entity, the Trust Administrator, the
Indenture Trustee and the Master Servicer not less than 15 days prior to
the
applicable Payment Date. If the Servicer fails to exercise such
option prior to the Stepup Date, the Interest Rate for each Class of Notes
will
be increased as set forth in the table in the Preliminary Statement herein
beginning on the Stepup Date and for each Payment Date
thereafter. The Servicer shall deliver written notice of its
intention to exercise such option to the Issuing Entity, the Indenture Trustee
and the Master Servicer not less than ten days prior to the applicable Payment
Date.
In
connection with such purchase, the Servicer shall remit to the Trust
Administrator all amounts then on deposit in the Custodial Account in respect
of
the related Total Remittance Amount for deposit to the Collection Account,
which
deposit shall be deemed to have occurred immediately preceding such
purchase.
Promptly
following any such purchase pursuant to paragraph (a) of this Section, the
Indenture Trustee or the applicable Custodian shall release the Mortgage
Files
to the purchaser of such Mortgage Loans pursuant to this Section 10.02, or
otherwise upon its order.
Section
9.03. Certain
Notices upon Final
Payment. The Master Servicer or the Trust Administrator, as
applicable, shall give the Issuing Entity, the Indenture Trustee, the Owner
Trustee, each Rating Agency, each Noteholder and the Depositor at least 30
days’
prior written notice of the date on which the Trust is expected to terminate
in
accordance with Section 9.01, or the date on which the Notes will be redeemed
in
accordance with Section 9.02. Not later than the fifth Business Day
in the Due Period in which the final payment in respect to the Notes is payable
to the Noteholders, the Indenture Trustee shall mail to the Noteholders a
notice
specifying the procedures with respect to such final payment. The
Trust Administrator on behalf of the Indenture Trustee shall give a copy
of such
notice to each Rating Agency at the time such notice is given to
Noteholders. Following the final payment thereon, such Notes shall
become void, no longer outstanding and no longer evidence any right or interest
in the Mortgage Loans, the Mortgage Files or any proceeds of the
foregoing.
131
Section
9.04. Beneficiaries. This
Agreement will inure to the benefit of and be binding upon the parties hereto,
the Noteholders, and their respective successors and permitted
assigns. No other Person will have any right or obligation hereunder.
Notwithstanding anything to the contrary herein, the Swap Counterparty is
an
express third party beneficiary of this Agreement.
ARTICLE
X
Section
10.01. Binding
Nature of Agreement;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
Section
10.02. Entire
Agreement. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage
of the
trade inconsistent with any of the terms hereof.
Section
10.03. Amendment.
(a) This
Agreement may be amended from time to time by the parties hereto and the
Holder
of the Ownership Certificate and with the prior written consent of the Swap
Counterparty (but only to the extent such amendment materially adversely
affects
the amounts, priority or timing of payments under the Swap Agreement and
for so
long as the Swap Agreement is in effect), without notice to or the consent
of
any of the Holders of the Notes, (i) to cure any ambiguity, (ii) to cause
the
provisions herein to conform to or be consistent with or in furtherance of
the
statements made with respect to the Notes, the Trust or this Agreement in
any
Offering Document, or to correct or supplement any provision herein which
may be
inconsistent with any other provisions herein or in any other Operative
Agreement, to make any other provisions with respect to matters or questions
arising under this Agreement, (iii) to make any other provision with respect
to
matters or questions arising under this Agreement or (iv) to add, delete,
or
amend any provisions to the extent necessary or desirable to comply with
any
requirements imposed by the Code or ERISA and applicable
regulations. No such amendment effected pursuant to the preceding
sentence shall, as evidenced by an Opinion of Counsel (which shall be an
expense
of the party requesting such amendment and shall not be an expense of the
Trust), adversely affect the status of the Notes as debt for federal income
tax
purposes or result in an entity level tax on the Trust nor shall such amendment
effected pursuant to clause (iii) of such sentence adversely affect in any
material respect the interests of any Holder, nor shall such amendment be
with
respect to Section 6.02 or the definitions of “Interest Funds,” “Principal
Funds” or “Monthly Excess Cashflow” without the prior written consent of the
Swap Counterparty; provided,
however, that all outstanding payments under the Swap Agreement have been
made. Prior to entering into any amendment without the consent of
Holders pursuant to this paragraph, the Indenture Trustee may require an
Opinion
of Counsel (at the expense of the party requesting such amendment) to the
effect
that such amendment is permitted under this paragraph. Any such
amendment shall be deemed not to adversely affect in any material
respect
132
any
Holder, if the Indenture Trustee receives written confirmation from each
Rating
Agency that such amendment will not cause such Rating Agency to reduce the
then
current rating assigned to the Notes.
(b) This
Agreement may also be amended from time to time by the parties hereto and
with
the prior written consent of the Swap Counterparty (but only to the extent
such
amendment materially adversely affects the amounts, priority or timing of
payments under the Swap Agreement and for so long as the Swap Agreement is
in
effect), with the consent of the Noteholders representing 662/3%
Voting Interests for the purpose of adding any provisions to or changing
in any
manner or eliminating any of the provisions of this Agreement or of modifying
in
any manner the rights of the Holders; provided, however,
that
no such
amendment may (i) reduce in any manner the amount of, or delay the timing
of,
payments which are required to be paid on any Class of Notes or under the
Swap
Agreement, without the consent of the Noteholders of such Class or the Swap
Counterparty, respectively, or (ii) reduce the aforesaid percentages of Class
Principal Amount of Notes, the Holders of which are required to consent to
any
such amendment without the consent of the Holders of 100% of the Class Principal
Amount of the Notes. For purposes of this paragraph, references to
“Holder” or “Holders” shall be deemed to include, in the case of Book-Entry
Notes, the related Note Owners; provided further, however,
that no such amendment may be made with respect to Section 6.02(b)
or (c)
or the definition of “Interest Funds” without the prior written consent of the
Swap Counterparty but only for so long as the Swap Agreement is in
effect.
(c) Promptly
after the execution of any such amendment, the Indenture Trustee shall furnish
written notification of the substance of such amendment to each Holder, the
Depositor and to each Rating Agency.
(d) It
shall
not be necessary for the consent of Holders under this Section 10.03 to approve
the particular form of any proposed amendment, but it shall be sufficient
if
such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of the execution
thereof by Holders shall be subject to such reasonable regulations as the
Indenture Trustee may prescribe.
Section
10.04. Acts
of
Noteholders. Except as otherwise specifically provided herein,
whenever Noteholder action, consent or approval is required under this
Agreement, such action, consent or approval shall be deemed to have been
taken
or given on behalf of, and shall be binding upon, all Noteholders if the
Majority Noteholders agree to take such action or give such consent or
approval.
Section
10.05. Recordation
of
Agreement. To the extent permitted by applicable law, this
Agreement, or a memorandum thereof if permitted under applicable law, is
subject
to recordation in all appropriate public offices for real property records
in
all of the counties or other comparable jurisdictions in which any or all
of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by
the
Depositor on direction and at the expense of Holders of not less than 66-2/3%
of
the Note Principal Balance of the Notes and of the Holder of the Ownership
Certificate requesting such recordation, but only when accompanied by an
Opinion
of Counsel to the effect
133
that
such
recordation materially and beneficially affects the interests of the
Noteholders, or is necessary for the administration or servicing of the Mortgage
Loans.
Section
10.06. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK
(OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH
SHALL
APPLY HERETO).
Section
10.07. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if mailed by overnight courier, addressed
as
follows or delivered by facsimile (or such other address as may hereafter
be
furnished to the other party by like notice):
(i) if
to the
Seller and Servicer:
SunTrust
Mortgage,
Inc.,
000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx
00000
Attention:
[ ]
with
a
copy to:
SunTrust
Mortgage,
Inc.,
000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx
00000
Attention:
General
Counsel
(ii) if
to the
Master Servicer:
[__________________________]
[__________________________]
[__________________________]
Telephone: [________________]
Facsimile: [________________]
(iii) if
to the
Trust Administrator:
[__________________________]
[__________________________]
[__________________________]
Telephone: [________________]
Facsimile: [________________]
134
(iv) if
to the
Indenture Trustee:
[__________________________]
[__________________________]
[__________________________]
(v) if
to the
Depositor:
[__________________________]
[__________________________]
[__________________________]
(vi) if
to the
Issuing Entity:
SunTrust
[ ] Trust, Series 200[ ]-[__]
c/o [__________________________]
[__________________________]
[__________________________]
(vii) if
to the
Swap Counterparty:
[__________________________]
[__________________________]
[__________________________]
All
demands, notices and communications to a party hereunder shall be in writing
and
shall be deemed to have been duly given when delivered to such party at the
relevant address, facsimile number or electronic mail address set forth above
or
at such other address, facsimile number or electronic mail address as such
party
may designate from time to time by written notice in accordance with this
Section 10.07.
Section
10.08. Severability
of
Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever
held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
this
Agreement and shall in no way affect the validity or enforceability of the
other
provisions of this Agreement or of the Notes or the rights of the Holders
thereof.
Section
10.09. Indulgences;
No
Waivers. Neither the failure nor any delay on the part of a
party to exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any right, remedy, power or privilege preclude any other or further exercise
of
the same or of any other right, remedy, power or privilege, nor shall any
waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect
to
any
135
other
occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
Section
10.10. Headings
Not To Affect
Interpretation. The headings contained in this Agreement are
for convenience of reference only, and they shall not be used in the
interpretation hereof.
Section
10.11. Benefits
of
Agreement. Nothing in this Agreement or in the Notes, express
or implied, shall give to any Person, other than the parties to this Agreement
and their successors hereunder and the Holders of the Notes, any benefit
or any
legal or equitable right, power, remedy or claim under this
Agreement. Notwithstanding the foregoing, the Owner Trustee and the
Swap Counterparty shall each be an express third-party beneficiary of this
Agreement.
Section
10.12. Special
Notices to the
Rating Agencies.
(a) The
Seller shall give prompt notice to each Rating Agency and the Swap Counterparty
of the occurrence of any of the following events of which it has
notice:
(i) any
amendment to this Agreement pursuant to Section 10.03; and
(ii) the
making of a final payment hereunder.
(b) All
notices to the Rating Agencies provided for by this Section shall be in writing
and sent by first class mail, telecopy or overnight courier, as
follows:
if
to
Fitch:
Fitch
Ratings
Xxx
Xxxxx Xxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax
no.: (000) 000-0000
if
to
Moody’s:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
no.: (000) 000-0000
if
to
S&P:
Standard
& Poor’s Ratings Services, a division
of
The
XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax
no.: (000) 000-0000
136
(c) The
Trust
Administrator shall make available to the Rating Agencies each report prepared
pursuant to Section 5.09.
Section
10.13. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one
and the
same instrument.
Section
10.14. Execution
by the Issuing
Entity. It is expressly understood and agreed by the parties
hereto that (a) this Agreement is executed and delivered by
[______________________], not individually or personally but solely as Owner
Trustee of the Issuing Entity, in the exercise of the powers and authority
conferred and vested in it as trustee, (b) 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 [______________________] but is made and intended for the purpose of binding
only the Issuing Entity, (c) nothing herein contained shall be construed
as
creating any liability on [______________________], individually or personally,
to perform any covenant either expressed or implied contained herein, all
such
liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under the parties hereto and (d) under no
circumstances shall [______________________] 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 any other
document.
137
SUNTRUST
[ ] TRUST, SERIES 200[ ]-[__],
as
Issuing Entity
|
By:
|
[_____________________________],
|
|
not
in its individual capacity but solely as Owner Trustee
|
|
By:
|
|
Name:
|
|
Title:
|
as
Depositor
|
By:
|
|
Name:
|
|
Title:
|
[________________________________],
not
in
its individual capacity but solely as Indenture Trustee
|
By:
|
|
Name:
|
|
Title:
|
|
[______________________],
|
|
as
Trust Administrator and Master Servicer
|
|
By:
|
|
Name:
|
|
Title:
|
|
SUNTRUST
MORTGAGE, INC.,
|
|
as
Servicer
|
|
By:
|
|
Name:
|
|
Title:
|
|
STB
REAL ESTATE (GEORGIA),
INC.,
|
|
as
Seller
|
|
By:
|
|
Name:
|
|
Title:
|
STATE
OF
[_______________]
)
:
ss.:
COUNTY
OF
[____________]
)
On
this
[___] day of [_____________], 200[ ], before me, personally appeared
______________, known to me to be a ______________
of [_____________________________________], a
_________________________ that executed the within instrument, and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
seal
the
day and year in this certificate first above written.
__________________________________
Notary
Public
[NOTARIAL
SEAL]
STATE
OF
[_______________]
)
:
ss.:
COUNTY
OF
[____________]
)
On
this
[___] day of [_____________], 200[ ], before me, personally appeared
______________, known to me to be a ______________
of [_____________________________________], a
_________________________ that executed the within instrument, and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
seal
the
day and year in this certificate first above written.
_____________________________
Notary
Public
[NOTARIAL
SEAL]
STATE
OF
[_______________]
)
:
ss.:
COUNTY
OF
[____________]
)
On
this
[___] day of [_____________], 200[ ], before me, personally appeared
______________, known to me to be a ______________
of [_____________________________________], a
_________________________ that executed the within instrument, and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
seal
the
day and year in this certificate first above written.
_______________________________
Notary
Public
[NOTARIAL
SEAL]
STATE
OF
[_______________]
)
:
ss.:
COUNTY
OF
[____________]
)
On
this
[___] day of [_____________], 200[ ], before me, personally appeared
______________, known to me to be a ______________
of [_____________________________________], a
_________________________ that executed the within instrument, and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
seal
the
day and year in this certificate first above written.
______________________________
Notary
Public
[NOTARIAL
SEAL]
STATE
OF
[_______________]
)
:
ss.:
COUNTY
OF
[____________]
)
On
this
[___] day of [_____________], 200[ ], before me, personally appeared
______________, known to me to be a ______________
of [_____________________________________], a
_________________________ that executed the within instrument, and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
seal
the
day and year in this certificate first above written.
_____________________________
Notary
Public
[NOTARIAL
SEAL]
STATE
OF
[_______________]
)
:
ss.:
COUNTY
OF
[____________]
)
On
this
[___] day of [_____________], 200[ ], before me, personally appeared
______________, known to me to be a ______________
of [_____________________________________], a
_________________________ that executed the within instrument, and also known
to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
seal
the
day and year in this certificate first above written.
______________________________
Notary
Public
[NOTARIAL
SEAL]
EXHIBIT
A-1
FORM
OF
INITIAL CERTIFICATION
_______________
Date
[_____________________]
[_____________________]
[_____________________]
Attention:
Corporate Trust
[ ]
Attention:
|
Re:
|
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [_____________________], 200[ ] by and among SunTrust Mortgage
Securitization, LLC, as Depositor, [_____________________], as
Indenture
Trustee, [_____________________], as Trust Administrator and Master
Servicer, SunTrust [ ] Trust, Series
200[ ]-[__], as Issuing Entity, SunTrust Mortgage, Inc., as Servicer,
and
[_____________________] as Seller
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(a) of the Transfer and Servicing Agreement,
subject
to review of the contents thereof, the undersigned, as Custodian, hereby
certifies that it has received the documents listed in Section 2.01(b) of
the
Transfer and Servicing Agreement for each Mortgage File pertaining to each
Mortgage Loan listed on Schedule A, to the Transfer and Servicing Agreement,
subject to any exceptions noted on Schedule I hereto.
Capitalized
words and phrases used herein and not otherwise defined herein shall have
the
respective meanings assigned to them in the Transfer and Servicing
Agreement. This certificate is subject in all respects to the terms
of Section 2.02 of the Transfer and Servicing Agreement and
the sections cross-referenced therein.
[Custodian]
By: __________________________
Name:
Title:
X-0
XXXXXXX
X-0
FORM
OF
INTERIM CERTIFICATION
_______________
Date
[_____________________]
[_____________________]
[_____________________]
Attention:
Corporate Trust
[ ]
Attention:
|
Re:
|
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [_____________________], 200[ ] by and among SunTrust Mortgage
Securitization, LLC, as Depositor, [_____________________], as
Indenture
Trustee, [_____________________], as Trust Administrator and Master
Servicer, SunTrust [ ] Trust, Series
200[ ]-[__], as Issuing Entity, SunTrust Mortgage, Inc., as Servicer,
and
STB Real Estate (Georgia), Inc., as Seller
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(b) of the Transfer and Servicing Agreement,
the
undersigned, as Custodian, hereby certifies that as to each Mortgage Loan
listed
in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full
or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01(b) of the Transfer and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents identified above and has determined
that
each such document appears regular on its face and appears to relate to the
Mortgage Loan identified in such document.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Transfer and Servicing Agreement. This certificate is
qualified in all respects by the terms of said Transfer and Servicing Agreement
including, but not limited to, Section 2.02(b).
[Custodian]
By: __________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
FINAL CERTIFICATION
_______________
Date
[_____________________]
[_____________________]
[_____________________]
Attention:
Corporate Trust
[ ]
Attention:
|
Re:
|
Transfer
and Servicing Agreement (the “Transfer and Servicing Agreement”) dated as
of [_____________________], 200[ ] by and among SunTrust Mortgage
Securitization, LLC, as Depositor, [_____________________], as
Indenture
Trustee, [_____________________], as Trust Administrator and Master
Servicer, SunTrust [ ] Trust, Series
200[ ]-[__], as Issuing Entity, SunTrust Mortgage, Inc., as Servicer,
and
STB Real Estate (Georgia), Inc., as Seller
|
Ladies
and Gentlemen:
In
accordance with Section 2.02(d) of the Transfer and Servicing Agreement,
the
undersigned, as Custodian on behalf of the Indenture Trustee, hereby certifies
that as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Mortgage Loan paid in full or listed on Schedule I hereto) it (or its
custodian) has received the applicable documents listed in Section 2.01(b)
of
the Transfer and Servicing Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on
the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in the Mortgage Loan Schedule is
correct.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Transfer and Servicing Agreement. This certificate is
qualified in all respects by the terms of said Transfer and Servicing
Agreement.
[Custodian]
By: __________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
ENDORSEMENT
Pay
to
the order of [____________________], as indenture trustee (the “Indenture
Trustee”) under the Transfer and Servicing Agreement dated as of [__________],
200[ ] by and among SunTrust Mortgage Securitization, LLC, as Depositor,
the
Indenture Trustee, [____________________], as Trust Administrator and Master
Servicer, SunTrust [ ] Trust, Series 200[
]-[__], as Issuing Entity, SunTrust Mortgage, Inc., as Servicer, and STB
Real
Estate (Georgia), Inc., as Seller, relating to SunTrust
[ ] Trust, Series 200[ ]-[__] Mortgage-Backed
Notes, without recourse.
____________________________________
[current
signatory on note]
By: ________________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF
SWAP AGREEMENT
B-1-1
EXHIBIT
B-2
[RESERVED]
B-2-1
EXHIBIT
C
FORM
OF
LOST NOTE AFFIDAVIT
I,
_____________________________, being duly sworn, do hereby state under oath
that:
1.
|
I,
as __________________ of___________________________ (the “Company”), am
authorized to make this Affidavit on behalf of the Company.
|
2.
|
The
Company received the following described mortgage note (the “Note”):
|
Loan
No.:
Borrower(s):
Original
Principal Amount:
from
the
Borrower(s) to secure a Deed of Trust/Mortgage (the “Deed of Trust/Mortgage”)
dated ______________ from the Borrower(s) to the Company.
3.
|
The
Company represents and warrants that it has not canceled, altered,
assigned, or hypothecated the Note.
|
4.
|
The
original Note, a true and correct copy of which is attached hereto,
was
not located after a thorough and diligent search, and based thereon,
the
Company declares the Note lost.
|
5.
|
This
Affidavit is intended to be relied on by the Indenture Trustee
and its
successors and assigns.
|
6.
|
The
Company has assigned all of its right, title and interest in the
Note and
the Deed of Trust/Mortgage to the Indenture Trustee and agrees
immediately
and without further consideration to surrender the original Note
to the
Indenture Trustee or its successor and assigns if such original
Note ever
comes into the Company’s possession, custody, or power.
|
7.
|
The
Company further agrees to indemnify and hold harmless the Indenture
Trustee and its successors and assigns from any and all loss, liability,
costs, damages, reasonable attorneys’ fees and expenses without limitation
in connection with or arising out of the representations, warranties,
and
agreements made in this Affidavit and any claim of any nature made
by any
entity with respect to the Note.
|
8.
|
The
Company agrees and acknowledges that this Affidavit may be presented
as
evidence of the Note, whether in any proceeding or action with
respect
thereto or otherwise, and hereby authorizes such use of this Affidavit.
|
9.
|
The
representations, warranties, and agreements herein shall bind the
undersigned and its successors and assigns, and shall inure to
the benefit
of the Indenture Trustee and its successors and assigns.
|
C-1
EXECUTED
THIS ______ day of ____________, 200_ on behalf
of_______________
__________________________________________
By:
Its:
STATE
OF
)
)
ss:
COUNTY
OF
)
On
the
_____ day of ______________, 200___, before me, _____________________, a
notary
public in and for said State, personally appeared ___________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity
upon
behalf of which the person acted, executed the instrument.
WITNESS
my hand and official seal.
_______________________________________
Notary
Public
My
Commission Expires:
C-2
EXHIBIT
D
CUSTODIAL
AGREEMENT
D-1
EXHIBIT
E
CUSTODIAL
ACCOUNT LETTER AGREEMENT
______________________
To:
____________________
____________________
____________________
(the
“Depository”)
As
Servicer under the Transfer and Servicing Agreement dated as of [____________],
200[ ], by and among SunTrust Mortgage Securitization, LLC, as Depositor,
you,
as Indenture Trustee, [____________________], as Trust Administrator and
Master
Servicer, SunTrust [ ] Trust, Series 200[
]-[__], as Issuing Entity, SunTrust Mortgage, Inc., as Servicer,
and (the “Transfer and Servicing Agreement”), we hereby authorize and
request you to establish an account as a Custodial Account pursuant to Section
3.03 of the Transfer and Servicing Agreement, designated as
“[____________________] in trust for [____________________], as Indenture
Trustee for the SunTrust [ ] Trust, Series
200[ ]-[__].” All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Servicer. This letter is submitted to you in
duplicate. Please execute and return one original to us.
[______________________________]
Servicer
By: _________________________________________
Name:
|
Title:
|
|
Date:
|
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number _______________, at the office
of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
____________________________________
Depository
By: _____________________________________
Name:
Title:
Date:
E-1
EXHIBIT
F
ESCROW
ACCOUNT LETTER AGREEMENT
________________
___,
_____
To:
_________________
_________________
_________________
(the
“Depository”)
As
Servicer under the Transfer and Servicing Agreement dated as of [__________],
200[ ], by and among SunTrust Mortgage Securitization, LLC, as Depositor,
you,
as Indenture Trustee, [______________], as Trust Administrator and Master
Servicer, SunTrust [ ] Trust, Series 200[
]-[__], as Issuing Entity, SunTrust Mortgage, Inc., as Servicer, and STB
Real
Estate (Georgia), Inc., as Seller (the “Transfer and Servicing Agreement”), we
hereby authorize and request you to establish an account, as an Escrow Account
pursuant to Section 3.05 of the Transfer and Servicing Agreement, to be
designated as “[______________] in trust for [______________], as Indenture
Trustee for the SunTrust [ ] Trust, Series
200[ ]-[__].” All
deposits in the account shall be subject to withdrawal therefrom by order
signed
by the Servicer. This
letter is submitted to you in duplicate. Please execute and return
one original to us.
[______________],
Servicer
By: _____________________________________
Name:
|
Title:
|
|
Date:
|
F-1
The
undersigned, as Depository, hereby certifies that the above described account
has been established under Account Number ______, at the office of the
Depository indicated above, and agrees to honor withdrawals on such account
as
provided above.
____________________________________
Depository
By: ______________________________________
Name:____________________________________
Title:_____________________________________
Date:_____________________________________
F-2
EXHIBIT
G-1
FORM
OF
MONTHLY REMITTANCE ADVICE
FIELD
NAME
|
DESCRIPTION
|
FORMAT
|
INVNUM
|
INVESTOR
LOAN NUMBER
|
Number
no decimals
|
SERVNUM
|
SERVICER
LOAN NUMBER, REQUIRED
|
Number
no decimals
|
BEGSCHEDBAL
|
BEGINNING
SCHEDULED BALANCE FOR SCHED/SCHEDNumber two decimals
BEGINNING
TRAIL BALANCE FOR ACTUAL/ACTUAL, REQUIRED
|
Number
two decimals
|
SCHEDPRIN
|
SCHEDULED
PRINCIPAL AMOUNT FOR SCHEDULED/SCHEDULED ACTUAL PRINCIPAL COLLECTED
FOR
ACTUAL/ACTUAL, REQUIRED, .00 IF NO COLLECTIONS
|
Number
two decimals
|
CURT1
|
CURTAILMENT
1 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT1DATE
|
CURTAILMENT
1 DATE, BLANK IF NOT APPLICABLE
|
DD-MM-YY
|
CURTIADJ
|
CURTAILMENT
1 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT2
|
CURTAILMENT
2 XXXXXX, .00 IF NOT APPLICABLE
|
Number
two decimals
|
CURT2DATE
|
CURTAILMENT
2 DATE, BLANK IF NOT APPLICABLE
|
DD-MM-YY
|
CURT2ADJ
|
CURTAILMENT
2 ADJUSTMENT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
LIQPRIN
|
PAYOFF,
LIQUIDATION PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
OTHPRIN
|
OTHER
PRINCIPAL, .00 IF NOT APPLICABLE
|
Number
two decimals
|
PRINREMIT
|
TOTAL
PRINCIPAL REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
INTREMIT
|
NET
INTEREST REMIT, INCLUDE PAYOFF INTEREST, .00 IF NOT
APPLICABLE
|
Number
two decimals
|
TOTREMIT
|
TOTAL
REMITTANCE AMOUNT, .00 IF NOT APPLICABLE
|
Number
two decimals
|
ENDSCHEDBAL
|
ENDING
SCHEDULED BALANCE FOR SCHEDULED/SCHEDULED ENDING TRIAL BALANCE
FOR
ACTUAL/ACTUAL .00 IF PAID OFF, LIQUIDATED OR FULL
CHARGEOFF
|
Number
two decimals
|
ENDACTBAL
|
ENDING
TRIAL BALANCE
.00
IF PAID OFF, LIQUIDATED OR FULL CHARGEOFF
|
Number
two decimals
|
ENDDUEDATE
|
ENDING
ACTUAL DUE DATE, NOT LAST PAID INSTALLMENT
|
DD-MM-YY
|
ACTCODE
|
60
IF PAID OFF, BLANK IF NOT APPLICABLE
|
Number
no decimals
|
ACTDATE
|
ACTUAL
PAYOFF DATE, BLANK IF NOT APPLICABLE
|
DD-MM-YY
|
G-1-1
INTRATE
|
INTEREST
RATE, REQUIRED
|
Number
seven decimals
|
Example
.0700000 for 7.00%
|
||
SFRATE.
|
SERVICING
ADMINISTRATION FEE RATE, REQUIRED
|
Number
seven decimals
|
Example
.0025000 for .25%
|
||
PTRATE
|
PASS
THRU RATE, REQUIRED
|
Number
seven decimals
|
Example
.0675000 for 6.75%
|
||
PIPMT
|
P&I
CONSTANT, REQUIRED .00 IF PAID OFF
|
Number
two decimals
|
G-1-2
EXHIBIT
G-2
STANDARD
LAYOUT FOR MONTHLY DEFAULTED LOAN REPORT
1.
|
Deal
Identifier by Loan
|
2.
|
SBO
Loan Number
|
3.
|
Loan
Number
|
4.
|
Investor
Loan Number
|
5.
|
Street
Address
|
6.
|
City
|
7.
|
State
|
8.
|
Zip
Code
|
9.
|
Original
Loan Amount
|
10.
|
Origination
Date
|
11.
|
First
Payment Date
|
12.
|
Current
Loan Amount
|
13.
|
Current
Interest Rate
|
14.
|
Current
P&I Payment Amount
|
15.
|
[Reserved]
|
16.
|
[Reserved]
|
17.
|
Next
Rate Adjustment Date
|
18.
|
Next
Payment Adjustment Date
|
19.
|
Loan
Term
|
20.
|
Loan
Type
|
21.
|
[Reserved]
|
22.
|
Product
Type
|
23.
|
Property
Type
|
24.
|
Ownership
Code
|
25.
|
Actual
Due Date
|
26.
|
Delinquency
Status
|
27.
|
[Reserved]
|
28.
|
FC
Flag
|
29.
|
Date
Loan Reinstated
|
30.
|
FC
Suspended Date
|
31.
|
Reason
Suspended
|
32.
|
FC
Start Date (referral date)
|
33.
|
Actual
Notice of Intent Date
|
34.
|
Actual
First Legal Date
|
35.
|
[Reserved]
|
36.
|
Date
F/C Sale Scheduled
|
37.
|
Foreclosure
Actual Sale Date
|
38.
|
Actual
Redemption End Date
|
39.
|
Occupancy
Status
|
40.
|
Occupancy
Status Date
|
41.
|
Actual
Eviction Start Date
|
42.
|
Actual
Eviction Complete Date
|
43.
|
Loss
Mit Workstation Status
|
G-2-1
44.
|
Loss
Mit Flag
|
45.
|
Loss
Mit Type
|
46.
|
Loss
Mit Start Date
|
47.
|
Loss
Mit Approval Date
|
48.
|
Loss
Mit Removal Date
|
49.
|
REO
Flag
|
50.
|
Actual
REO Start Date
|
51.
|
REO
List Date
|
52.
|
REO
List Price
|
53.
|
Date
REO Offer Received
|
54.
|
Date
REO Offer Accepted
|
55.
|
REO
Scheduled Close Date
|
56.
|
REO
Actual Closing Date
|
57.
|
REO
Net Sales proceeds
|
58.
|
REO
Sales Price
|
59.
|
Paid
Off Code
|
60.
|
Paid
in Full Date
|
61.
|
MI
Certificate Number
|
62.
|
[Reserved]
|
63.
|
[Reserved]
|
64.
|
[Reserved]
|
65.
|
[Reserved]
|
66.
|
[Reserved]
|
67.
|
[Reserved]
|
68.
|
[Reserved]
|
69.
|
[Reserved]
|
70.
|
[Reserved]
|
71.
|
[Reserved]
|
72.
|
Actual
Claim Filed Date
|
73.
|
Actual
Claim Amount Filed
|
74.
|
Claim
Amount Paid
|
75.
|
Claim
Funds Received Date
|
76.
|
Realized
Gain or Loss
|
77.
|
BK
Flag
|
78.
|
Bankruptcy
Chapter
|
79.
|
Actual
Bankruptcy Start Date
|
80.
|
Actual
Payment Plan Start Date
|
81.
|
Actual
Payment Plan End Date
|
82.
|
Date
POC Filed
|
83.
|
Date
Filed Relief/Dismissal
|
84.
|
Relief/Dismissal
Hearing Date
|
85.
|
Date
Relief/Dismissal Granted
|
86.
|
Post
Petition Due Date
|
87.
|
Prepayment
Flag
|
88.
|
Prepayment
Waived
|
89.
|
Prepayment
Premium Collected
|
G-2-2
90.
|
Partial
Prepayment Amount Collected
|
91.
|
Prepayment
Expiration Date
|
92.
|
Origination
Value Date
|
93.
|
Origination
Value Source
|
94.
|
Original
Value Amount
|
95.
|
FC
Valuation Amount
|
96.
|
FC
Valuation Source
|
97.
|
FC
Valuation Date
|
98.
|
REO
Value Source
|
99.
|
REO
Value(As-is)
|
100.
|
REO
Repaired Value
|
101.
|
REO
Value Date
|
102.
|
Investor/Security
Billing Date Sent
|
Table: Delinquency
Name
|
Type
|
Max
Character Size
|
Servicer
Loan #
|
Number
|
10
|
Investor
Loan #
|
Number
|
10
|
Servicer
Investor #
|
Text
|
3
|
Borrower
Name
|
Text
|
20
|
Xxxxxxx
|
Xxxx
|
00
|
Xxxxx
|
Xxxx
|
0
|
Xxx
|
Xxxx
|
5
|
Due
Date
|
Date/Time
|
8
|
Loan
Type
|
Text
|
8
|
BK
Filed Date
|
Date/Time
|
8
|
BK
Chapter
|
Text
|
6
|
BK
Case Number
|
Text
|
30
Maximum
|
Post
Petition Due
|
Date/Time
|
8
|
Motion
for Relief
|
Date/Time
|
8
|
Lift
of Stay
|
Date/Time
|
8
|
BK
Discharge/Dismissal Date
|
Date/Time
|
8
|
Loss
Mit Approval Date
|
Date/Time
|
8
|
Loss
Mit Type
|
Text
|
5
|
Loss
Mit Code
|
Number
|
2
|
Loss
Mit Estimated Completion Date
|
Date/Time
|
8
|
Loss
Mit Actual Completion Date
|
Date/Time
|
8
|
FC
Approval Date
|
Date/Time
|
8
|
File
Referred to Attorney
|
Date/Time
|
8
|
NOD
|
Date/Time
|
8
|
Complaint
Filed
|
Date/Time
|
8
|
Scheduled
Sale Date
|
Date/Time
|
8
|
Actual
Sale Date
|
Date/Time
|
8
|
F/C
Sale Amount
|
Currency
|
8
|
Eviction
Start Date
|
Date/Time
|
8
|
G-2-3
Eviction
Completed Date
|
Date/Time
|
8
|
List
Price
|
Currency
|
8
|
List
Date
|
Date/Time
|
8
|
Accepted
Offer Price
|
Currency
|
8
|
Accepted
Offer Date
|
Date/Time
|
8
|
Estimated
REO Closing Date
|
Date/Time
|
8
|
Actual
REO Sale Date
|
Date/Time
|
8
|
Occupant
Code
|
Text
|
10
|
Property
Condition Code
|
Text
|
2
|
Property
Inspection Date
|
Date/Time
|
8
|
Property
Value Date
|
Date/Time
|
8
|
Current
Property Value
|
Currency
|
8
|
Repaired
Property Value
|
Currency
|
8
|
Current
LTV
|
Currency
|
8
|
FNMA
Delinquent Status Code
|
Text
|
2
|
FNMA
Delinquent Reason Code
|
Text
|
3
|
If
applicable:
MI
Cancellation Date
|
Date/Time
|
8
|
MI
Claim Filed Date
|
Date/Time
|
8
|
MI
Claim Amount
|
Currency
|
8
|
MI
Claim Reject Date
|
Date/Time
|
8
|
MI
Claim Resubmit Date
|
Date/Time
|
8
|
MI
Claim Paid Date
|
Date/Time
|
8
|
MI
Claim Amount Paid
|
Currency
|
8
|
Pool
Claim Filed Date
|
Date/Time
|
8
|
Pool
Claim Amount
|
Currency
|
8
|
Pool
Claim Reject Date
|
Date/Time
|
8
|
Pool
Claim Paid Date
|
Date/Time
|
8
|
Pool
Claim Amount Paid
|
Currency
|
8
|
Pool
Claim Resubmit Date
|
Date/Time
|
8
|
FHA
Part A Claim Filed Date
|
Date/Time
|
8
|
FHA
Part A Claim Amount
|
Currency
|
8
|
FHA
Part A Claim Paid Date
|
Date/Time
|
8
|
FHA
Part A Claim Paid Amount
|
Currency
|
8
|
FHA
Part B Claim Filed Date
|
Date/Time
|
8
|
FHA
Part B Claim Amount
|
Currency
|
8
|
FHA
Part B Claim Paid Date
|
Date/Time
|
8
|
FHA
Part B Claim Paid Amount
|
Currency
|
8
|
VA
Claim Filed Date
|
Date/Time
|
8
|
VA
Claim Paid Date
|
Date/Time
|
8
|
VA
Claim Paid Amount
|
Currency
|
8
|
The
Loss
Mit Type field should show the approved Loss Mitigation
arrangement. The following are acceptable:
•
ASUM-
Approved Assumption
G-2-4
•
BAP-
Borrower Assistance Program
•
CO-
Charge Off
•
DIL-
Deed-in-Lieu
•
FFA-
Formal Forbearance Agreement
•
MOD-
Loan Modification
•
PRE-
Pre-Sale
•
SS-
Short Sale
•
MISC-
Anything else approved by the PMI or Pool Insurer
[Master
Servicer and Trust Administrator] will accept alternative Loss Mitigation
Types
to those above, provided that they are consistent with industry
standards. If Loss Mitigation Types other than those above are used,
the Servicer must supply [Master Servicer and Trust Administrator] with a
description of each of the Loss Mitigation Types prior to sending the
file.
G-2-5
The
Occupant Code field should show the current status of the
property. The acceptable codes are:
•
Mortgagor
•
Tenant
•
Unknown
•
Vacant
The
Property Condition field should show the last reported condition of the
property. The acceptable codes are:
•
Damaged
•
Excellent
•
Fair
•
Gone
•
Good
•
Poor
•
Special Hazard
•
Unknown
The
FNMA
Delinquent Reason Code field should show the Reason for Default. The
following FNMA Delinquency Reason Codes to be used are below.
Delinquency
Code
|
Delinquency
Description
|
001
|
FNMA-Death
of principal mortgagor
|
002
|
FNMA-Illness
of principal mortgagor
|
003
|
FNMA-Illness
of mortgagor’s family member
|
004
|
FNMA-Death
of mortgagor’s family member
|
005
|
FNMA-Marital
difficulties
|
006
|
FNMA-Curtailment
of income
|
007
|
FNMA-Excessive
Obligation
|
008
|
FNMA-Abandonment
of property
|
009
|
FNMA-Distant
employee transfer
|
011
|
FNMA-Property
problem
|
012
|
FNMA-Inability
to sell property
|
013
|
FNMA-Inability
to rent property
|
014
|
FNMA-Military
Service
|
015
|
FNMA-Other
|
016
|
FNMA-Unemployment
|
017
|
FNMA-Business
failure
|
019
|
FNMA-Casualty
loss
|
022
|
FNMA-Energy
environment costs
|
G-2-6
023
|
FNMA-Servicing
problems
|
026
|
FNMA-Payment
adjustment
|
027
|
FNMA-Payment
dispute
|
029
|
FNMA-Transfer
of ownership pending
|
030
|
FNMA-Fraud
|
031
|
FNMA-Unable
to contact borrower
|
INC
|
FNMA-Incarceration
|
The
FNMA
Delinquent Status Code field should show the Status of Default. The
following FNMA Delinquency Status Codes to be used are below.
Status
Code
|
Status
Description
|
09.
|
Forbearance
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
24
|
Government
Seizure
|
26
|
Refinance
|
27
|
Assumption
|
28
|
Modification
|
29
|
Charge-Off
|
30
|
Third
Party Sale
|
31
|
Probate
|
32
|
Military
Indulgence
|
43
|
Foreclosure
Started
|
44
|
Deed-in-Lieu
Started
|
49
|
Assignment
Completed
|
61
|
Second
Lien Considerations
|
62
|
Veteran’s
Affairs-No Bid
|
63
|
Veteran’s
Affairs-Refund
|
64
|
Veteran’s
Affairs-Buydown
|
65
|
Chapter
7 Bankruptcy
|
66
|
Chapter
11 Bankruptcy
|
67
|
Chapter
13 Bankruptcy
|
G-2-7
EXHIBIT
G-3
FORM
332 REALIZED LOSS REPORT
[__________________]
Purpose
To
provide the Servicer with a form for the calculation of any Realized Loss
(or
gain) as a result of a Mortgage Loan having been foreclosed and
Liquidated.
The
Servicer will prepare the form in duplicate and send the original together
with
evidence of conveyance of title and appropriate supporting documentation
to the
Master Servicer with the Monthly Accounting Reports which supports the Mortgage
Loan’s removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due
Date
With
respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the
Master
Servicer under Section 4.02 of this Agreement (the “Statement Date”) in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if
such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage
Loan,
then the form will be submitted on the first Statement Date occurring after
the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation
Instructions
The
numbers on the form correspond with the numbers listed below.
1.
|
The
actual Unpaid Principal Balance of the Mortgage Loan.
|
2.
|
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent
payments had been made as agreed.
|
8.
|
Accrued
Servicing Fees based upon the Stated Principal Balance of the Mortgage
Loan as calculated on a monthly basis.
|
10.
|
The
total of lines 1 through 9.
|
G-3-1
Credits
|
18.
The total of lines 11 through 17.
Total
Realized Loss (or
Amount of Any Gain)
19.
|
The
total derived from subtracting line 18 from 10. If the amount represents
a
realized gain, show the amount in parenthesis ( ).
|
G-3-2
[__________________]
CALCULATION
OF REALIZED LOSS
[
] Trust: ___________________________
Prepared
by:
_______________
Date:______________
Phone: ___________________
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
[Master
Servicer and Trust Administrator]
Loan
No.
______________________________
Borrower’s
Name:
Property
Address:
Liquidation
and Acquisition Expenses:
Actual
Unpaid Principal Balance of Mortgage
Loan$ _________(1)
Interest
accrued at Net
Rate _________(2)
Attorney’s
Fees
_________(3)
Taxes
_________(4)
Property
Maintenance ________(5)
MI/Hazard
Insurance
Premiums ________(6)
Hazard
Loss
Expenses
________ (7)
Accrued
Servicing
Fees ________(8)
Other
(itemize)
________ (9)
________________________________________ $
_________
________________________________________
__________
________________________________________
__________
________________________________________
__________
Total
Expenses
$________ (10)
Credits:
Escrow
Balance $_________ (11)
HIP
Refund __________(12)
Rental
Receipts
__________(13)
Hazard
Loss
Proceeds
__________ (14)
Primary
Mortgage Insurance
Proceeds
___________(15)
Proceeds
from Sale of Acquired
Property
___________(16)
Other
(itemize)
___________(17)
________________________________________ ______________
________________________________________ ______________
Total
Credits________________________________________
$___________ (18)
Total
Realized Loss (or of
Gain) $___________ (19)
Data
must
be submitted to [Master Servicer and Trust Administrator] in an Excel
spreadsheet format with fixed field names and data type. The Excel
spreadsheet should be used as a template consistently
every month when submitting data for all loans that are 60 days + delinquent
and/or in bankruptcy, foreclosure or REO.
G-3-3
EXHIBIT
H
FORM
OF
BACK-UP CERTIFICATION
[______________]
[Name
and
address of
master
servicer]
Re:
[name of securitization]
[______________],
as Servicer, hereby certifies to the Master Servicer, the Indenture Trustee,
and
the Trust Administrator that:
1. To
our knowledge, the information in the Annual Statement of Compliance, the
Annual
Independent Public Accountant’s Servicing Report and all servicing reports,
officer’s certificates and other information relating to the servicing of the
Mortgage Loans submitted to the Master Servicer 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 light of the circumstances under
which
such statements were made, not misleading as of the last day of the period
covered by such reports;
2. To
our knowledge, the servicing information required to be provided to the Master
Servicer by the Servicer under the Transfer and Servicing Agreement has been
provided to the Master Servicer;
3. Based
upon the review required by the Transfer and Servicing Agreement, and except
as
disclosed in the Annual Statement of Compliance or the Annual Independent
Public
Accountant’s Servicing Report, the Servicer has, as of the last day of the
period covered by such reports fulfilled the obligations of the Servicer
under
the Transfer and Servicing Agreement; and
4. The
Servicer has disclosed to the Master Servicer all significant deficiencies
relating to the Servicer’s compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth
in the
Transfer and Servicing Agreement.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Transfer and Servicing Agreement, dated as of [______________], 2008 (the
“Servicing Agreement”), among SunTrust [ ]
Trust, Series 200[ ]-[__], as issuer
(the “Issuing
Entity”), SunTrust Mortgage Securitization, LLC, as depositor (the “Depositor”),
[______________], as indenture trustee (the “Indenture Trustee”), SunTrust
Mortgage, Inc., as servicer (the “Servicer”), [________] as seller (the
“Seller”), and [______________], as master servicer (the “Master Servicer”) and
trust administrator (the “Trust Administrator”).
H-1
[______________],
as
Servicer
By: ___________________
Name:
Title:
Date:
H-2
EXHIBIT
I
FORM
OF
SUBSEQUENT TRANSFER AGREEMENT
SUBSEQUENT
TRANSFER AGREEMENT (the “Agreement”), dated as of [_________], 200_, by and
among STB Real Estate (Georgia), Inc. (the “Seller”), SunTrust Mortgage
Securitization, LLC (the “Depositor)”, SunTrust
[ ] Trust, Series 200[ ]-[__] (the “Trust”),
[______________] (the “Indenture Trustee”) and [______________] (the “Trust
Administrator”) pursuant to the Transfer and Servicing Agreement referred to
below.
Section
I.
Capitalized terms used herein shall have the meanings ascribed to them in
the
Transfer and Servicing Agreement unless otherwise defined.
“Subsequent
Cut-off Date” shall mean, with respect to the Subsequent Mortgage Loans
transferred hereby, [].
“Subsequent
Mortgage Loans” shall mean, for purposes of this Agreement, the Subsequent
Mortgage Loans listed in the Subsequent Mortgage Loan Schedule attached hereto
as Schedule I.
“Subsequent
Transfer Date” shall mean, with respect to the Subsequent Mortgage Loans
transferred hereby, the date hereof.
Section
II.
Subsequent Mortgage
Loan Schedule. The Subsequent Mortgage Loan Schedule attached
hereto as Schedule I is a supplement to the Initial Mortgage Loan Schedule
attached as Schedule A to the Transfer and Servicing Agreement. The
Mortgage Loans listed in the Subsequent Mortgage Loan Schedule constitute
the
Subsequent Mortgage Loans to be transferred pursuant to this Agreement on
the
Subsequent Transfer Date.
I-1
Section
III.
Transfer of Subsequent
Mortgage Loans. As of the related Cut-off Date, subject to and
upon the terms and conditions set forth in Sections 2.01,2.02, 2.04, 3.01,
3.02
and 3.03 of the Transfer and Servicing Agreement and set forth in this
Agreement, the Seller hereby irrevocably sells, transfers, assigns, sets
over
and otherwise conveys to the Depositor and the Depositor hereby irrevocably
sells, transfers, assigns, sets over and otherwise conveys to the Trust without
recourse other than as expressly provided herein and in the Transfer and
Servicing Agreement, all the right, title and interest of the Seller and
the
Depositor in and to the (i) Subsequent Mortgage Loans including the related
Stated Principal Balance as of the subsequent Cut-off Date, all interest
accruing thereon after the Subsequent Cut-off Date, and all collections in
respect of principal received after the Subsequent Cut-off Date; (ii) property
which secured a Subsequent Mortgage Loan and which is acquired by foreclosure
or
in lieu of foreclosure; (iii) interest of the Seller in any insurance policies
in respect of the Subsequent Mortgage Loans; and (iv) all proceeds of any
of the
foregoing.
Section
IV.
Representations
and
Warranties of the Seller and the Depositor. (a) The Seller and
the Depositor hereby represent and warrant to the Trust for the benefit of
the
Certificateholders that the representations and warranties of the Seller
and the
Depositor set forth in Sections , (b) and (c) of the Transfer and Servicing
Agreement are true and correct with respect to the Seller and the Subsequent
Mortgage Loans as of the Subsequent Transfer Date.
(b)
The Seller hereby represents and warrants that (i) the aggregate of the Stated
Principal Balances of the Subsequent Mortgage Loans listed on the Subsequent
Mortgage Loan Schedule and conveyed to the Trust pursuant to this Agreement
as
of the Subsequent Cut-off Date is $_____________and (ii) the conditions
precedent for the transfer of Subsequent Mortgage Loans set forth in Section
2.04 of the Transfer and Servicing Agreement have been satisfied as of the
Subsequent Transfer Date.
(c)
The Seller and the Depositor hereby represent and warrant that neither the
Seller nor the Depositor is (i) insolvent and will not be rendered insolvent
by
the transfer of Subsequent Mortgage Loans pursuant to this Agreement or (ii)
aware of any pending insolvency.
Section
V.
Counterparts. This
Agreement may be executed in two or more counterparts (and by different parties
in separate counterparts), each of which shall be an original but all of
which
together shall constitute one and the same instrument.
Section
VI.
Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws without regard to conflict of laws principles applied in New York
(other than Section 5-1401 of the New York General Obligations Law which
shall
apply hereto).
Section
VII. Execution by the
Issuing
Entity. It is expressly understood and agreed by the parties
hereto that (a) this Agreement is executed and delivered by “Subsequent Cut-off
Date” shall mean, with respect to the Subsequent Mortgage Loans transferred
hereby, [_______________], not individually or personally but solely as Owner
Trustee of the Issuing Entity, in the exercise of the powers and authority
conferred and vested in it as trustee, (b) each of the representations,
undertakings and agreements
I-2
herein
made on the part of the Issuing Entity is made and intended not as personal
representations, undertakings and agreements by [_______________] but is
made
and intended for the purpose of binding only the Issuing Entity, (c) nothing
herein contained shall be construed as creating any liability on
[_______________], individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any person claiming by, through
or
under the parties hereto and (d) under no circumstances shall [_______________]
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 any other document.
I-3
SUNTRUST
[ ] TRUST,
SERIES
200[ ]-[__], as Issuing Entity
By:
[_______________],
not
in its individual capacity but
solely as Owner
Trustee
By: _________________________________________
Name:
Title:
SUNTRUST
MORTGAGE SECURITIZATION, LLC,
as
Depositor
By: __________________________________________
Name:
Title:
[_______________],
not
in
its individual capacity but solely as Indenture
Trustee
By: ___________________________________________
Name:
Title:
[_______________],
as
Trust
Administrator and Master Servicer
By: ___________________________________________
Name:
Title:
I-4
SUNTRUST
MORTGAGE, INC.,
as
Servicer
By: ____________________________________________
Name:
Title:
STB
Real
Estate (Georgia), Inc.,
as
Seller
By:_____________________________________________
Name:
Title:
I-5
STATE
OF
)
:
ss.:
COUNTY
OF
)
On
this
___ day of __________, before me, personally appeared _____________, known
to me
to be a _______ of
[ ],
that executed the within instrument, and also known to me to be the person
who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
_____________________________
Notary Public
[NOTARIAL
SEAL]
I-6
STATE
OF
)
:
ss.:
COUNTY
OF
)
On
the __
day of ____________, before me, personally appeared ____________, known to
me to
be a ____________ of SunTrust Mortgage Securitization, LLC, a corporation
that
executed the within instrument and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
_____________________________
Notary
Public
[NOTARIAL
SEAL]
I-7
STATE
OF
)
: ss.:
COUNTY
OF
)
On
the __
day of ____________, before me, a Notary Public in and for said State,
personally appeared ____________ known to me to be a____________ of [Indenture
Trustee], a [ ] that executed the within instrument and also known to
me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
_____________________________
Notary
Public
[NOTARIAL
SEAL]
I-8
STATE
OF
)
: ss.:
COUNTY
OF )
On
the __
day of ____________, before me, a Notary Public in and for said State,
personally appeared ____________ known to me to be a ____________ of [Master
Servicer], a [ ] that executed the within instrument and
also known to me to be the person who executed it on behalf of said corporation,
and acknowledged to me that such corporation executed the within
instrument.
_____________________________
Notary
Public
[NOTARIAL
SEAL]
I-9
STATE
OF
)
: ss.:
COUNTY
OF
)
On
the __
day of ____________, before me, a Notary Public in and for said State,
personally appeared ____________ known to me to be a ____________ of SunTrust
Mortgage, Inc., a corporation that executed the within instrument and also
known
to me to be the person who executed it on behalf of said corporation, and
acknowledged to me that such corporation executed the within
instrument.
___________________________
Notary
Public
[NOTARIAL
SEAL]
I-10
EXHIBIT
J
SUBSEQUENT
MORTGAGE LOAN CRITERIA
The
obligation of the Trust to purchase Subsequent Mortgage Loans during the
Pre-Funding Period is subject to the following requirements:
|
•
|
such
Subsequent Mortgage Loan may not be more than one calendar month
contractually delinquent as of the related Subsequent Cut-off Date;
|
|
•
|
such
Subsequent Mortgage Loan may not have a final maturity date later
than
[____________];
|
|
•
|
the
remaining term to stated maturity of such Subsequent Mortgage Loan
will
not exceed 30 years;
|
|
•
|
such
Subsequent Mortgage Loan will have a Mortgage Rate not less than
[____]%
per annum;
|
|
•
|
such
Subsequent Mortgage Loan will not have an original loan-to-value
ratio
greater than 100%;
|
|
•
|
such
Subsequent Mortgage Loan will have a principal balance not greater
than
$[__________];
|
|
•
|
such
Subsequent Mortgage Loan will be secured by a first or second lien
on a
Mortgaged Property; and
|
|
•
|
such
Subsequent Mortgage Loan will be otherwise acceptable to the Rating
Agencies.
|
Following
the purchase of such Subsequent Mortgage Loans by the Trust, the mortgage
pool
and each Mortgage Group will have the following characteristics (based upon
the
characteristics of the (a) Initial Mortgage Loans as of the Initial Cut-off
Date
and (b) Subsequent Mortgage Loans as of the related Subsequent Cut-off
Date):
Mortgage
Pool
|
•
|
a
weighted average current Mortgage Rate of at least [____]% per
annum;
|
|
•
|
a
weighted average remaining term to stated maturity of less than
360
months;
|
|
•
|
a
weighted average original loan-to-value ratio of not more than
[____]%;
|
|
•
|
a
weighted average Credit Score of at least [___]; and
|
|
•
|
no
more than [____]% of the Mortgage Loans by Aggregate Loan Balance
at the
end of the Pre-Funding Period will be used for cash-out refinances.
|
J-1
Group
1
|
•
|
a
weighted average current Mortgage Rate of at least [____]% per
annum;
|
|
•
|
a
weighted average remaining term to stated maturity of less than
360
months;
|
•
a weighted average original loan-to-value ratio of not more than [____]%;
and
|
•
|
no
more than [____]% of the Group 1 Mortgage Loans by Aggregate Loan
Balance
at the end of the Pre-Funding Period will be used for cash-out
refinances.
|
Group
2
|
•
|
a
weighted average current Mortgage Rate of at least [____]% per
annum;
|
|
•
|
a
weighted average remaining term to stated maturity of less than
360
months;
|
|
•
|
a
weighted average original loan-to-value ratio of not more than
[____]%;
and
|
|
•
|
no
more than [____]% of the Group 1 Mortgage Loans by Aggregate Loan
Balance
at the end of the Pre-Funding Period will be used for cash-out
refinances.
|
J-2
|
EXHIBIT
K
|
XXXXXX
XXX GUIDE NO. 95-19
Reference
|
•
|
Selling
|
This
announcement amends the guide(s) indicated.
|
|
•
|
Servicing
|
Please
keep it for reference until we issue a formal change.
|
Subject
“Full-File” Reporting to Credit Repositories
Part
IV,
Section 107, of the servicing Guide currently requires servicers to report
only
90-day delinquencies to the four major credit repositories. To ensure
that the repositories have up-to-date information for both servicing and
origination activity, we have decided to begin requiring ---
as of
the month ending March 31, 1996 -- servicers to provide the credit repositories
a “full-file” status report for the mortgages they service for us.
“Full-file”
reporting requires that servicers submit a monthly report to each of the
credit
repositories to describe the exact status for each mortgage they service
for
us. The status reported generally should be the one in effect as of
the last business day of each month. Servicers may, however, use a
slightly later cut-off date -- for example, at the end of the first week
of a
month -- to assure that payment corrections, returned checks, and other
adjustments related to the previous month’s activity can be appropriately
reflected in their report for that month. Statuses that must be
reported for any given mortgage include the following: new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, and
charged-off. (The credit repositories will provide the applicable
codes for reporting these statuses to them.) A listing of each of the major
repositories to which “full-file” status reports must be sent is
attached.
Servicers
are responsible for the complete and accurate reporting of mortgage status
information to the repositories and for resolving any disputes that arise
about
the information they report. Servicers must respond promptly to any
inquiries from borrowers regarding specific mortgage status information about
them that was reported to the credit repositories.
Servicers
should contact their Customer Account Team in their lead Xxxxxx Mae regional
office if they have any questions about this expanded reporting
requirement.
Xxxxxx
X.
Engeletad
Senior
Vice President – Mortgage and Lender Standards
11/20/95
K-1
XXXXXX
MAE GUIDE 95-19
ATTACHMENT
I
ANNOUNCEMENT
Major
Credit Repositories
A
“full-file” status report for each mortgage serviced for Xxxxxx Xxx must be sent
to the following repositories each month (beginning with the month ending
March
31, 1996):
Consumer
Credit Associates,
Inc. Call
(000) 000-0000, either
extension
000
Xxxxxxxxxxxx Xxxxxx, Xxxxx
000 150,
101, or 112, for all inquiries.
Xxxxxxx,
Xxxxx 00000-0000
Equifax
Members that have an account number
may
call their local sales representative
or all inquiries; lenders that need to set
up
an account should call (800) 685-
5000 and select the customer assistance
option.
TRW
Information Systems &
Services Call
(000) 000-0000 for all inquiries,
000
XXX
Xxxxxxx current
members should select option 3;
Xxxxx,
Xxxxx
00000 lenders
that need to set up an account
should select Option 4.
Trans
Union
Corporation
Call (000) 000-0000 to get the name of
555
West
Xxxxx the
local bureau to contact about setting
Xxxxxxx,
Xxxxxxxx
00000 up
an account or obtaining other
information.
Attachment
1
Exhibit
L
RELEVANT
SERVICING CRITERIA
L-1
EXHIBIT
M-1
ADDITIONAL
FORM 10-D DISCLOSURE
Item
on Form 10-D
|
Party
Responsible
|
Item
1: Distribution and Pool Performance Information
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Master
Servicer
Trust
Administrator
|
Item
2: Legal Proceedings
per
Item 1117 of Reg AB
|
(i)
All parties to the Transfer and Servicing Agreement (as to themselves),
(ii) the Trust Administrator as to the issuing entity, (iii) the
Depositor
as to the sponsor, any 1106(b) originator, any 1100(d)(1)
party
|
Item
3: Sale of Securities and Use of Proceeds
|
Depositor
|
Item
4: Defaults Upon Senior Securities
|
Trust
Administrator
|
Item
5: Submission of Matters to a Vote of Security
Holders
|
Trust
Administrator
|
Item
6: Significant Obligors of Pool Assets
|
Depositor
|
Item
7: Significant Enhancement Provider Information
|
Depositor
|
Item
8: Other Information
|
Any
party responsible for disclosure items on Form 8-K
|
Item
9: Exhibits
|
Trust
Administrator
|
M-1
EXHIBIT
M-2
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
|
Item
15: Exhibits, Financial Statement Schedules
|
Trust
Administrator
Depositor
|
Additional
Item:
Disclosure
per Item 1117 of Reg AB
|
(i)
All parties to the Transfer and Servicing Agreement (as to
themselves), (ii) the Trust Administrator as to the issuing entity,
(iii)
the Depositor as to the sponsor, any 1106(b) originator, any 1100(d)(1)
party
|
Additional
Item:
Disclosure
per Item 1119 of Reg AB
|
(i)
All parties to the Transfer and Servicing Agreement as to themselves,
(ii)
the Depositor as to he sponsor, originator, significant obligor,
enhancement or support provider
|
Additional
Item:
Disclosure
per Item 1112(b) of Reg AB
|
Depositor
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Reg AB
|
Depositor
|
M-2-1
EXHIBIT
M-3
ADDITIONAL
FORM 8-K DISCLOSURE
Item
on Form 8-K
|
Party
Responsible
|
Item
1.01- Entry into a Material Definitive Agreement
|
All
parties
|
Item
1.02- Termination of a Material Definitive Agreement
|
All
parties
|
Item
1.03- Bankruptcy or Receivership
|
Depositor
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
|
Depositor
|
Item
3.03- Material Modification to Rights of Security Holders
|
Trust
Administrator
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
|
Depositor
|
Item
6.01- ABS Informational and Computational Material
|
Depositor
|
Item
6.02- Change of Servicer or Securities Administrator
|
Master
Servicer, Trust Administrator, Seller
|
Item
6.03- Change in Credit Enhancement or External Support
|
Depositor
|
Item
6.04- Failure to Make a Required Distribution
|
Trust
Administrator
|
Item
6.05- Securities Act Updating Disclosure
|
Depositor
|
Item
7.01- Reg FD Disclosure
|
Depositor
|
Item
8.01
|
Depositor
|
Item
9.01
|
Depositor
|
M-3-1
EXHIBIT
M-4
ADDITIONAL
DISCLOSURE NOTIFICATION
[ ],
as Trust Administrator
[ ]
Attn: [ ]
RE: **Additional
Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and
Gentlemen:
In
accordance with Section [ ] of the Transfer and Servicing Agreement, dated
as of
[_______________], by and among SunTrust Mortgage Securitization, LLC, as
Depositor, [_______________], as Master Servicer and Trust Administrator,
SunTrust Mortgage, Inc., as Servicer, STB Real Estate (Georgia), Inc., as
Seller
and [_________________], as Indenture 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:
M-4-1
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
Schedule
A-1
SCHEDULE
A-1
Schedule
A-1-1